Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 4196-19 in SU No.4297-2010 1
MHCC010115002019
Presented on : 13-11-2019
Registered on : 13-11-2019
Decided on : 11-08-2023
Duration : 3 Y : 8 M : 28 D
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.4196 OF 2019
IN
SUIT NO.4297 of 2010.
M/s. Shirke Civil Contractor. .....Plaintiff.
V/s.
Anubandha CHS Ltd. …...Defendant.
Appearances :-
Adv. Pawan Tiwari for plaintiff.
Adv. Shirodkar for defendant.
Coram : His Honour Judge
Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 11/08/2023
ORAL ORDER
1. This Notice of Motion is moved by the defendant under Order
IX, Rule 13 of the Code of Civil Procedure (In short 'Code').
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2. It is the contention of the defendant that, the suit was
transferred to this Court from Hon’ble High Court and it was kept for
evidence of the plaintiff. The defendant has filed written statement on
record. Advocate for the defenant did not attend the matter as there was
no instrutions given by the defendant to him. The defendant specifically
contends that the defendant attended the matter lastly on 31.03.2018 and
thereafter the suit was adjourned on 19.06.2018. On 03.04.2018, his
advocate informed that he had been to Kerala and will return after one
month. Thereafter due to absence of the defendant, the suit was decreed
ex-parte on 22.04.2019. Hence, this Notice of Motion.
3. It is the contention of the plaintiff in reply that the contents of
whole Notice of Motion are false, vaxious and not maintainable in the eyes
of law. The defendant moved this Notice of Motion after period of
limitation prescribed therefor. The defendant was well aware about the
status of the matter pending before the Court.This Notice of Motion is
moved to delay the plaintiff in getting the fruits of the decree. Hence,
prayed to reject the Notice of Motion.
4. Ld. Advocate for the defendant argued that this Notice of
Motion is filed under Order IX, Rule 13 of the Code. It is his specific
submission that though written statement of the defendant is on record,
the defendant failed to appear. Hence, impugned decree is an ex-parte
decree. Therefore, the Notice of Motion purely falls within the purview of
Order IX, Rule 13 of the Code.
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5. It is further submission of Ld. Advocate for the defendant that
no notice was issued by the plaintiff before impugned decree is passed.
Therefore, in view of the observations of Hon'ble Supreme Court in G. P.
Srivastava vs. R. K. Raizada and Ors. (2000) 3 Supreme Court Cases 54
and observations of Hon'ble Supreme Court in Malkiat Singh An Anr. vs.
Joginder Singh and Ors. In (1998) 2 SCC 206, this Notice of Motion is
liable to be allowed.
6. Per contra, it is submission of the Ld. Advocate for the
defendant that once there is written statement on record, the suit can not
be termed as ex-parte. He also argued that the plaintiff has served
additional affidavit of evidence in the year 2017. On this ground also, the
defendant has no reason to invoke the provisions of Order IX, Rule 13 of
the Code. If, the defendant has any grievance of the decree, he ought to
have prefer appeal before the Hon'ble Supreme Court. Hence, prayed to
reject the Notice of Motion.
7. In G. P. Srivastava (Supra), the Hon'ble Supreme Court has
observed that while setting aside the ex-parte decree, the Court has to see
the sufficient cause which prevents the defendant from appearing before
the Court. The cause of sickness may be a good ground to allow provisions
of Order IX, Rule 13 to help the defendant. The Hon'ble Supreme Court
has observed in Malkiat (Supra) that when the counsel of the defendant
filed no instructions pursis on reccord, then it was essential to issue the
notice to the defendant. Therefore, set aside the ex-parte decree.
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8. It is admitted fact that the defendant has filed written
statement on record and failed to appear on subsequent date of hearing, in
such case, it is necessary to see in the light of dictum of observations of
Hon'ble Supreme Court in aforesaid cases whether the Notice of Motion is
maintainable and liable to be allowed.
9. At the cost of repetition, it is necessary to note that there is no
dispute that the defendant has filed written statement. It is also not a case
of the defendant that his earlier advocate had filed no instructions pursis
on record. Hence, he was unaware of the process of the Court. In Malkiat
(Supra), the advocate for the defendant had filed no instructions pursis. It
was not case of either party that whether the then advocate had informed
the defendant as to such pursis. Such case is not here. Hence, the rule laid
down in Malkiat (Supra) would not be applicable to the case of the
defendant.
10. In G. P. Srivastava (Supra), the Hon'ble Supreme Court held
that there shall be sufficient cause for non-appearance inspite of service of
summons of the suit. The Hon'ble Supreme Court further held that mere
fact that the medical certificate was obtained from a private practitioner
may not be a ground to say that defendant was not suffering from any
illness. Consequently, set aside the ex-parte decree. The defendant does not
state that he was prevented from appearing in the Court because of illness.
It is his specific case that he was absent as his advocate was not present in
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the Court. In such case, reference to Order IX, Rule 13 of the Code,
becomes essential.
11. Order IX, Rule 13 of the Code runs as under :
13. Setting aside decree
ex-parte against defendant. -
In any case in which a decree is passed ex-pate
against a defendant, he may apply to the Court by
which the decree was passed for an order to set it
aside; and if he satisfies the Court that the summons
was not duly served, or that the was prevented by any
sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order
setting aside the 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.
12. On perusal of provisions of Rule 13, Order IX of the Code, it
deals to the specific provisions to set aside the ex-parte decree against the
defendant. The defendant against whom decree has passed ex-parte, may
apply to the Court and he has to satisfy the Court that summons was not
duly served or that he was prevented by any sufficient cause from
appearing when the suit was called for hearing. Clause (a) of Sub-rule 1 of
Rule 6 of Order IX of the Code deals with the procedure to be followed
when only plaintiff appears. Clause (a) of sub-rule 1 of Rule 6, Order IX,
provides that when it is proved that summons was duly served, the court
may order that the suit be heard ex-parte. It is not the case of the
defendant that he is not served with the summons. Rather, it is admitted
fact that the defendant appeared and filed written statement on record. On
conjoint reading of provisions of Rule 6 and Rule 13 of Order IX of the
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Code, it is abundantly clear that the defendant has to show that after
summons is served, he failed to appear for sufficient cause.
13. At the cost of repetition, it is necessary to note that it is not
the case of the defendant that he failed to appear after summons are
served. Hence, the provisions of Order IX, Rule 13 are not applicable to the
case of the defendant. Therefore, Notice of Motion is not maintainable in
the eyes of law. In the result, following order is passed :
ORDER
1. Notice of Motion No.4196 of 2019 in SU No.4297/2010 is
hereby rejected.
2. Notice of Motion No.4196 of 2019 in SU No.4297/2010 is
disposed of accordingly.
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:11.08.2023 Greater Bombay (CR 59)
Declared on : 11.08.2023
Dictated on : 11.08.2023
Transcribed on : 11.08.2023
Checked on : 14.08.2023
Signed on : 17.08.2023
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“Certified to be true and correct copy of the original signed order”.
17/08/2023 (Ms. Manisha Hirole)
Stenographer (H.G.)
Reliever.
Name of the Hon'ble Judge : Shri U. C. Deshmukh
(Court Room No.59)
Date of pronouncement of Judgment/Order : 10/08/2023
Judgment/Order signed by Hon'ble Judge on : 17/08/2023
Judgment/Order uploaded on : 17/08/2023
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