Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010057612019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2076 OF 2019
IN
EXECUTION APPLICATION NO.90 OF 2019
IN
SUIT NO.207 OF 2016
M/S. QUALITY CONSTRUCTION ]… Plaintiff
V/s.
SHRI K.V.O.A. SANGH A REGISTERED TRUST ]... Defendants
Appearances :-
Ld. Adv. Kumbhar for plaintiff.
Ld. Adv. Mota for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 4th March, 2020
ORAL ORDER
1. Defendant took out this Notice of Motion for setting aside
ex-parte Order if any, to allow the defendant No.1 to participate in the
suit, to contest the suit and to stay execution of the decree.
MHCC01-005761-2019
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2. Perused the Notice of Motion, affidavit in support of Notice
of Motion and reply of plaintiff. Heard both sides.
3. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether ex-parte Order if any can be
set aside?
In the negative.
2. Whether delay in filing Notice of
Motion can be set aside ?
In the negative.
3 Whether defendant can be allowed to
contest the matter?
In the negative.
4 Whether Execution of the decree can be
stayed?
In the negative.
5 What Order ? Notice of motion is
rejected.
REASONS
As to point Nos.1 to 5.
4. In brief, it is contention of the defendant No.1 that Mr.
Khushal Liladhar Gala is Trustee appointed by defendant No.1.
Defendant No.1 is Public Charitable Trust. The old Trustees did not give
heed to the summons and in conivance with the plaintiff allowed the
Court to pass order in favour of plaintiff. There were many issues of
quality of work. Therefore, the Notice of Motion be allowed as prayed
for.
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5. In brief, it is contention of the plaintiff that the Notice of
Motion is cryptic. It is devoid of particulars. Defendants have admitted
the service of summons. Inspite of service of summons defendant did
not care to attend the Court. Defendants were totally negligent and did
not care to attend the Court for two years after service of summons.
There are no reasonable and satisfactory explanation for not attending
the Court. There are no any particular of change of committee.
Execution application is already filed. Garnishee notice was issued.
Canara Bank, Bhandup Branch has already deposited the decretal
amount in the Court. Defendants have not made out any grounds for
setting aside the ex-parte decree. Therefore, Notice of Motion be
dismissed.
6. The Learned Advocate appearing for plaintiff relied upon
citation of Hon’ble Bombay High Court Bench of Nagpur in the case of
Sainath Mandir Trust Vs. Vijay V. Mandale 2004(2) Bom.C.R.375. In the
cited case suit was filed for enforcement of Civil rights. Therefore, it is
held in the cited case written consent of Charity commissioner in filing
the suit against Trust was not obtained and the suit was not barred by
Section 50 of Act, 1986.
7. The Learned Advocate appearing for defendant relied upon
two citations. He relied upon citation of Hon’ble Bombay High Court
bench at Nagpur, in the case of Shyamabai wd/. Surajkaran Joshi Vs.
Madan Mohan Mandir Sanstha decided i Appeal No.116 of 1998, dated
22.10.2013. In the cited case plaintiff had filed suit for ejectment,
possession and mesne profit. The suit was decreed. The decree was
challegned by filing appeal before the District Court Khamgaon. The
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said appeal dismissed and Judgment of Trial Court was confirmed. The
Madan Mohan Mandir Sanstha, a registered Public Trust had filed the
said suit. It was the case of the plaintiff that the original defendant
was inducted in the suit house as tenant on monthly rent of Rs.25/-.
8. The substantial questions before the Hon’ble High Court in
the Appeal against dismissal of First appeal were (1) Whether the Suit
filed in the present form by one of the trustees is maintainable without
all the trustees being joined as plaintiffs in the suit?
(2) Whether the Learned Additional District Judge was right in not
deciding the application filed by the appellant under Order 6 Rule 17 of
the Code of Civil Procedure at Exh.10, dated 07.04.1994, for
amendment of the written statement incorporating the defence about
non-joinder of proper and necessary parties ?
9. The Hon’ble High Court held in para 25 of the citations that
the suit is maintainable even though all trustees have not been joined as
plaintiffs in the suit. In this way the first substantial question of law
was answered in the affirmative. The Hon’ble High Court answered the
second question of law holding that the Learned Additional District
Judge though was wrong in not deciding the application vide Exh.10
under Order 6 Rule 17 of the Code of Civil Procedure filed by the
appellant, and his such failure has not resulted in causing of any
prejudice to the defence of the appellants and it was only a mere
irregularity on his part which had no bearing upon a just decision in the
case.
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10. The Learned Advocate appearing for defendant relied upon
2nd citation i.e. in the case of Sainath Mandir Trust Vs. Vijaya & Ors.
Decided on 13.12.2010. The Hon’ble Supreme Court set aside the
Judgment of the Hon’ble High Court and as also of the First Appellate
Court and restored the judgment and order of the Trial Court by
modifying the same. The substantial question before the Hon'ble
Supreme Court was that whether the suit could be entertained without
permission of the Charity Commissioner under Section 50 and 51 of the
Bombay Public Trust Act, 1950. It is held it was statutory requirement
of the Bombay Public Trust Act 1950 to approach the Charity
Commissioner before a suit could be instituted.
11. Perused Judgment passed in S.C. Suit No.207 of 2016
dated 02.07.2018. It is mentioned in para No.7 of the said Judgment
that “Suit summons came to be served upon defendants. However,
none appeared for defendants. Hence, suit came to be proceeded ex-
parte against defendants. As such, claim of plaintiff remained
unrebutted and unchallenged.
12. It means the said Judgment is delivered in absence of
defendants. It is ex-parte decree.
13. As per Order 9 Rule 13 of Code of Civil Procedure
defendant may apply to the Court to set aside Ex-parte decree by which
a decree is passed for an order to set it aside; and if he satisfies the
Court that the summons was not duly served, or defendant was
prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order for setting aside the
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decree as against him upon such terms as to costs, payment into Court
or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit.
14. Perused Order 9 Rule 3 of the Code of Civil Procedure. As
per the said Rule where neither party appears when the suit is called on
for hearing, the Court may make an order that the suit be dismissed.
15. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his non-appearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
16. Perused Article 123 of the Limitation Act, 1963. It provides
30 days from the date of the decree or where the summons or notice
was not duly served, when the applicant had knowledge of the decree
to set aside a ex-parte decree.
17. As per Article 123 of the Limitation Act, an application can
be filed to set aside the Ex-parte decree within 30 days from the date of
the decree or where the summons or notice was not duly served, when
the applicant had knowledge of the decree.
18. The said Judgment is delivered on 02.07.2018 Operative
part of the said Judgment runs as under:
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ORDER
1. Suit is decreed.
2. Defendant Nos.1 to 4, jointly and severally, do pay to
plaintiff Rs.6,46,640.28 with interest of Rs.51.732/-, up
to filing of the suit.
3. Defendant Nos.1 to 4, jointly and severally, do pay
interest @ 8% per annum from filing of the suit till
realization of the entire decreetal amount on the
outstanding amount of Rs.6,46,640.28/- to plaintiff.
4. Parties are directed to bear their costs.
5. Decree be drawn up accordingly.
19. This Notice of Motion is filed on 10.06.2019. There is
delay in filing the Notice of Motion.
20. It is prayed in the Notice of Motion to set aside the order of
ex-parte, if any. It means the defendant No.1 is not sure whether any
ex-parte order is passed or not. As to why the defendant has not
specifically mentioned in the Notice of Motion as well as in the affidavit
in support of Notice of Motion to set aside ex-parte decree is best
known to the defendant No.1. The grounds raised in the affidavit in
support of Notice of Motion is that the old trustees did not give heed to
the summons and in connivance with the plaintiff allowed this Hon’ble
Court to pass order in favour of plaintiff. I am of the opinion that the
said ground is not satisfactory and convinsing to set aside the said ex-
parte decree which is also not specifically prayed. Therefore, I do not
find substance to condone the delay in filing Notice of Motion and to set
aside the ex-parte decree. Therefore the Notice of Motion is liable to be
rejected. Hence following order:
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ORDER
Notice of Motion No. 2076 of 2019 is rejected and disposed
of accordingly.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 04/03/2020 City Civil Court, Gr. MUMBAI
Dictated on0 : 04/03/2020.
Transcribed on : 16/03/2020.
Signed on : 21/03/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
Due to Covid-19 lockdown, the
Court was not functioning and
therefore upload on
13.06.2020 at 02.50 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 04.03.2020
Judgment/order signed by P.O. on 21.03.2020
Judgment/order uploaded on 13.06.2020
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