Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.94/2020
MHCC010002552020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.94 OF 2020
(CNR NO.MHCC01-000255-2020)
IN
S. C. SUIT NO. 5687 OF 2006 (DISPOSED OF)
Andhra Bank )...Plaintiff
Versus
Jitendra Dayabhai Mistry and others )...Defendants
Appearance :-
Learned Advocate Yasmin Sarang for plaintiff.
Learned Advocate Paras N. Vira for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15
DATE : 12/12/2023.
ORDER
1 This notice of motion is taken out by defendant No.1 in
disposed of S. C. Suit No.5687 of 2006. It is his contention that after
receipt of writ of summons, he appeared and filed written statement.
Thereafter, issues came to be framed. The plaintiff tendered affidavit of
evidence and the suit was fixed for admission denial/exhibiting of
documents. However, on 24/09/2019, the Court has passed decree in
favour of plaintiff as if it is ex-parte suit. The defendant No.1 was not
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given the opportunity to contest the suit though he had appeared before
the Court and filed written statement. Therefore, decree passed against
defendant No.1 needs to be set aside. As soon as he learned about
passing of the decree, he filed this notice of motion. Thus, defendant
No.1 prayed for setting aside the ex-parte decree under Order IX Rule
13 of Code of Civil Procedure (in short “C.P.C.) with condonation of
delay.
2 The plaintiff resisted the notice of motion by filing reply
contending that no proper reason is mentioned for the delay caused,
notice of motion is not maintainable and prayed for dismissal of notice
of motion.
3 Heard both the sides. Perused the record, it reveals from
the record that the defendant No.1 appeared and filed written
statement. It also appears from the record that the suit was originally
filed before the Hon’ble High Court and it was later on transferred to
this Court. After filing the written statement, as per roznama dated
24/08/2015, issues were framed. On 05/03/2016, plaintiff tendered
affidavit of evidence and suit appeared to be proceeded ex-parte against
defendant Nos.2 and 3, and defendant No.1 was present. He tendered
reply to the documents filed by plaintiff vide Exhibit-04 on 22/09/2016.
Suit was adjourned for exhibiting of documents/admission denial.
However, on 24/09/2021, the plaintiff tendered fresh affidavit of
evidence and at 3.40 p.m., Court had passed judgment.
4 On perusal of judgment, it reveals that Court has observed
that none of the defendants appeared and contested the suit. On the
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date when the judgment was passed, learned advocate for the plaintiff
was present. It was also her duty to point out or bring to the notice of
the Court that defendant No.1 has appeared and filed written
statement. As all these facts were not brought into the notice of the then
learned Predecessor, the judgment is passed as if it is an ex-parte suit.
Therefore, apparent mistake has been committed and defendant No.1
has been deprived from raising his defence, conducting cross-
examination of witness of the plaintiff. He is also prevented to adduce
his affidavit of evidence which is against natural justice. Thus, it is a fit
case where the decree passed deserves to be set aside.
5 It is vehemently argued by the learned advocate for
plaintiff that it is a decree under Order VIII Rule 10 of C.P.C. Therefore,
the defendant is required to file an appeal against the judgment.
However, it appears from the record that the Court has passed decree as
if it is an ex-parte suit. Even if it is presumed that it is a judgment
passed under Order VIII Rule 10 of C.P.C., this Court has ample power
to entertain this notice of motion under Order IX Rule 13 of C.P.C., as
observed by Hon’ble Bombay High Court in the case of Gaurang V.
Merchant and others Vs. Madhliso & Co. Pvt. Ltd. & Others reported in
2004(2) ALL MR 737. It is further vehemently argued by the learned
advocate for plaintiff that the delay is not properly explained. However,
considering the fact that the judgment is passed, ignoring the fact that
the defendant No.1 has already appeared and filed written statement, I
am of the view that the question of delay in taking out notice of motion
is not material. It is contended by the defendant No.1 that as soon as he
came to know about the passing of decree without giving him an
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opportunity, he filed notice of motion. This contention needs to be
treated as true and correct. Hence, I am of the view that the notice of
motion deserves to be allowed as prayed for. In the result, I proceed to
pass the following order :-
ORDER
1. Notice of Motion No.94/2020 in S. C. Suit
No.5687/2006 (Disposed of), is hereby allowed.
2. Delay stands condoned.
3. Decree passed in S. C. Suit No.5687/2006, stands set
aside and restored to its original stage.
4. Parties to the notice of motion are directed to appear
in the suit on 01/02/2024.
5. Notice of Motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 12/12/2023 C.R. No.15
Dictated on : 12/12/2023
Transcribed on : 12/12/2023
Signed on : 13/12/2023
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“Certified to be true and correct copy of the original signed order”.
13/12/2023
at about 12.27 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 12/12/2023
Order signed by Hon'ble Judge on : 13/12/2023
Order uploaded on : 13/12/2023
at about 12.27 p.m.
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