Shri. Manohar Ratimal Bagadia v. Shri. Chetansing Chimansing Chouhan

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION WRIT PETITION STAMP NO. 21171 OF 2014 Shri Manohar Ratimal Bagadia ...

Petitioner Vs.

Shri Chetansing Chimansing Chouhan ...

Respondent Mr.Uday B.Nighot, Advocate for Petitioner.

CORAM :

R. G. KETKAR, J.

DATE : 10th JUNE, 2015 P.C. :

.

Mr.Uday B.Nighot, learned Counsel for Petitioner at length.

2.

By this petition under Article 227 of the Constitution of India, original plaintiff has challenged the judgment and order dated 13/06/2014 passed by the learned Civil Judge, Junior Division, Vadgaon Maval below Exhibit 21 in Regular Civil Suit No. 31 of 2011. By that order, the learned trial Judge allowed the application filed by respondent-defendant for setting aside the exparte order passed against him on 17/07/2011.

3.

In support of this petition Mr.Nighot strenuously contended that the petitioner has instituted suit in the year 2011. No W.S.order was passed against the respondent on 17/07/2011. The application at Exhibit 21 is filed on 13/03/2014. He submitted that 1/3

perusal of the application Exhibit 21 shows that no reasonable ground is set aside by respondent-defendant for setting aside exparte order. He invited my attention to the impugned order and in particular, paragraph 3 thereof. He submitted that the learned trial Judge also found that the reasons given by respondent are not satisfactory. Despite that, the learned trial Judge allowed the application subject to the payment of costs of Rs.4,000/-. This costs is divided by directing the respondent to pay costs of Rs.2,000/- to the plaintiff. For all these reasons, he submitted that the impugned order deserves to be set aside.

4.

I have considered the submissions advanced by Mr.Nighot. I have also perused the material on record. As noted earlier, on 17/07/2011, exparte order was passed against the respondent-defendant. It is no doubt true that he filed application on 13/03/2014 i.e. nearly after 2 and 1⁄2 years. The learned trial Judge observed in paragraph 3 that reasons given by the defendant are not satisfactory. However, having regard to the fact that defendant has filed application along with written statement, in the interest of justice, application was allowed subject to imposing heavy costs. Accordingly, the learned trial Judge allowed the application subject to costs of Rs.4,000/- out of which, Rs.2,000/- was ordered to be paid to the plaintiff. In my opinion, the impugned order is purely discretionary and is passed with a view to giving a fair 2/3

opportunity to the respondent-defendant to defend the suit. 5.

In view thereof, no case is made out for invocation of powers under Article 227 of the Constitution of India. Hence, Petition fails and the same is dismissed.

(R. G. KETKAR, J.) 3/3