Messrs. Radio T. V. Commercials, Partnership Firm v. Shobha Rajkumar Rajpal And ORS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION Digitally signed by SHAMBHAVI NILESH SHIVGAN Date:
2022.04.26 13:51:08 +0530 APPEAL FROM ORDER NO.763 OF 2017 SHAMBHAVI NILESH SHIVGAN WITH CIVIL APPLICATION NO.1027 OF 2017 James C. Pereira & Ors.
...Appellants Vs Shobha Rajkumar Rajpal & Ors.
...Respondents
WITH APPEAL FROM ORDER NO.744 OF 2017 WITH CIVIL APPLICATION NO.995 OF 2017 M/s. Radio T.V.Commercials, Partnership Firm ...Appellant Vs Shobha Rajkumar Rajpal and Ors.
...Respondents
...
Mr. Mayur Khandeparkar with Ms. Gayatri Sharma i/by S.K.Shrivastav and Co. for Respondent No.7 in AO/763/2017 and for Appellants in AO/744/2017.
Mr. Girish Godbole, Senior Counsel with Mr. Ferhan Duhas with Ms. Jyoti Ghag i/by Dua Associates for Respondents. Mr. Sukand Kulkarni with Ms. Diksha Tripathi i/by Mr. Amit Karkhanis for Respondent Nos.6 to 8 in AO 744/2017 and for appellant in AO/763/2017.
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : APRIL 13, 2022.
PRONOUNCED ON: APRIL 22, 2022 Shivgan 1/7
P.C. :
These Appeals From Order under Order 43 Rule 1(d) read with 104 of the Civil Procedure Code, 1908, challenges the order st September, 2017 by which the learned trial Judge declined dated 1 to set aside the ex-parte decree passed against the appellants. Brief Facts are as under;
Respondent No.1 filed Short Cause Suit No.8582 of 1998 before this Court against the appellants, inter-alia, for decree of declaration with respect to property called 'Ama House'. Appellants had appointed "Daphtari Ferreira & Divan" as their advocates on record before this Court and had instructed them to appear and file Written Statement. Accordingly, Written Statement was filed in the year 2006. Sometime, in the year 2015, appellants were informed about passing of final judgment and decree in the said suit in the Bombay City Civil Court. On enquiry, appellants were informed that said suit was transferred to City Civil Court, Bombay in view of the Bombay City Civil (Amendment) Act, 2012 and the decree was passed rd October, 2015. Whereafter, appellants moved Motion under on 23 Shivgan 2/7
Order 9 Rule 13 of the Code of Civil Procedure, 1908 ('CPC' for short) for setting aside the ex-parte decree passed against them. st September, Notice of Motion No.4860 of 2015 was dismissed on 1 2015. Therefore, these Appeals From Order.
Heard Mr. Khandeparkar, learned counsel for the appellants in Appeal From Order No.763 of 2017, Mr. Sukand Kulkarni for the appellants in Appeal From Order No.744 of 2017 and Mr. Girish Godbole, learned counsel for respondents/original plaintiffs.
Mr. Khandeparkar, learned counsel for the appellants would submit that the appellants/defendants filed their Written th June, 2015.
Statement and thereafter, issues were framed on 12 nd July, 2015, Mr. Khandeparkar Pointing out Roznama dated 2 submitted, on the said date, in absence of defendants, proceedings were adjourned for recording evidence. Mr. Khandeparkar pointed out th July, 2015, plaintiffs' affidavit in lieu of evidence, was that on 27 taken on record and the matter was adjourned for cross-examination/ Shivgan 3/7
marking of documents. Mr. Khandeparkar submitted although the affidavit of evidence was filed alongwith compilation of documents, its' copy was not served on defendants. His next submission is that, appellants could not attend the Suit Proceedings since the appearance of the advocate of the appellants was not shown on the cause-list of th February, 2015, 12 th June, 2015 and 2 nd June, 2015. Mr.
Khandeparkar in support of his submission would rely on the copies of cause-list of respective dates. Mr. Khandeparkar submitted that not showing the name of the advocate for the appellants in the cause-list was 'Sufficient Cause' to set aside the ex-parte decree under Order 9 Rule 13 of the CPC. Mr. Khandeparkar, relied on the judgment of the Apex Court in the case of Harishankar 2001 (10) SCC 301. The issue before the Apex Court was "Whether, not showing the name of the advocate for the appellant in the cause-list is 'Sufficient Cause' to set aside the ex-parte decree under Order 9 Rule 13 of the CPC". The Hon'ble Apex Court has held that 'advocates' non-appearance in the case when the case is taken up on the ground that his name was not shown in the cause-list is indeed a 'Sufficient Cause'. Thus, Mr. Khandeparkar submitted that inspite of showing the 'Sufficient Shivgan 4/7
Cause', the trial Court declined to set aside the ex-parte decree and, therefore, interference is called for. Nextly, he submitted that having regard to the facts of the case, ex-parte decree be set aside and parties be relegated, to trial at the stage of leading evidence, in-asmuch as the issues in the suit have been framed. Mr. Godbole, learned Senior Counsel for the respondents, submitted that suit in question was transferred to City Civil Court, st December, 2012. Decree therein was passed on Greater Bombay on 1 rd October, 2015. Yet, the application moved by the appellants on th December, 2015 seeking to set aside the ex-parte decree does not disclose the reasons, which prevented them from attending the suit proceedings since December, 2012. Mr. Godbole, therefore, submitted that the impugned order requires no interference. Herein, pursuant to Bombay City Civil (Amendment) Act th August, 2012, various suits as 2012 and Notification dated 28 specified in the Act pending in this Court were transferred to Bombay Shivgan 5/7
st October, 2012. A list of matters City Civil Court with effect from 1 so transferred was put up on the web-site of the Bombay High Court. Therefore, it cannot be said that the appellants were not aware about transfer of the subject suit to the Bombay City Civil Court. However, th June, 2015 when issues were framed, names the fact remains, on 12 of the appellants' advocate were not shown in the cause-list. Likend July, 2015, 27 th July, 2015, 24 th August, 2015 and 5 th wise on 2 rd October, 2015, appellants' advocate name September, 2015 and 23 was not shown in the cause-list. Therefore, it is to be held that the appellants were prevented by 'Sufficient Cause' from appearing when suit was called on for hearing. As such, it cannot be said, that the defendants did not appear in proceedings deliberately.
Apex Court in the case of Harishankar (Supra) has held that 'not showing the name of the advocate in the cause-list is a 'sufficient cause' to set aside the ex-parte decree. Therefore, in consideration of the facts of the case, in my view, interference in the impugned order is called for. I hold that the appellants have shown 'Sufficient Cause' for setting aside the ex-parte decree passed in Short Cause Suit No.8582 of 1998. As a result, the appeals are allowed.
st September, 2017 is quashed and set aside. In consequence, dated 1 rd October, 2015 in Short Cause Suit the ex-parte decree dated 23 No.8582 of 1998 is quashed and set aside subject to cost of Rs.25,000/- each in both the appeals payable to the plaintiffs within four weeks from today. In the facts and circumstances of the case, th June, parties to the suit shall appear before the trial Court on 13 2022. Whereafter, trial Court shall proceed with suit to hold trial in accordance with law and shall make an endeavour to dispose of the st May, 2023. The Appeals From Order are suit preferably before 31 allowed and disposed of in aforesaid terms.
As the appeals itself are disposed of, nothing survives in the applications therein and same are also disposed of. (SANDEEP K. SHINDE, J.) Shivgan 7/7