Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-203.18 Suit.2765-13
CNR NO. MHCC01 0007842018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.203 OF 2018
IN
S.C. SUIT NO.2765 OF 2013
Smt. Ranjana Vilas Kakade ].. Applicant/Org.Defendant
No.1
IN THE MATTER OF
Smt. Indubai w/o. Ramchandra ]
Kakade. ] Plaintiffs.
Versus
1. Smt. Ranjana Vilas Kakade ]
2. Mr. Vivek Pravin Jagtap ]
3. Mr. Vilas Ramchandra Kakade ].. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 9th July, 2018.
Adv. Sunilkumar Karoth for applicant.
Adv. Vijay Misra for Plaintiff.
ORDER
The applicant/defendant No.1 has taken out this notice of
motion for setting aside the order and decree dated 20/04/2016.
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2. The applicant has submitted that vide order dated
20/04/2016 the suit was decreed declaring therein that defendants
have no right, title an interest in the suit premises and by mandatory
injunction they were directed to quit the suit room. It is stated that due
to this order grave injustice, irreparable loss and damages are caused to
her. She has stated that the plaintiff is her motherinlaw and the
defendant No.3 is her husband. The suit was filed in collusion with
defendant No.3 and the defendant No.3 admitted the claim of the
plaintiff even though he never stayed in room. She has stated that she
alongwith defendant No.2, who is grand son of the plaintiff and son of
the defendant No.3 is residing in the suit premises on the upper floor
and lower portion of the room is rented out. She has stated that the
premises is her marital home. She had engaged an Advocate to appear
in suit. But she could not afford the fees of the lawyer, therefore the
lawyer discontinued the matter without informing her. Therefore, she
was unable to attend the court. She was informed by the Advocate that
he will take care of the matter. She being illiterate lady forget about
the suit. She has stated that with great struggle she has raised kids and
if she is removed from the suit premises, she will suffer irreparable loss,
hence the present notice of motion.
3. Plaintiff filed her reply stating that defendant was party in
the suit. Plaintiff has adduced her evidence and the suit was decreed
on merits. The defendant is creating problem in execution of decree
and did not vacate the suit premises and made an application to that
effect effect. She has denied that the defendant remained absent and
hence suit is decreed. It is stated that suit is decreed after considering
her documents. She has denied that defendant No.3 is in collusion with
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her. Further, no strong case is made out for setting aside the decree.
Moreover, the notice of motion is also not maintainable, therefore on
these grounds the plaintiffs have prayed for dismissal of notice of
motion.
4. Heard Advocate for the plaintiff and defendants.
5. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether the defendant No.1/
applicant is entitled for setting aside
the order and decree dated 20/04/2016 ? : No.
(2) What order ? : As per final order.
REASONS
Point No.1:
6. The Advocate for the defendant No.1 at the outset
submitted that the suit premises is the matrimonial home of the
defendant No.1. She was residing therein with her husband and she
has also filed matrimonial proceeding to get her rights. The collusive
suit was filed and the defendant No.3 consented and the decree was
passed. She has submitted that due to negligence of the Advocate she
could not proceed in the proceedings. The defendant has placed
reliance upon the decision in case of Rafik and Another Versus
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Munshilal and Another [1981 AIR (SC) 1400], to submit that the
party should not suffer for the inaction and deliberate omission on the
part of the Advocate.
7. Per contra, the Advocate for the plaintiff has submitted
that the present notice of motion is not maintainable. The court has
passed the judgment as per Order8 Rule5 of CPC. Therefore, only
remedy available for the defendant is to file an appeal. The court has
passed judgment on merits. The judgment is not exparte. To buttress
his contention he has relied upon the decision in case of State Bank of
India Versus Himalayan Tiles And Marble Pvt. Ltd. [1994 Mh.L.J.
31] and Dhanwantrai R. Joshi & others Versus Satish J. Dave &
Others [1998 (4) ALL MR 509], wherein the Hon’ble High Court has
held that in a decree or order under Order8 Rule5 of Code of Civil
Procedure, the remedy is only by way of an appeal and notice under
section9 Rule13 of CPC is not maintainable.
8. In the present case, the plaintiff has filed suit for
declaration and mandatory injunction. In that case the defendants were
admittedly served and defendant Nos.1 and 2 have appeared.
Therefore, the suit did not proceed exparte against the defendants. The
defendants have participated in the proceedings. The contention of the
defendants is that her Advocate did not inform her about the dates in
the suits and therefore she was unable to attend the court. However,
she has not stated what steps she herself has taken. Nodoubt, that the
party should not be made to suffer for the lapses on the part of the
Advocate, but at the same time the parties also have to be vigilant.
9. The plaintiff is a old lady. She has filed a suit for
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possession of the suit premises. The plaintiff has contended that the
defendant No.1 has performed second marriage and she started residing
with the suit premises alongwith her son from the second marriage.
The name of the defendant No.2 reflects that his name is not same as
that of defendant No.3.
10. I have perused the ratio laid down in the authorities cited
by the defendant. In case of State Bank of India (supra), the Hon'ble
High Court has held that while passing judgment under Order5 Rule
10 of C.P.C., the Court certainly goes in to the merits of the case, as
made out in the plaint and consider the same. In the present case, also
the court has considered the averments made in the plaint and
documents filed on record and thereafter given judgment. In the said
decision it is further mentioned that for the judgment under the
provisions of Order8 Rule 5 of C.P.C., the application for setting aside
the decree under Order9 Rule13 of the C.P.C., is not maintainable. In
the case of Tejbai Tejshi and others Versus Smt. Gangubai Dinanath
Ulvekar [(2002)(1) Mh.L.J. 350], the Hon’ble High Court has held
that in cases where judgment is passed under Order8 Rule5 of C.P.C.,
the only remedy is by way of First Appeal provided under the C.P.C. In
the case of Dhanwantrai R. Joshi (supra) the Hon’ble High Court held
that there is no provision in the Order8 for setting aside the decree
passed under Order5 Rule10 thereof. For non filing of written
statement is the only remedy open is to file appeal against the said
decree. In the present case, the defendant has not mentioned the
provisions under which she is challenging the order and decree. But,
the record reflects that she has appeared and participated in the suit.
Therefore, the decree is not exparte. In these circumstances, the notice
of motion is not maintainable. Therefore, I answer Point No.1 in
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negative and proceed to pass the following order.
ORDER
i) The Notice of Motion No.203 of 2018 is dismissed.
ii) Accordingly, notice of motion is disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 09/07/2018
Dictated on: 09/07/2018
Transcribed on: 10/07/2018
Signed on: 11/07/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
12/07/2018 at 11.a.m.
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
09/07/2018
Judgment/Order signed by P.O.on 11/07/2018
Judgment/Order uploaded on 12/07/2018
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