Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.903-19 in S.C.SUIT no.110301-88
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 903 OF 2019
(CNR no. MHCC010023902019)
IN
S.C. SUIT NO. 110301 OF 1988
(CNR no. MHCC010066332012)
(HIGH COURT SUIT NO. 3861 OF 1988)
1. Pravin Jayantilal Chauhan & 3 ors. ]... Plaintiffs
Versus
1. Aminaben Attaulla Khan & 9 ors. ]... Defendants
And
1. Humera Attaulla Khan & 4 ors. ]... Applicants
(original defendant nos. 5 to 8)
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 12th April, 2019.
Mr. Shah, advocate for plaintiffs.
Mr. Retiwala, advocate for applicants / original defendant nos. 5 to 8.
None for remaining defendants.
ORDER
1. The applicants / original defendant nos. 5 to 8 have taken
out this motion seeking condonation of delay caused in preferring this
motion and further for setting aside ex parte decree dated 19.09.2017
passed in suit no. 110301 of 1988.
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2 NM no.903-19 in S.C.SUIT no.110301-88
2. The learned advocate for the applicants submitted that the
suit was filed in 1988. Evidence was recorded before the Court
Commissioner in 2012. After change in pecuniary jurisdiction, the suit
was transferred from the Hon'ble High Court to City Civil Court.
According to her, the defendant no. 5 made inquiries about the suit at
City Civil Court, Dindoshi, but he could not trace out the same. She
submitted that the suit was required to be transferred at Dindoshi
Court, but it was transferred to main branch.
3. According to her, Mr. Vyas, advocate for defendants
expired in 2012 and the defendant no. 5 was conducting the suit in
person. In 2006 and 2014 the suit was dismissed for default twice.
However, the notice of its restoration was not received by the
defendants. The defendants came to know about the passing of ex parte
decree on 17.12.2018 when the warrant of attachment of their property
was served upon the defendants at their current address.
4. According to her, the defendant nos. 4, 6 to 8 preferred
first appeal. The applicants could not get the certified copy till
11.02.2019. According to her, the status of the decree is an ex parte
decree. The amended plaint was never served on the defendants. The
defendant nos. 1, 2, 3 and 3(a) respectively expired in 1991, 2012,
1997 and 2011. According to her, one advocate Mr. P. M. Shah had
appeared for all the defendants on some of the dates. However, he was
not appointed by either of the defendants. According to her, the decree
being an exparte, is required to be set aside and the suit be heard and
decided on merits. She placed reliance on the following authorities :
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3 NM no.903-19 in S.C.SUIT no.110301-88
I. A.I.R 2008 Supreme Court 2054.
Reena Sadh vs. Anjana Enterprizes
Ratio : As per the Delhi High Court rules and orders, the presiding
officer of the Court from where the matter was transferred was
responsible for informing the party regarding the transfer as also the
date on which parties were supposed to be present before the Court to
which case is transferred. The requirement is mandatory. Non
compliance thereof is by itself sufficient to set aside ex parte decree.
II. Civil Appeal nos. 25822583 of 2011.
G. Ratna Raj (D) by L.Rs. vs. Shri. Muthukumarsamy
Permanent Fund Ltd.
Ratio : When the trial Court proceeded to hear suit ex parte by taking
recourse to the Order IX Rule 6(a) in terms of Order XVII Rule 2 of
C.P.C. as the defendants were absent despite the service of summons
and accordingly passed preliminary decree. Such decree was an exparte
decree and could be set aside under Order IX Rule 13 of C.P.C. on
making out sufficient ground.
5. On the other hand, the learned advocate for the plaintiffs
submitted that all the defendants by filing their written statement
contested the suit. They participated in the trial by cross examining the
PW1 and PW2 at length. Thereafter, they remained absent without any
justification and did not lead evidence. Therefore, the decree passed is
not an ex parte decree. According to him, the defendants were informed
by the Court Commissioner that the suit has been transferred from the
Hon'ble High Court to Bombay City Civil Court. The Court
Commissioner filed its report. After demise of advocate Vyas the
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4 NM no.903-19 in S.C.SUIT no.110301-88
defendant no. 5 was conducting the suit in person. According to him,
there is no sufficient cause to set aside the decree under Order IX Rule
13. The defendants are trying to obstruct execution of the decree by
raising false grounds. According to him, the application under Order IX
Rule 13 is only maintainable if summons was not duly served or the
defendant was prevented by sufficient cause from appearing when the
suit was for hearing. He placed reliance on the following authorities:
I. A.I.R. 2009 Rajasthan 57.
Madanlal vs. Prabhu Daya
Ratio : When the defendant participated in the suit proceeding after
service of summons and filed written statement and then absented
himself at the stage of defence evidence and chose not to appear it was
sheer case of negligence on the part of defendant and he lacked
bonafides. There can no sufficient cause for setting aside ex parte order.
II. A.I.R. 2011 Supreme Court 1150.
Parimal vs. Veena
Ratio : Expression sufficient cause means the cause for which defendant
could not be blamed for his absence. In order to determine the
application under Order IX Rule 13 of the C.P.C. the test has to be
applied is whether the defendant is honestly and sincerely intended to
remain present when the suit was called for hearing and did his best to
do so.
6. Considering the aforesaid facts and circumstances and
ratios under citations the decree impugned would be an ex parte
decree. Under such circumstances, in view of the ratio laid down by the
Hon'ble High Court of Bombay in the case of Khurshed Banoo vs.
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5 NM no.903-19 in S.C.SUIT no.110301-88
Murtaza Hasan reported in A.I.R. 2003 Bombay 52, the defendants
have three remedies firstly, to file a notice of motion / an application
for setting aside ex parte decree under Order IX Rule 13 of C.P.C.;
secondly, to prefer an appeal against ex parte decree under Section
96(2) of C.P.C.; thirdly, to seek review against the same Court. It was
further held that once appeal is dismissed, subject to limitation
application under Order IX Rule 13 of C.P.C. can not be pursued, except
withdrawn. However, application under Order IX Rule 13 even rejected,
no such limitation would apply to an appeal so preferred under Section
96(2) against an ex parte decree. Even an application is rejected, the
appeal being substantive remedy can be pursued. If application is
allowed, the appeal would become infructuous, as decree would be non
est.
7. So also in view of the ratio laid down by the Hon'ble High
Court of Bombay in the case of Vijay vs. Kamini reported in 2001(2)
Mh.L.J. 955 the Explanation to Order IX Rule 13 of C.P.C. prevents
litigants from approaching two forums simultaneously. An application
under IX Rule 13 of C.P.C. becomes non maintainable as soon as
appellate jurisdiction is invoked. At this juncture the learned advocate
for the applicants submits that the applicants – original defendant nos.
4, 6 to 8 had preferred first appeal (st) no.2741 of 2019 on 28.01.2019
against the impugned ex parte decree and the same has been disposed
off as withdrawn on 08.04.2019 by the Hon'ble High Court (Coram : K.
K. Tated J.). Her statement is accepted and taken on record for the
purpose of decision of this motion. She also submits that the defendants
had filed written statement in the suit.
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6 NM no.903-19 in S.C.SUIT no.110301-88
8. Considering the aforesaid facts, it appears that after
transfer of the suit from the Hon'ble High Court to the City Civil Court,
there was no notice of the transfer of the suit from either of the Courts
to the defendants. Nothing has been placed on record to show that a
notice was published on the notice board of either of the Courts, so as
to declare the transfer of the suit. The roznama shows that advocate
Pankaj Shah, advocate Modi, advocate Dedhia were present for
defendant no. 9 intermittently. On 11.08.2014, as per order passed in
roznama it appears that in absence of defendant nos. 1 to 8, their
evidence was closed and the matter was adjourned for evidence of
defendant no. 9. It also appears that on 19.09.2014, when advocate
P.M. Shah for defendant no. 9 was present and prayed for adjournment
on the ground of his hospitalization. By rejecting the said application
his evidence was closed and the matter was posted for arguments.
9. It also appears from roznama that the chamber summons
no. 431 of 1991 for amendment of the plaint to bring defendant no. 9
on record was allowed with a direction to serve the copy of amended
plaint to all the defendants. However, the plaintiffs have not placed on
record anything to show that they complied with the said order by
supplying copies of amended plaint to the defendant nos. 1 to 8.
Thereafter, the defendant no. 9 cross examined the plaintiffs' witness
and subsequently, the impugned judgment, order and decree were
passed on 19.09.2017 partly decreeing a money recovery suit.
10. Thus, it appears that the aforesaid advocates Mr. P. M.
Shah, Mr. Modi and advocate Dedhia were not representing the
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7 NM no.903-19 in S.C.SUIT no.110301-88
defendant nos. 1 to 8 at the relevant time and they were only
representing the proposed defendant no. 9 for the purpose of aforesaid
chamber summons and thereafter, only for defendant no. 9 in the suit.
Thus, in fact and effect the hearing of the suit conducted ex parte
against the defendant nos. 1 to 8 in view of the ratio laid down in the
case of Reena Sadh as well as G. Ratna Raj referred to above. There is
nothing on record to show that the notice of transfer of the suit was
served on the defendants. Thus, at the relevant time the defendants
were prevented by a sufficient cause from contesting the suit before this
Court, as they were not having notice of transfer of the suit from the
Hon'ble High Court to City Civil Court. Therefore, it is just, fit, proper
and necessary to allow the motion by condoning delay, if any, and to set
aside the decree dated 19.09.2017 against the applicants – defendant
nos. 4 to 8. Thus, the following order is passed:
ORDER
1. The Notice of Motion no. 903 of 2019 is made absolute in terms
of prayer clause (a) and (b) in respect of defendant nos. 4 to 8.
2. Parties to bear their own costs of the notice of motion.
Sd/-
(Dr. M. S. Deshpande)
Judge,
Date : 12.04.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 12.04.2019
Checked by HHJ on : 15.04.2019
Signed by HHJ on : 15.04.2019
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8 NM no.903-19 in S.C.SUIT no.110301-88
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.04.2019 at 11.00 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
12/04/2019
JUDGMENT/ORDER signed by
P.O. on
15/04/2019
JUDGMENT/ORDER uploaded
on
16/04/2019
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