Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.3321/2019 in Suit No.8321/1998
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3321 OF 2019
CNR NO.: MHCC010090302019
IN
SUIT NO. 8321 OF 1998
(HIGH COURT SUIT NO. 4074 OF 1998)
1. Savitridevi Shivdutsingh Bhadoria ]...Deleted
(Since deceased)
2. Sushma Vedprakashsingh Rathore ]...Plaintiff
Versus
1. Suresh Shivduttsingh Bhadoria ]...Deleted
1A. Sonal Suresh Bhadoria & others ]...Defendants
Appearances:-
Advocate Mr. Singh for the plaintiff.
Advocate Mr. Ketan Chotani for the defendants.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 4th NOVEMBER, 2020.
ORAL ORDER
This Notice of Motion filed by defendant to set aside judgment
and order dated 5th April 2019 and set aside no cross order and allow
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defendant to lead evidence in the suit.
Allegations of defendant are as under:
2. Defendant has stated that the suit was transferred to this Court in
the year 2012 and in the year 2015 the matter was referred for
mediation. Defendant has further stated that in August, 2016 their
Advocate was discharged from the matter and therefore, they requested
other Advocate to appear in the suit and thereafter they appointed
Advocate Mr. Bhavin Gada in March 2017 and instructed him to appear
in the suit. Defendant has stated that since July, 2017 the said Advocate
was appearing for them and on few occasions he updated stating that
matter is pending for admissibility of documents. They have further
stated that their Advocate told them that when the exercise of marking
of documents is done by the Court, he will get in touch with them for
deciding the line of cross-examination and told that their personal
appearance is not required. They have further stated that defendant
No.2 suffered from severe heart and other ailments and was
hospitalized on number of occasions and defendant No.1(a), was going
through tremendous mental trauma due to domestic disturbance.
Defendants have further stated that since past few months, the son and
husband of defendant No.1(c) were diagnosed with chicken pox one
after another and in-laws were ill. Therefore, they were constantly
running around various hospitals. Defendants have further stated that
in August, 2019 when they went to meet their Advocate personally as
he was not responding to the messages since past few months, he told
them that he has lost track of the matter and told them that he will
update them. But as they did not get any response from him, they got in
touch with other advocate who told them that the suit is already
decreed. Defendants have stated that their Advocate was appearing
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since July 2017 and he was absent only on one date i.e. 03.03.2018.
Defendants have further stated that the application by plaintiff for
recasting issues was not served on them. Defendants have further stated
that the issues framed by the Hon’ble High Court are not considered
while passing final judgment and decree. Defendants have further
stated that the effect of demise of original plaintiff No.1 during the
pendency of the suit on the maintainability of the present suit is not
considered, though the same materially altered the rights of the
surviving plaintiff and defendant No.1. Defendants have further stated
that plaintiff were personally aware of defendant medical and personal
trauma’s and choose to snatch ex-parte judgment and decree.
Defendants have further stated that in view of the fact that
testamentary suit is pending between parties, this suit could not have
been decreed. Defendants have further stated that they have no
grievance against their erstwhile advocate. The present state of affairs
happened only because they simply believed and relied upon their
advocate to represent and protect their interest and will inform them as
and when their presence in the matter was necessary and required.
Defendants have further stated that they simply believed and reposed
faith in their advocate and therefore, they should not be penalized in
the form of ex-parte decree which is contrary to and beyond the facts on
record. Defendants filed rejoinder and stated that defendant No.2 is
undergoing multiple ailments including severe diabetes, slip disc,
vertigo, high blood pressure and has undergone angioplasty. It is further
stated that defendant No.2 has a heart rate of 20% and has twice
suffered heart attack since 2015 and also has dysfunction in her lungs.
They have further stated that defendant No.1(a) suffered from severe
acute case of migraine. It is further stated that defendant No.1(b)
suffered from severe case of Malaria in the month of October 2015 and
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was hospitalized. It is further stated that defendant No.1(c) was
hospitalized twice in the year 2016 suffering from Dengue attacks.
Defendants have further stated that they should be given an opportunity
to contest the suit and no loss and prejudice would be caused to the
plaintiff thereby and prayed to allow Notice of Motion.
3. Plaintiff has filed reply and stated that defendants did not attend
the matter regularly although they were keeping watch over the matter.
Plaintiff has further stated that the Notice of Motion is filed beyond the
period of limitation without assigning any cogent reasons for not
attending the matter for almost three years. Plaintiff has further stated
that since the receipt of mediation report the defendants and their
Advocate remained absent till August, 2016 when the defendant’s
advocate informed the Hon’ble Court about no instructions for last 4
years inspite of giving notice and hence by placing the notice on record
advocate Ms. Jhaveri made an application for withdrawal of her
appearance. Plaintiff has further stated that from this it is very clear
that the defendants without any proper reasons preferred not to attend
the matter. Plaintiff has further stated that from 20th August 2016 till
24th October 2016 defendants and their Advocate did not appear.
Plaintiff has further stated that on 8th December 2016, defendant
No.1(b) appeared and informed that he will engage new Advocate and
on 4th February 2017, defendant No.1(c) along with Advocate Ms.
Thapa appeared. Plaintiff has further stated that defendant No.1(c)
herself is an Advocate of more than 10 years practice. Plaintiff has
further stated that on 29th July 2017, Advocate Mr. Gada appeared for
defendants and on 29th August, 2017 Advocate Ms. Rajlakshmi
appeared but they did not file their Vakalatnama for defendants.
Plaintiff has further stated that without filing Vakalatnama on 22nd
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September 2017, Advocate Mr. Gada filed reply to admission and denial
and on 7th April 2018 Advocate Mr. Gada attended the matter and
thereafter he also did not appear. Plaintiff has further stated that all the
reasons stated by defendants are untenable in law. Plaintiff has stated
that no documents are produced to substantiate the claim that
defendant No.2 suffered from heart and other ailments. Plaintiff has
stated that defendant No.2 has been moving around quite comfortably
and travelling out of town regularly which shows that she is quite well.
Plaintiff has stated that all the claims made by defendants are without
any documentary evidence. Plaintiff has further stated that defendants
were well aware on the date of passing of the judgment and decree of
the suit as they were keeping watch on the matter. Plaintiff has further
stated that the issue recast was required as there was only typographical
mistake in it. Plaintiff has denied all material allegations against them.
Plaintiff has further stated that they were seeking peaceful possession
and not forcible possession but defendant did not give peaceful
possession and prayed for rejection of Notice of Motion.
4. Defendants have contended that the ex-parte decree be set aside.
But in the present suit defendants have filed written statement and
issues are framed. Therefore, the contention that this is the ex-parte
decree, does not appears to be correct one. It appears after the suit is
transferred from the Hon’ble High Court to City Civil Court and both the
parties appeared in the suit on number of dates in the year 2013, 2014
and then the matter was adjourned for mediation report. It appears,
after Mediation Report was received as mediation failed, the issues were
framed. It appears, as per the roznama dated 20.08.2016 that:
Adv. Shri. V.C. Singh for plff. present.
Adv. Ms. Zhaveri for deft. present.
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Adv. Zhaveri for deft. submitted that since last four years defendants are
not giving any instructions nor responding to her letter. She has placed
on record a copy of letter dated 08.08.2016, requesting defendants to
give instructions and to attend her office. It is submitted that deft. did
not turn up to Advocate.
Order passed below Exh.8
In view of submission of Adv. Zhaveri, she is discharge as an adv. for
defts. Adv. Zhaveri to intimate the next date to the defts. Case to be
fixed for admission and denial of documents on 24.10.2016.
From the roznama dated 20.08.2016 it appears, defendants were
not giving instructions to their Advocate since last four years and
therefore she placed the letter on record. According to plaintiff, they
appointed advocate Gada around March, 2017 for them for this suit and
he assured them that he will update about the matter.
Roznama dated 20.01.2018 states that:
Adv. B.C. Singh present for the plff.
Adv. Mr. Gada present for the deft.
PW1 present.
Ld counsel for the plff submitted that, there is no VP after withdrawal of
Adv. Zhaveri on 20/08/2016. Ld counsel for Deft Mr. Gada submitted
that, he will file his VP on next date to proceed with suit and undertake
to file the same. Hence matter adj. for further Chief Examination and
Admission and Denial on 03.03.2018.
Roznama dated 29.08.2017 states that:
“Adv. Singh for plff present.
Jr of Adv Rajlakshmi submitted that her senior is suffering from Chicken
pox, therefore, she sought Adj for filing Vakalatnama and Admission of
document to 22.09.2017.” Such roznamas show that even Vakalatnama
not filed for defendants on record. According to defendants, in March
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2017 they handed over signed Vakalatnama to their advocate. But
roznama’s shows no Vakalatnama filed. From such roznama’s it appears,
defendants failed to remain present before Court and proceed with suit
continuously since 03.03.2018. As per roznama dated 20.01.2018
advocate Gada submitted that he will submit his VP for defendants on
next date. There is no explanation as to if its completely only
defendants advocate mistake then why defendants have not given any
documents or affidavit of advocate on record showing that they gave
any such Vakalatnama to their advocate who allegedly assured them
that he will update them about the matter. Further defendants have
stated that they are not going to take any action against their advocate.
Therefore, such contention of defendant that its advocate mistake and
not of them is not believable. There is no believable and reasonable
explanation why from 03.03.2018 defendant and his advocate did not
appear till suit is decreed.
5. It appears issues are again framed by this Court on 17.11.2015. It
appears, till the year 2017 no objection is taken by defendants for the
issue framed by court though defendant was appearing in the suit.
Defendant has not explained also what harm is caused to them due to
framing of issues again in the suit. Therefore, such contention raised
that issues previously framed are not considered by court while passing
decree at this stage is without any substance and is reject.
6. It appears, though defendants are alleging that they have
undergone through major medical ailments but not a single medical
certificate or documents produced on record showing that in the
relevant period defendants were ill and therefore unable to attend the
Court. Plaintiffs have specifically alleged that defendants were keeping
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watch over the matter. Plaintiffs have alleged that one of the defendant
is an advocate. Defendants have also stated in their affidavit that, the
parties are residing together in the suit flat. As no documents are
produced regarding the medical ailments alleged by defendant, it is not
believable that due to such medical problem in the relevant time
defendant failed to attend the matter.
7. It appears that suit is decreed on 5th April, 2019. There are no
medical documents showing that in the relevant period and thereafter
till filing of this Notice of Motion in September, 2019 defendants were
suffering from medical problem and therefore, they did not appear in
the matter. There is no reason or explanation given as to why
defendants have not produced medical documents regarding medical
ailments and problems. The roznama clearly reflects that according to
defendant’s advocate, in 2016 defendants were not giving instructions
to the advocate and therefore, the advocate withdrawing from the
matter, thereafter another advocate who appeared submitted that he
will file Vakalatnama for defendants but did not file Vakalatnama even
after long period shows that defendants were not attending the matter
either through themselves and through advocate. These circumstances
does not support defendants contention that it was advocate’s mistake
that advocate did not inform or updated them about the matter. Due to
all these circumstances, it appears defendants have intention to delay
the proceedings.
8. Ld. Counsel for the plaintiff cited judgment of the Hon’ble
Bombay High Court in case of Ujwal Chandrashekhar Belapurkar vs.
Kalpana Vijay Saindane (Nandedkar) and others reported in 2018(4)
Mh.L.J., in which it is held that, “
thereafter, having regard to the
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conduct of the petitioner throughout the proceedings, that of remaining
totally careless and negligent, despite knowing the consequences of his
act of remaining absent, clearly indicates that the entire attempt of
remaining absent on the part of the petitioner is to frustrate the
proceedings initiated by the respondents and not to allow them to enjoy
the fruits of the decree.” In the case in hand also defendants remained
absent for long time and record shows not contacted even their
advocate. Therefore, this case law is applicable to case in hand.
Ld. Counsel for the plaintiff cited judgment of the Hon’ble
Bombay High Court in case of Dattu Bala @ Santu Patil vs. Maruti Bapu
Patil and others reported in 2019(4) Mh.L.J., in which it is held that,
“it shows that, the applicant was well aware of the suit proceedings and
thus it cannot be said that, he was not aware of the decree passed by
the trial Court in April, 2013. Even otherwise, he applied for the
certified copies in June, 2013, i.e. nearly after two months and this
delay on his part has not been explained. The appellant has not placed
any evidence on record to show that, he had sustained injuries and
therefore he could not move out of the house. There is absolutely, no
explanation as to why the Regular Civil Appeal was not filed soon after
the lawyers strike was called off. In the circumstances, I do not see any
reason to interfere with the order passed by the learned District Judge
which is impugned in this Second Appeal.” In the case in hand also
defendant did not file any medical documents on record to substantiate
claim that defendants were having medical problems. Further roznamas
of the suit shows that defendants advocate withdrawn Vakalatnama as
defendants were not instructing them and another advocate appearing
for them could not filed Vakalatnama for them and defendants
remained absent since long time and not proceeded with suit without
any reasonable and sufficient cause. Therefore, there are no reasonable
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grounds to set aside judgment and order passed in the suit and this case
law applicable to case in hand.
9. As discussed above, there are no reasonable grounds to condone
the delay in filing Notice of Motion and there are no reasonable grounds
to set aside the decree passed in this suit. Hence, following order :
ORDER
Notice of Motion No.3321 of 2019 is rejected.
(SONALI P. AGARWAL)
Judge,
Date: 04.11.2020. City Civil Court,
Gr. Bombay.
Dictated on : 04.11.2020
Transcribed on : 04.11.2020
Signed on : 04.11.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.11.2020 At 12:40 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SONALI P. AGARWAL
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
04.11.2020
Judgment/Order signed by P.O. on 04.11.2020
Judgment/Order uploaded on 11.11.2020
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