D.b.lonkar For R.no.1to4(caveat And Vp)

Order - Status 6: FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.5828 OF 2009 Office Notes, Office memorandum of Coram, appearances, Court s Court s or orders or directions & Judge s orders. Registrar s orders. Mr.Sanjeev Sawant i/by Mr.M.V.Kode for the petitioners. CORAM : A.S.OKA, J. DATE : 20th July 2009. P.C.: . Not on board. Taken on board. To be placed for admission on 27th July 2009. Considering the controversy involved, parties are put to notice that petition will be decided finally at the stage of admission. Till the next date, decree for possession shall not be executed. (A.S.OKA,J)

Order - Status 9: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION N0.5828 OF 2009 Smt.Geeta S. Joshi & Another ..Petitioners versus Shri Kantilal N. Baldota & Others ..Respondents Mr.Sanjiv Sawant i/b.H.V.Kode for the petitioner Mr.D.B.Lonkar for the respondent Nos.1 to 4 CORAM : A.S.OKA, J. DATE : 30th JULY, 2009. P.C: By order dated 20.7.2009 this Court directed that the writ petition shall be decided finally at the stage of admission. Accordingly, I have heard learned counsel appearing for the petitioners and 1 st to 4th respondents. It will be necessary to refer to the facts of the case in brief. The 1st to 4th respondents filed a Civil Suit against the petitioners. A decree was passed in the said suit filed by the 1st to 4th respondents. The decree was passed on 20.1.2006. According to the case of the petitioners they became aware of the decree when on 23.7.2006 they were served with the notice of execution proceedings filed by the 1st to 4th respondent for executing the decree. The case of the petitioners is that they made an application before the Court of Small Causes for setting aside the ex-parte decree. It is their case that delay in filing the said application was condoned. On 27.6.2008 the application for setting aside ex-parte decree was dismissed for default. According to the petitioners they became aware of the said order of dismissal when on 15.7.2008 the bailiff visited their premises. Therefore, on 1.8.2008 the petitioners applied for restoration of the said application for setting aside the exparte decree. By order dated 7.4.2009, the said application for restoration was dismissed by the Court of Small Causes. Being aggrieved by the said Order, the petitioners preferred an appeal before the District Court. By impugned Judgement and Order dated 24.6.2009 passed by the learned District Judge, Pune the appeal preferred by the petitioners has been dismissed. The submission of the learned Counsel appearing for the petitioners is that a very hyper technical view has been taken by the District Court. He invited my attention to the findings recorded by the District Court in the impugned Order. He submitted that the delay in filing application for setting aside ex-parte decree was already condoned by the trial court and therefore the application for setting aside the ex-parte decree ought to have been directed to be heard on merits. The learned Counsel appearing for the 1st to 4th respondent opposed the petition by pointing out the conduct of the petitioners. His submission is that the petitioners have been totally negligent in prosecuting the proceedings. He submitted that the decree has been passed in January 2006 and by filing various proceedings, the petitioners have protracted the execution. He has relied upon the reply filed by the respondents in which it is pointed out that the petitioners were served with the summons of the suit, but they did not appear. He pointed out that there was absolutely no reason for the petitioners not to contest the suit on merits. He submitted that considering the gross delay and negligence on the part of the petitioners, no interference is called for. I have given careful consideration to the submissions made by the learned Counsel appearing for the parties. As stated earlier the decree was passed on 20.1.2006. An application for setting aside ex-parte decree was filed on 19.9.2006. There was a delay in filing the said application. It appears that after the condonation of delay, the application for setting aside exparte decree was registered. The said application came to be dismissed on 27.6.2008. An application was made on 1.8.2008 praying for restoration of the said application for setting aside the ex- parte decree. By Order dated 7.4.2009, the said application for restoration was dismissed, which was challenged by filing an appeal before the District Court which has been dismissed by the impugned Order. The conduct of the petitioners during the pendency of the suit and the effect of their failure to appear before the court will have to be considered in the application for setting aside ex-parte decree filed by the petitioners. Unless a case is made out for setting aside the ex-parte decree it is obvious that the Court will not set aside the ex-parte decree. The only question in this petition is whether the said application deserves to be restored. As stated earlier, the delay in filing the application for setting aside ex-parte decree was condoned. It is true that the said application was dismissed due to the default on the part of the petitioners. An occasion for filing an application for restoration arises when normally there is some default on the part of a litigant. The application for restoration was filed on 1.8.2008 and the application for setting aside ex-parte decree was dismissed on 27.6.2008. It is true that due to all this, the respondents Nos.1 to 4 plaintiffs have suffered prejudice. The District Court could have allowed the appeal by restoring the application for setting aside the ex-parte decree by directing the petitioners to pay heavy costs to 1 st to 4th respondents. The learned Counsel appearing for the petitioners expressed willingness to pay costs of Rs.20,000/- to 1st to 4 th respondents. Accordingly, a demand draft in the sum of Rs.20,000/- drawn in favour of the 4th respondent has been handed over to the advocate for the 1st to 4th respondents in this Court. As the petitioners have compensated 1st to 4th respondents, in the facts of the case, in my view, an opportunity deserves to be granted to the petitioners to prosecute their application for setting aside ex-parte decree. The contentions which are raised by the 1st to 4th respondents in this petition as regards the conduct of the petitioners will have to be examined when the trial court deals with the application for setting aside ex-parte decree. While setting aside the order in appeal it must be clarified that notwithstanding the fact that the delay in filing the application for setting aside ex-parte decree has been condoned, the application for setting aside the exparte decree will have to be heard on its own merits and the same cannot be decided in favour of the petitioners only because the delay has been condoned. Though this court is restoring the application for setting aside the ex-parte decree, it is made clear that the petitioners will not be entitled to seek any adjournment on any unreasonable ground and the petitioners will have to co-operate with the Court of Small Causes for expeditious hearing of the said application. Hence, I pass the following order. ORDER i. The impugned judgment and order dated 24.6.2009 passed in Misc. Civil Appeal No.148 of 2009 is quashed and set aside. The said appeal is allowed by setting aside the Order dated 7.4.2009 passed by the Court of Small Causes, subject to payment of costs of Rs.20,000/- by the petitioners. The amount of costs has been already paid by the petitioners to the 1st to 4th respondents. ii. Misc. Application No.78 of 2007 is restored to the file of the Court of Small Causes. iii. The parties are directed to appear before the trial Court on 17.8.2009 at 11.00 a.m. It is made clear that no further notice of the date fixed of the said application shall be served to the petitioners. iv. The trial Court will decide the said application for setting aside ex-parte decree as expeditiously as possible and in any event on or before 31.10.2009. v. It is made clear that the petitioners will not be entitled to seek an adjournment on any unreasonable ground and they will co-operate with the learned trial Judge for early disposal of the said application. vi. It is made clear that all contentions of the parties in the application for setting aside exparte decree are expressedly kept open. Vii. Petition is partly allowed with the abovesaid orders. Viii. Learned Counsel appearing for the 1st to 4 th respondents, upon instructions, states that the said respondents will not execute the decree till the application for setting aside exparte decree is decided by the Trial Court. (A.S.Oka, J.)