Order 4

Order Details: Order on Exhibit
Pdf Text: MHSCA30010892021
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
(APPELLATE BENCH)
EXHIBIT NO.9
IN
M APPEAL NO.164 OF 2021
IN
EXHIBIT 9 OF 2021
IN
R.A.D SUIT NO.266 OF 2021
Ms. Jayashree Jayal Soochak Appellant
(Original Plaintiff)
Versus
Mangal Buildhome Private Ltd. Respondent
(Original Defendants)
M/s. Rajesh S. Sharma & Associates, .. Advocate for Respondent.
Mr. Janardan P. Kotian ..Advocate for Appellant.
Coram : Vilas. P. Kadam, Additional Chief Judge
&
A. H. Baig, Judge
Court Room No.41,
Date : 04.08.2022
ORDER :- (Per Vilas. P. Kadam, Additional Chief Judge)
1. The present application came to be filed by the sole
respondent for setting aside exparte order passed by this court on
08.03.2022. Contentions of application is supported by way of
affidavit.
2. The learned counsel for the appellant has submitted say
below same application and taken objection that since date of service
i.e. 05.12.2021, the respondent was not appeared before the court and
the present application came to be filed on 04.08.2022 for setting aside
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exparte order dtd.08.03.2022. Thus submitted that application be
rejected.
3. In view of above context, heard both sides.
4. We have gone through the record which shows that as per
bailiff report, the summons notice served on 05.12.2021 on the
respondent. It is the contention of the advocate for respondent that he
has instructed another advocate to appear in the appeal and for some
dates he has giving day to day update but after sometime he has
stopped to give updates of the case and therefore present advocate
appeared and filed V.P on record. Thus, submitted that the reason was
genuine as the respondent was under impression that his counsel is
attending the case but it was false information given by the advocate of
the respondent. Thus, prayed for allowing application.
5. The learned counsel for the respondent submits that the
exparte order came to be passed on 08.03.2022. Even though on
previous date/last date the application was filed but it was not correct
one and that is why the application was not pressed and present
application came to be filed which is not in limitation in view of Article
164 of Limitation Act as same is not filed within 30 days.
6. Even though such type of limitation question is arise and
raised by advocate for appellant, definitely for deciding the entire
matter on merit needs to consider the reason submitted by the advocate
for respondent as his previous advocate has given dates correctly but
didn't appear and therefore does not fault at the hands of respondent.
7. Even though such counter submissions are made by the
parties advocate then also just for deciding the matter on merit needs
to give fair chance to the respondent and hence exparte order dtd.
08.03.2022 required to be set aside. Therefore, we have come to the
conclusion that for just decision of the appeal needs to set aside the
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exparte order dtd. 08.03.2022. Thus, we proceed to pass following
order.
: O R D E R :
1. Application is partly allowed.
2. Expart order dtd.08.03.2022 against respondent is
hereby set aside and the presence of respondent is
taken on record.
3. The production for filing reply on the said appeal is
hereby rejected.
I agree,
(A. H. Baig) (Vilas. P. Kadam)
Judge Additional Chief Judge
Court Room No.41 Court Room No.41
Order dictated on : 04.08.2022
Order transcribed on : 04.08.2022
Order checked on : 04.08.2022
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