Bombay High Court
Harendra Mahendrakumar Panalal And Anr vs Bharat Mahendrakumar Panalal And 2 ... on 14 January, 2020
Author: Sarang V. Kotwal
Bench: K.K. Tated, Sarang V. Kotwal
Laxmi 1
33 APP 90-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 90 OF 2019
IN
NOTICE OF MOTION NO. 184 OF 2018
IN
CHAMBER ORDER NO. 1273 OF 2017
IN
SUIT (L) NO. 137 OF 2017
Harendra Mahendrakumar Panalal & Anr. ...Appellants
Vs.
Bharat Mahendrakumar Panalal & Ors. ...Respondents
....
Gauraj Shah a/w Akshay Sawant i/b Chitnis Vaithy & Co. for the
Appellants.
J. P. Sen, Sr. Counsel with Mr. Ashish Kamat, a/w Anuja Abhyankar &
Krunal Mehta i/b Federal & Co. for Respondent No.1.
....
CORAM : K.K. TATED &
SARANG V. KOTWAL, JJ.
DATE : 14th JANUARY, 2020 P.C. Heard Learned Counsel for the parties.
2. By consent of both the parties, matter is taken on board for final hearing at the stage of admission itself.
3. By this Appeal, the Appellants/Original Plaintiffs are challenging order dated 16th August, 2018 passed by the Learned 1/6 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 09/06/2020 09:11:06 ::: Laxmi 2 33 APP 90-19.odt Single Judge in Notice of Motion No. 184/2018 dismissing the same which was for restoration of Chamber Order No. 1273 of 2017 which was dismissed by order dated 21st December, 2017 for non prosecution.
4. The Learned Counsel appearing on behalf of the Appellants/Original Plaintiffs submits that, Appellants/Original Plaintiffs filed Suit (L) No. 137/2017 for partition of properties. He submits that in that suit, the Registry raised several objections. He submits that, thereafter, matter was on board before the Learned Registrar on 20th June, 2017 for removal of office objections. At that time Prothonotary and Senior Master passed conditional order to remove all office objections on or before 11 th July, 2017, failing which, suit shall stand rejected under Rule 986 of the Bombay High Court, (Original Side) Rules. He submits that, it remained on the part of the Appellant to remove all office objections within the stipulated time, hence, the suit stood dismissed. Therefore, the Appellants preferred Chamber Order No. 1273/2017 for restoration of suit and extension of time to remove all office objections. He submits that the said Chamber Order No. 1273/2017 suddenly appeared before the Court on 21st December, 2017. He submits that, the Advocate on record for the Original Plaintiffs who filed chamber order is practices in criminal courts and not in High Court regularly. Therefore, it remained on his part to notice the matter. When the chamber order was called out, no one appeared on behalf of the Plaintiffs, therefore, the Learned Single Judge by order dated 21 st 2/6 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 09/06/2020 09:11:06 ::: Laxmi 3 33 APP 90-19.odt December, 2017 dismissed the chamber order with cost of Rs. 10,000/-. He submits that on the same day, the Advocate on record for Plaintiffs requested the Respondents' Advocate to remain present in Court for recalling the said order by consent. He submits that as no one appeared on behalf of the Respondents on that day, the Appellants preferred Notice of Motion No. 184 of 2018 for recalling order dated 21st December, 2017 and hearing of Chamber Order No. 1273/2017 on its own merits.
5. The Learned Counsel appearing on behalf of the Appellants submits that the Learned Single Judge dismissed Notice of Motion No. 184/2018 on the ground that the Appellants failed to disclose the sufficient cause for non removal of office objections. Hence, they preferred the present Appeal. He submits that, in the interest of justice, this Hon'ble Court be pleased to set aside order dated 16th August, 2018 passed by the Learned Single Judge in Notice of Motion No. 184/2018 and order dated 21 st December, 2017 in Chamber Order No. 1273/2017 and allow the Appellant to remove all office objections within a particular time.
6. The Learned Counsel appearing on behalf of the Appellants submits that even the Learned Single Judge came to the conclusion in order dated 16th August, 2018 that the Applicant failed to disclose the sufficient cause for non appearance in chamber order on 21st December, 2017. He submits that because of the mistake on the part of Advocate, litigant should not be suffered. He submits that, they have good chance of success in the suit. He submits that, 3/6 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 09/06/2020 09:11:06 ::: Laxmi 4 33 APP 90-19.odt the Appellants are undertaking to remove all office objections within the stipulated time. Therefore, in the interest of justice, this Hon'ble Court be pleased to allow the present Appeal and the suit to be heard on its own merits.
7. On the other hand, the Learned Senior Counsel for the Respondents vehemently opposed the present Appeal. He submits that, the Appellants failed to show the sufficient cause, why no one appeared before the Learned Single Judge when the Chamber Order No. 1273/2017 was on board. He submits that, even the Prothonotary and Senior Master raised several objections in a copy of plaint, but the Appellants failed to remove the same. He further submits that, even this Court by order dated 6 th February, 2019 granted four weeks time to the Appellants so that he can be in a position to produce translation of documents, which according to the office/Registry, are not legible and certain objections are raised in respect of those documents, but they failed and neglected to do the same. Therefore, there is no question of allowing the present Appeal. There is no substance in the submission made by the Appellant and therefore, the Appeal to be dismissed with costs.
8. We heard both sides at length. It is to be noted that, in the present proceeding, because of mistake on the part of the Advocate, the suit stood dismissed for non removal of office objections. Apart from that, when the chamber order was on board on 21 st December, 2017, it remained on the part of the Advocate for Appellants on record to appear on behalf of the Appellants. Because of the mistake 4/6 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 09/06/2020 09:11:06 ::: Laxmi 5 33 APP 90-19.odt on the part of the Advocate, litigant should not suffer. These facts were not considered by the Learned Single Judge at the time of dismissing the Appellants' Notice of Motion No. 184/2018. It is to be noted that the Apex Court in the matter of N.Balkrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 held that the object of fixing the time limit is not meant to destroy the rights. The law of limitation fixes a lifespan for such legal remedy for the general welfare.
9. Considering the facts and circumstances of the present case and in view of the law laid down by the Apex Court in the matter of N.Balakrishnan (Supra), we are of the opinion that the Appellants have made out a case for allowing this Appeal, but at the same time he has to pay cost of Rs. 1 lakh.
10. Hence, the following order:
a. Order dated 16th August, 2018 in Notice of Motion No. 184 of 2018 in Chamber Order No. 1273/2017 and order dated 21 st December, 2017 in Chamber Order No. 1273/2017 passed by the Learned Single Judge are set aside.
b. Chamber Order No. 1273/2017 filed by the Appellants/Original Plaintiffs is partly allowed.
c. Notice of Motion No. 184 of 2018 stands disposed off.
d. Order dated 20th June, 2017 passed by the Prothonotary and Senior Master by which the suit stood rejected under Rule 986 5/6 ::: Uploaded on - 22/01/2020 ::: Downloaded on - 09/06/2020 09:11:06 ::: Laxmi 6 33 APP 90-19.odt of the High Court, (Original Side) Rule, is set aside.
e. Suit (L) No. 137 of 2017 is restored on file before the Learned Single Judge.
f. The Appellant/Original Plaintiff is directed to remove all office objections in Suit (L) No. 137/2017 on or before 7 th February, 2020, failing which, the Appeal shall stand dismissed without further reference to the Court.
g. The Appellants to pay cost of Rs. 1 Lakh. h. The cost to be deposited in Kirtikar Library, Appellate Side,
First Floor, Bombay High Court, on or before 24 th January, 2020 and place on record receipt to that effect with copy to other side, failing which, the Appeal shall stand dismissed without further reference to the Court.
i. The Appeal allowed accordingly.
(SARANG V. KOTWAL, J.) (K.K. TATED, J.))
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