Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3946/19(Suit-4818/11)
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3946/2019
(CNR No.MHCC010108912019)
IN
S.C. SUIT NO.4818/2011
1. Aparna Shankar Gujar
2. Prashant Shankar Gujar ..Plaintiffs
V/s.
1. Gajanan Chintaman Gujar
2. Vigneshwar Coop. Hsg Ltd. .. Defendants.
Appearances :
Adv. Mr Pradhuman Chauhan h/f. Adv.Mr.Shashank Mangle for
plaintiff.
Adv. Mr R. R. Pandey for defendant no.1 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03.
Date : 15.11.2021.
ORDER
1. Defendant no.1 has filed instant Notice of Motion seeking
following reliefs:
(a) That the exparte order dated 16.11.2016 and decree dated
16.12.2017, passed in S.C Suit No. 4818/2011 be set
aside/quashed and the suit be heard and decided on merits.
(b) That the defendants be allowed to file his defence/ written
statement in the suit on such terms and conditions as this
Hon'ble Court may deed fit and proper.
(c) That the delay of 693 days in taking out present notice of
motion be condoned in the interest of justice.
(d) Pending the hearing and till final disposal of this notice of
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motion the execution, effect, operation, attachment and
implementation of judgment and decree dated 16.12.2017
passed in S.C. Suit No. 4848/2011 be stayed.
(e) Interim and adinterim reliefs in terms of prayer clause(d)
above be granted.
(f) Such other and further order may be passed in the interest of
justice in favour of the defendant.
2. It is the contention of the defendant no.1 that, he came to
know from his family members about passing of exparte decree in the
present matter. It is contended by the defendant no.1 that, he came to
know on 19.8.2019 when Execution Application was served upon him.
He immediately contacted his advocate and instructed him to take
appropriate steps. His advocate failed to take any step and his advocate
did not give proper response. Therefore, he appointed present advocate
to apply for certified copy of the judgment and decree on 16.9.2019,
which was received by them on 21.9.2019.
3. It is further contended by the defendant no.1 that, after
perusal of aforesaid exparte judgment and decree, he came to know
that, when suit was pending his advocate did not appear in the matter.
It is contended that, his advocate though assured to inform about the
progress of the matter, but he failed to perform his duties. He was
shocked and surprised when he has received the notice of Execution
Proceedings. Therefore, it is contended that, he was prevented from
appearing in the matter. Therefore, exparte judgment and order be
quashed and set aside.
4. It is further contended that, the suit property is an ancestral
property and the plaintiffs have no right, title and share in the same. It
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is alleged by the defendant no.1 that, the plaintiff no.1 got married to
his deceased brother but after the marriage she deserted him and left.
It is further contended that, his deceased brother executed a Will,
bequeathing the suit property in his favour. Thus, it is contended by the
defendant no.1 that, he has good case on merits as well as on law.
Therefore, the impugned judgment and decree needs to be quashed and
set aside and the suit be decided on merits.
5. The notice of motion is opposed by the plaintiff by filing
reply. It is contended by the plaintiff that, as per Order 9 Rule 13 of PC,
the defendant has to prove that summons were not duly served to him or
he was prevented by any sufficient cause to appear in the matter on the
date of hearing of the suit. It is contended by the plaintiff that the
defendant no.1 was duly served and he had appeared in the matter, but
failed to take appropriate steps and no sufficient reason has been
assigned to quash and set aside the judgment and decree. Thus, the
plaintiff prayed for rejection of the notice of motion.
6. Heard both sides. Perused notice of motion, reply and
rejoinder. On perusal of the notice of motion, it appears that, the
defendant no.1 not disputed that he has not been served with writ of
summons. On the contrary, he has taken a plea that his advocate,
though assured to inform him the stages of proceeding, failed to inform
him about the same. As per Order 9 Rule 13 of CPC, the defendant can
apply for setting aside the exparte decree if he satisfies the court that
suit summons was not duly served or that there was sufficient cause for
his failure to appear when the suit was called for hearing.
7. I have perused entire proceedings. It appears that, the
defendant no.1 was duly served on 3.2.2012. Inspite of that, he did not
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appear on 28.2.2013 and 7.3.2013. It appears from the Roznama that,
the defendant and his advocate Mr. J.B. Tripathi appeared on 14.3.2013
and the matter was referred to Mediation. Therefore, from time to time,
the matter was taken on board but the defendant failed to appear.
8. During pendency of the trial, the plaintiff filed Chamber
Summons No. 392/2014 for amendment. Service affidavit shows that,
defendant no.1 was duly served. The plaintiff also added the defendant
no.2. The plaintiff also served upon the defendant no.1. I find that, the
defendant failed to appear and contest the suit.
9. It appears from the Roznama that, on 13.4.2015, defendant
no.1 in person was present and requested for time to argue the chamber
summons. Time was granted. However, defendant no.1 failed to file
reply. Therefore, after considering arguments of the plaintiff and the
defendant no.1, my Ld. Predecessor partly allowed Chamber Summons
No. 392/14 and added defendant no.2 as party to the Suit. At that
time also, the defendant no.1 did not take appropriate steps to file
Written Statement on record.
10. Roznama also shows that, the defendant no.1 was present
in person on 19.11.2015. Roznama dated 22.1.2016, shows that, the
defendant no.1 was served with amended plaint. But he did not appear
and therefore, the suit was proceeded exparte. Roznama dated
22.6.2016 also shows that, the plaintiff supplied copy of evidence on
affidavit and list of documents to the defendant, but inspite of that none
appeared and therefore, on 16.11.2016, 'no cross' order was passed and
finally, on 16.12.2017, the impugned judgment and decree came to be
passed against the defendant no.1.
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11. It appears that, on 4.10.2019, Adv. Mr. Dubey for the
defendant no.1 tendered draft Motion for setting aside the decree.
12. It is the contention of the defendant that due to assurance
given by his advocate he could not appear in the matter and could not
take steps. But, I am unable to accept the aforesaid reason as 'sufficient
cause' preventing the defendant, who appeared in the suit during
hearing. Record shows that, the defendant no.1 was duly served with
suit summons with amended plaint and miscellaneous proceedings in
the suit. Inspite of that, he failed to appear and contest the suit. Hence,
I am of the view that, no 'sufficient reasons' have been assigned by the
defendant no.1 to quash and set aside the impugned judgment and
decree. Thus, I proceed to pass following order :
ORDER
1. Notice of Motion No.3946/2019 is dismissed, with costs.
2. Notice of Motion is disposed of accordingly.
Sd/
(A.H.Laddhad)
Judge,
Dated : 15.11.2021 City Civil and Sessions Court,
Dictated on : 15.11.2021 Greater Bombay (CR 03)
Typed on : 15.11.2021
Signed on : 16.11.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
16.11.21 at 6 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 15/11/2021
JUDGMENT/ORDER signed by P.O. on 16/11/2021
JUDGMENT/ORDER uploaded on 16.11.2021
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