Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.42642019 ORDER 1
MHCC010116762019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4264 OF 2019
IN
SUMMARY SUIT NO.1109 OF 2018
Mrs. Kiran Sandeep Mandavkar … Plaintiff
Vs.
Mr. Firoz Sarvar Khan … Defendant
Appearances:
Adv. Mr.S.R.Yadav for plaintiff.
Ld.Adv. Agarwal for Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 23rd December 2021
ORDER
1. This Notice of Motion is filed by defendant with a request to set
aside the order dated 11/9/2019. The defendant further requested to set
aside the execution of the order. As per statement of defendant that, on
8/11/2018 the summons was served upon him. Accordingly, he was
appeared through advocate on record on 19/11/2018. Thereafter, time
to time the suit was adjourned on 1/12/2018, 15/12/2018, 11/3/2019,
4/4/2019, 1/8/2019 and lastly on 11/9/2019. On 11/9/2019 Court had
passed judgment in suit. After appearance of defendant, the plaintiff has
tendered Summons for Judgment. Meanwhile, the suit was kept for
reply of Summons for Judgment. Advocate who was appeared on record
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NM No.42642019 ORDER 2
was busy in another Court on 11/9/2019. Therefore, on that day the
defendant could not file reply. However, some time inadvertently court
has not taken presence of junior advocate of defendant. The Junior
advocate has requested time for filing reply to Summons for Judgment
but his presence is not recorded. Accordingly by treating 'no reply' to the
summons for judgment. Lastly on 11/9/2019 court has delivered
judgment in Summons for Judgment. It is one more ground of the
defendant that there was communication gap between defendant and
advocate. Therefore, the defendant could not take steps on record. The
defendant had suffered viral and the doctor advised him rest therefore
the defendant could not take steps. With these grounds defendant
requested to set aside exparte judgment and allow him to defend the
suit. The defendant has taken objection to the documents filed by
plaintiff on record and submitted that he has good case on merit. With
these grounds this Notice of Motion is filed.
2. The plaintiff strongly opposed Notice of Motion on the ground
that this Notice of Motion is just to harass the plaintiff and delay the
proceedings. The defendant wants to kill time of the court. The
defendant would have filed appeal before Hon'ble High Court, instead of
this Notice of Motion, with these grounds the notice of motion is
strongly opposed.
3. Heard learned advocate of plaintiff and defendant. Defendant
only interested to stay the execution. Even in the argument it is
submitted to stay the execution. Here defendant had shown grounds
that his advocate was busy in another Court. Therefore, on the date of
Judgment that is 11/9/2019 the defendant could not take steps. It is
settled principle that advocate busy in another Court is not a ground to
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NM No.42642019 ORDER 3
set aside the decree or to adjourn the hearing. On the contrary, on
perusal of roznama, it appears that from beginning the defendant was
knowing about filing of suit by plaintiff. On 19/11/2018 the defendant
has tendered his appearance. Thereafter, from time to time presence
from the side of defendant is recorded. Meanwhile, the plaintiff has
tendered summons for Judgment thereafter the suit was kept for reply of
summons for Judgment. The suit was kept for reply on 1/12/2018 till
1/8/2019, near about for one year the suit was kept for reply of
summons for Judgment. But defendant could not file reply. Therefore,
believing on documents filed by plaintiff the Court has delivered
summary judgment on 11/9/2019. It is already held in earlier para that
advocate busy in another court is not a ground to set aside exparte
decree. There is one more ground from the side of defendant that during
that period the defendant was suffering from viral. The reason of illness
can be called as genuine reason but the defendant has not produced
single document on record to show that during the said period he was
suffering from viral and doctor has advised him bedrest. The defendant
has shown one more ground that there was communication gap between
advocate and parties. However, some time the Court has not recorded
presence of Junior advocate and he has requested time for reply to
summons for Judgment. For the sake of moment it is, presumed that
inadvertently court would not have recorded presence of junior advocate
but already from 1/12/2018 to 1/8/2019 there was sufficient time for
defendant to file reply. Therefore, ground shown by defendant that
there was communication gap between him and advocate and court has
not recorded presence of junior advocate are not acceptable grounds to
condone such a long delay. The record is contrary to the submission of
defendant. There was near about one year time with the defendant to
file reply to the summons for judgment. But he failed to file reply.
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NM No.42642019 ORDER 4
Therefore, believing documents on record the Court has delivered
judgment on 11/9/2019.
4. Advocate of plaintiff strongly opposed Notice of Motion on the
ground that this Notice of Motion is filed just to delay the execution and
to harass the plaintiff. In support he placed reliance on the ratio of
Hon'ble Bombay High Court in Madhusudan Shrikrishna Vs. Emkay
Exports; Kanchan S.Choudhary, Subhash K.Choudhary 2008 Dg
Law(Bom)1420 and Purnendu Shekharmal Jain Vs. M/s.ACG
Associated Capsules P.Ltd. 2017 DgLaw (Bom) 41. In both the
citations the Hon'ble High Court refused to restore exparte decree on the
ground that there is difference between Order IX Rule 13 and Order
XXXVII Rule 4. As per observations of the Hon'ble High Court the
exparte summary decree needs to be set aside under Order XXXVII Rule
4 in special circumstances. Special circumstances can be gathered from
facts of each case because special circumstances are not defined in the
Code of Civil Procedure.
5. It is true that special circumstances are not defined but the
circumstances shown by parties must be to the extent that during that
time parties could not appear and it was not in the hands of parties to
appear on record. It means the situation was beyond the control of
parties. Here whatever reasons shown by defendants are not satisfactory
to set aside the exparte decree. The plaintiff further relied on the ratio of
Hon'ble Supreme Court in Rajni Kumar Vs.Suresh Kumar Malhotra
2003DgLaw 175. In that citation also the Hon'ble Supreme Court has
considered special circumstances as provided in Order XXXVII Rule 4 of
the Code of Civil Procedure and refused to restore exparte judgment.
The Hon'ble Apex Court clearly shows that only in special circumstances
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NM No.42642019 ORDER 5
the suit can be restored under Order XXXVII Rule 4 because Order IX R
13 is not applicable to the summary decree and therefore, it is boundant
to consider special circumstances. Here in the case in hand no special
circumstances are made out by the defendant. On the contrary from the
reasons shown by defendant it appears that he wants to prolong the
execution of decree. Therefore, Notice of Motion is dismissed.
Accordingly, following order is passed:
ORDER
1. Notice of Motion No.4264 of 2019 stands dismissed.
2. Notice of Motion No.4264 of 2019 stands disposed
of accordingly.
(C.V. PATIL)
Adhoc Judge,
Date : 23/12/2021 City Civil Court, Gr. Bombay
Dictated on : 23/12/2021
Transcribed on : 23/12/2021
HHJ signed on : 23/12/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
23/12/2021 5.00p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
23/12/2021
JUDGEMENT /ORDER signed by P.O. on 23/12/2021
JUDGEMENT /ORDER uploaded on 23/12/2021
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