Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Revision Application No.79/2023
Presented on : 25.09.2023.
Registered on : 25.09.2023.
Date of Decision : 07.12.2023.
Duration of disposal : Years Months Days
0 2 12
CNR No. MHSCA30008482023
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Revision Application No. 79/2023
In
Order Below Exhibit 22
In
R.A.E. Suit No. 42/2012
Kirti Kumar Chotalal Chavda
Age: 51 years
Occupation : service
Indian Inhabitants of Mumbai
Residing at Janki Niwas, Chawl No 2,
Room No 7, Wadhwan Village, Ram
Nagar, Subhash Modi Road, Kandivali
(East), Mumbai 400 101
Mobile No. 8369616367
Now residing at Gupta Chawl, Room
No.17, Wadhwan Village, Ram Nagar,
Subhash Modi Road, Kandivali (East),
Mumbai – 400 101
Applicant
(Org. Defendant
No. 2)
V/s.
1) Smt. Jankidevi Gopichand Mittal
Age & Occu : Not known
through Mr. Girendra G. Mittal son and C.A.
age 50 year, Occ : Business,
Indian Inhabitant of Mumbai
Residing at – 5b, Kini Bungalow, MMC Respondent (Org.
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Road, Mahim (West), Mumbai 400 016.
Mobile No. & Email ID – Not known.
plaintiff )
2) Smt. Kamlaben Chotelal Chauda
(deleted since deceased)
3) Mr. Amrutbhai Punjiram Nayee
Age : years,
Occupation : N.A.
An adult Indian Inhabitant, Residing at
Janki Niwas, Chawl no. 2, Room no. 7,
Wadhwan Village, Ram Nagar, Subhash
Modi Road, Kandivali (East), Mumbai –
400 101
Respondents
(Original
Defendant Nos. 1
& 3)
Learned advocate Shri Rajesh Devgharkar, for applicant.
Learned advocate Shri Hareshwar B. Worlikar, for respondent no. 1.
Coram : A.S. Khadse,
Addl. Chief Judge &
R.N. Bansal, Judge.
C.R. No. 31 (B.B.)
Date : 07.12.2023.
JUDGEMENT
(Per R.N. Bansal, Judge)
1) This revision petition is filed against the order dated
11.02.2021 rejecting the application (Exh.22) filed by defendant
no. 1 and 2 for setting aside ‘No written statement order ’passed
against them below Exh. 1 in R.A.E. Suit No. 42/2012
2) The applicant is the original defendant no. 2 and the
respondent is the original plaintiff in said suit (hereinafter, in the
present matter, both the parties are referred as per their said
nomenclature in the original suit).
Brief facts of the case are as under :
3) The learned trial court had passed order below Exh.14
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for the application for delay in filing written statement on
20.10.2012 and whereas allowed defendant no.2 to file his written
statement subject to cost of 500/. However, he was busy in	₹
taking care of his ailing mother for the period from the years 2012
to 2018 therefore, he could not contact his advocate to give
instructions and so his advocate was not attending the matter. It is
further submitted that, in the month of April 2018 his neighbour
reminded him about the matter. Therefore, he immediately
contacted his advocate for knowing about the said suit and at that
time he came to know that due to his default in depositing the cost
amount of 500/ as per order below Exh.14, the court has passed	₹
another order below Exh.1 on 19.10.2013 and directed to proceed
the suit without written statement of defendant Nos. 1 and 2. The
defendant No. 2 was ready to pay the said costs as the delay
caused was not deliberate and prayed to set aside the said order.
4) The plaintiff has opposed the said application Exh. 22
by filing reply at Exh. 26 stating that the said defendant has
neither disclosed the nature of ailment of his mother nor furnished
medical documents showing her ailment since 2012 to 2018. He
has also submitted that, order below Exh. 14 dated 20.10.2012
was conditional order and if the defendant fail to comply the order
then application Exh.14 stands rejected. Hence, she prayed for the
dismissal of the application Exh 22.
5) After considering the said application Exh. 22, reply at
Exh. 26 and record the learned trial court has rejected the said
application as per impugned order. Against it, the defendant no. 2
has preferred this revision application on the ground that the
learned trial court has wrongly and erroneously passed the
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impugned order without considering the material facts and law by
raising several grounds in this petition. Therefore, he has prayed
for setting aside the impugned order by allowing the revision
petition.
6) Perused application and reply on it. Heard advocates
for both the parties at length. Perused the written notes of
arguments filed by the advocate for respondent.
7) After considering the submissions of both the parties
and their advocates following points arise for our determination.
We have recorded our findings against each of them for the
reasons stated in the following paras :
Sr.
No.
POINTS FINDINGS
1) Does the impugned order is illegal
and is erroneous ?
No.
2) Does the interference of this court
is warranted in setting aside the
impugned order ?
No.
3) What Order ? As per final order.
R E A S O N S
8) The learned counsel appearing for both sides have
argued the matter in consonance with their submissions. Hence, to
avoid repetition, same are not reproduced here once again.
As to Point no. 1 :
9) Admittedly, the plaintiff has filed said suit for eviction
of defendants on the grounds more particularly mentioned in the
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plaint. It appears from the record of the said suit that, after service
of summons the defendants have failed to file his written
statement since long. Thereafter, the defendant no. 1 and 2 have
filed application below Exh. 14 for condonation of delay in filing
the written statement. The said application was allowed by learned
trial court subject to costs of Rs. 500/. The defendant no. 1 and 2
failed to comply the said order and therefore, the learned trial
court has passed ‘no written statement’ order against them on
19.10.2013 below Exh. 1. Thereafter, after a gap of near about 5
years on 25.06.2018 the defendant no. 2 has filed the application
below Exh.22 for setting aside the ‘no written statement’ order
dated 19.10.2013 against them. The said application was rejected
on merit by the learned trial court by passing impugned order on
merit
10) In present revision application the defendant no. 2 has
filed on record the xerox copies of medical reports, prescriptions,
etc. of his deceased mother i.e. defendant no.1 to establish that
due to ill health of his mother he remained absent from the court
proceeding in said suit since 2012 till 2017. On perusal of said
documents it appears that there is some medical ailment to his
mother i.e. defendant no. 1 since 2012.
11) The reason state forth by the defendant is only the
illness of his mother. Though there is some medical issues to his
mother but it appears that it was due to her old age. The reason
stated by the defendant seems to be very casual in nature as
nobody can attend an ill mother for 24 hours, as some necessary
work needs to be done in time with making alternative
arrangements for taking care of her. Be that as it may, it appears
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that the reason stated by the defendant no. 2 though not seems to
be an only reason but it can be the one reason for causing delay
and nonappearance of defendant no. 2 in said suit for a long
period.
12) On perusal of record of said suit it appears that the
said suit was pending for the hearing on documents of the plaintiff
as it was proceeded exparte against all the defendants. It means
that the matter is not proceeded much further till date. Therefore,
considering the facts and circumstances before us, in our view if
opportunity to file the written statement was granted to the
defendant no.2 it would be more justifiable as the matter will be
concluded on merit. If the application is allowed, no grave
prejudice or harm would be caused to the plaintiff, on the other
hand, if the matter was decided unheard against the defendant no.
2 it would cause great prejudice to his rights. So also, to avoid the
multiplication of proceeding and to avoid the further delay in our
view it is must to allow the present application by taking liberal
view as contemplated by Hon’ble Apex court in many of the
authorities.
13) It is the contention of plaintiff that the story put forth
by the defendant no.2 is incorrect and false and therefore, by
suppressing the material facts the defendant no. 2 is playing fraud
with the litigation and as well as with the court and therefore, he
cannot be entitled for any relief. In support of his submission, the
learned advocate for the plaintiff has placed reliance on the case
law S.P. Chengalvaraya Naidu (dead) by L.Rs. V/s. Jagannath
(dead) by L.Rs. and others (AIR 1994 Supreme Court 853). On
perusal of it, it appears that the ratio laid down by Hon’ble
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Supreme Court that by suppression of material fact and by
withholding a vital document relating to litigation, the litigant is
playing fraud with the court. In case inhand we cannot hold that
the defendant no. 2 has played fraud with the court by suppressing
material fact and withholding the document as it appears from the
record that the fact and circumstances in present case is different
from the fact and circumstances in citation. Therefore, It is
respectfully submitted that the ratio led down in authority is not
applicable to the present revision petition.
14) It is the contention of plaintiff that the defendant no. 2
is always knowing about the proceedings of the said suit, the
plaintiff himself sent whatsapp messages to him about the dates of
the suit. So also, the advocate of defendant no. 2 was present in
court in suit on maximum dates. Therefore, the contention of
defendant no. 2 is false. In support of his submission the defendant
has filed on record the copies of roznama and the details of
whatsapp chat. Though we consider that the defendant no. 2 was
knowing the dates of the suit, but considering the reason stated by
the defendant no. 2 of illness of his mother, we cannot reject the
application only on that ground. But as discussed above, it appears
that the grounds stated by the defendant no. 2 is very casual in
nature and thereby he caused the delay to the proceeding. It is
necessary to settle a reasonable cause payable to the plaintiff to
compensate the inconvenience and delay caused to the respondent.
Accordingly, I answer to point no. 1 in affirmative.
As to Point no. 2 :
15) After considering the aforesaid discussion, we have
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reached to the conclusion that the findings of the learned Trial
Court needs interference at the hands of this court. As a result
thereof, the interference of this court is required in setting aside
the erroneous and answer point no.2 in the affirmative.
ORDER
1) Revision application is allowed subject to costs
of Rs. 25,000/ to be paid to the respondent
no. 1 or to be deposited in the court within 15
days of this order.
2) The order passed below Exh. 22 dated
11.02.2021 is hereby set aside.
3) The written statement of defendant no. 2 /
appellant be taken on record after the
compliance of cost order.
4) Inform the trial court accordingly.
5) Record and proceeding be sent to trial court.
I Agree,
Sd/ Sd/
(A.S. Khadse) (R.N. Bansal)
Addl. Chief Judge Judge,
C.R. No. 31 C.R. No. 31
07.12.2023 07.12.2023
Order dictated on : 07.12.2023.
Order typed on : 08.12.2023.
Order checked & signed on : 11.12.2023.
/home/jccourt31/Desktop/CR 31Bansalsgz/Judgments/2. REVISION/7923Rev(set aside orderExh22RAE4212set aside no WSalowedcostsRs25,000)7.12.23.odt
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