Order 1

Order Details: Order on Exhibit
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(CNR No.MHSCA3-000084-2024)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.12
IN
L. E. SUIT NO. 7 OF 2024
1. Mr. Vivek Dhirubhai Naik
and another … Plaintiffs
Versus
Ms. Ulka Nair … Defendant
Smt. Ketki Belapurkar for K.R.Parekh & Co., Ld. Advocate for the
plaintiffs.
Smt. Reema Sahani for M/s. Lex Conseiller, Ld. Advocate for the
defendant.
Coram : Smt. J. D. Hushangabade
Judge, C.R. No.34.
Date : 25.03.2026.
ORAL ORDER:
1. This is an application filed by the defendant for setting
aside ex-parte order dated 24.04.2025 and for condonation of delay
in taking out the present application. The defendant further prayed
that the plaintiff be directed to serve papers of the present suit upon
the defendant.
2. It is specially averred in the application that from the
records available on e-courts, it appears that Mr. Vivek Dhirubhai
Naik and Khasmira Vivek Naik have filed present suit against her.
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The defendant has filed an eviction proceeding against Patil & Family
in the Small Causes Court at Bandra being RAE Suit No.377 of 2016,
which is pending in Court Room No.33. The next date in the matter
is on 25.06.2025.
3. The defendant further contended that as the Courts
across city were to resume its working from 09.06.2025, on
06.06.2025, she was checking for the update and next date of the
present matter, wherein she came across the details of the present
case, which took her by surprise. No notice is issued or served upon
her for the present suit. She informed her Advocate of the same and
her Advocate upon perusing the details of the present suit online,
informed her that an eviction proceeding is filed against her and the
matter is set for exparte hearing in her absence. It appears that the
notice was not served upon her on account of incomplete address and
later under what mode service is shown complete. She came to know
about the present suit on 06.06.2025 and she is filing the present
application in a very short pan of time 4-5 days. Hence, there is no
delay in filing of present application. Even otherwise, the exparte
order was passed on 24.04.2025. There was Court vacation from
10.05.2025 to 08.06.2025. While computing the period of limitation
from the date of passing of exparte order dated 24.04.2025, the
present application is within time. Hence, the defendant prayed for
setting aside ex-parte order dated 24.04.2025 and for condonation of
delay in taking out the present application as well as for giving
directions to the plaintiff to serve papers of the present suit upon the
defendant.
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4. On the the other hand, Ld. Advocate for the plaintiffs
objected the present application by giving handwritten say on
overleaf of the application and submitted that as per the bailiff report
dated 24.09.2024 the defendant has been duly served with the suit
summons with the plaint. Hence, the averments of the defendant
about not receiving the summons and plaint papers are completely
false and baseless. The Hon’ble Court has rightly passed the exparte
order against the defendant. No sufficient reason whatsoever is given
for setting aside the exparte order and in fact false averments are
stated by the defendant. Hence, prayed that application be dismissed
with heavy costs.
5. Perused application and say thereon. Heard both sides.
The defendant prayed to set aside exparte order passed by the court.
It is case of the defendant that the suit summons has not been served
to her. However, on perusal of bailiff report dated 24.09.2024 it
appears that the suit summons has been duly served on the defendant
on new address. The defendant had not appeared before the Court in
spite of service of suit summons. Therefore, on 24.04.2025 exparte
order was passed against the defendant. The defendant has filed
present application on 10.10.2025. Considering there was Court
Vacation from 10.05.2025 to 08.06.2025, it appears that the present
application for setting aside exparte order has been filed within one
month from the date of passing exparte order. Therefore, considering
the fact that the defendant is ready to contest the suit and
considering the right of the parties of fair opportunity, in my view it
is necessary to give the opportunity to other side, it will help to
decide the suit on merits. Therefore, it would be just and proper for
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fair trial to set aside exparte order. The delay in the proceeding can
be compensated by imposing costs. As I already held that the suit
summons have been duly served to the defendant, therefore, it is not
necessary to direct the plaintiffs to again supply the copies of papers
of the present suit to the defendant. The defendant has other remedy
to get copy of the plaint. Hence, I proceed to pass following order:-
: O R D E R :
1. The application at Exhibit No.12 is
partly allowed, subject to costs of
Rs.500/- to be paid by the defendant to
the plaintiffs on or before next date.
2. Exparte order dated 24.04.2025 passed
against defendant is hereby set aside.
3. The prayer of the defendant to serve
papers of the present suit upon her, is
hereby rejected.
4. Costs is condition precedent.
Place : Mumbai ( J. D. Hushangabade )
Date : 25.03.2026. Judge, C.R. No.34 (BB).
Order dictated & Typed on : 25.03.2026.
Order checked & signed on : 25.03.2026.
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