Bombay High Court
Rupchand Rajmalji Jain (Sancheti) vs Jayantilal Kalyanji Gada And Ors on 22 February, 2018
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5056 OF 2015
Rupchand Rajmalji Jain (Sancheti) ]
of Mumbai, Indian Inhabitant, ]
Age not known, ]
R/at 213, N.M. Joshi Marg, ]
Opp. Mafatlal Mills, Mumbai - 400 013. ] .... Petitioner
Versus
1. Jayantilal Kalyanji Gada ]
of Mumbai, Indian Inhabitant, ]
R/at 401, Asha, 4th Floor, 386, ]
Shankara Matham Road, ]
Matunga, Mumbai - 400 019. ]
2. Khushal Kalyanji Gada ]
of Mumbai, Indian Inhabitant, ]
R/at 13, Nagda Mansion, 3rd Floor, ]
Plot No.379, Sankara Matham Road, ]
Matunga, Mumbai - 400 019. ]
3. Harsha Haresh Vira ]
of Mumbai, Indian Inhabitant, ]
R/at 1, Mahavir Darshan, Ground Floor, ]
Mamlatdarwadi Road No.3, ]
Opp. Telegraph Office, Malad (West), ]
Mumbai - 400 064. ]
4. Gunvanti Jayantilal Gada, ]
Wife of Jayantilal Kalyanji Gada ]
of Mumbai, Indian Inhabitant, ]
R/at 401, Asha, 4th Floor, 386, ]
Shankara Matham Road, Matunga, ]
Mumbai - 400 019. ]
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5. P.R. Enterprises, ]
A Partnership Firm, carrying on ]
Business at 176/177, Agiary Lane, ]
Tembhi Naka, Thane - 400 602 ]
And also at Dadabhai Chawl, ]
N.M. Joshi Marg, Lower Parel, ]
Mumbai - 400 013. ]
6. Footarmal Harkhchand Jain ]
of Mumbai, Indian Inhabitant, ]
Age not known, ]
R/at 518, Sewani Sadan, S.J. Marg, ]
Lower Parel, Mumbai 400 013. ]
7. The Official Assignee, ]
High Court, Bombay. ] .... Respondents
Mr. S.M. Gorwadkar, Senior Counsel, a/w. Mr. Kiran Jain and Ms. Nita
Solanki, i/by M/s. Kiran Jain & Co., for the Petitioner.
Mr. K. Narayanan, a/w. Mr. Tejas P. Shah, i/by M/s. Narayanan &
Narayanan, for Respondent Nos.1 to 4.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 22 ND FEBRUARY 2018.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Gorwadkar, learned Senior Counsel for the Petitioner, and Mr. Narayanan, learned counsel for Respondent Nos.1 to 4.
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2. By this Writ Petition, filed under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 24 th February 2015 passed by the City Civil Court, Mumbai, thereby dismissing unregistered Notice of Motion filed by the present Petitioner in Suit No.7489 of 2003 (H.C. Suit No.3957 of 2003).
3. The present Petitioner is Defendant No.2 in the Suit filed before the Trial Court. The Notice of Motion was moved by him seeking condonation of delay of 902 days for setting aside the order dated 11 th September 2012, which was passed by the Prothonotary and Senior Master of this Court. When the Suit was before this Court, the said order of "Suit to proceed without written statement" was passed against the present Petitioner. Subsequent thereto, when the Suit was transferred to the City Civil Court, Mumbai, in view of enhancement of pecuniary jurisdiction of the said Court, another order dated 22 nd July 2013 was passed by the said Court, allowing Respondent Nos.1 to 4 - Original Plaintiffs to proceed with hearing of the Suit ex-parte against the present Petitioner.
4. The present Notice of Motion was filed by the Petitioner before the Trial Court to set aside this order and also to take his written statement on record to establish his defence. The said Notice of Motion was 3/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: strongly resisted by Respondent Nos.1 to 4 - Original Plaintiffs and the Trial Court, after giving reasons thereto, was pleased to reject the same.
5. While taking exception to this order of the Trial Court, the submission of learned counsel for the Petitioner is that, the said order was passed without any regard to the reason given by the Petitioner that, on account of his Advocates not taking interest in the matter, the order of "No WS" and "ex-parte" came to be passed against him. It is submitted that, the Trial Court should not have adopted such technical approach; especially when the provisions of Order 8 Rule 1 of CPC are of directory nature and not mandatory. Further, it is submitted that, as held by the Apex Court in the case of Zolba Vs. Keshao and Ors., (2008) 11 SCC 769, having regard to the present adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. It is urged that, unless specified by the express and specific language of the statute, as observed by the Apex Court in this Judgment, the provisions of Order 8 Rule 1 of CPC or any procedural enactment should not be construed in a manner, which would leave the Court helpless to meet extra-ordinary situations in the ends of justice.
6. According to learned counsel for the Petitioner, having regard to the fact that the Petitioner in this case was duly represented by his 4/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: Advocates when the Suit was pending before this Court; however, as his Advocates were not ready to appear in the Trial Court and he being not aware about filing of such written statement and was engaged in the matters, which were pending in the Court, there was sufficient and valid reason made out by the Petitioner to condone the delay in filing the written statement, or, which is, actually, the extension of time for filing of the written statement. It is urged that, as sufficient reason was made out by the Petitioner, the Trial Court should have, in the interest of substantive cause of justice, allowed such application; especially when Respondent Nos.1 to 4 - the Original Plaintiffs have not shown as to what prejudice is likely to be caused to them, if such written statement is allowed to be filed on record, and the matter is decided on merits. According to learned counsel for the Petitioner, if the provisions of Order 8 Rule 1 of CPC are time and again held by the Apex Court to be directory and not at all mandatory, the discretion of the Court should be exercised in such a way that it advances the substantive cause of justice and not to defeat the very ends of justice.
7. Reliance is also placed by learned counsel for the Petitioner on the Judgment of the Apex Court in the case of Municipal Corporation of Ahmedabad, through the Municipal Commissioner Vs. Voltas Limited and Ors., 1994 SCC OnLine Guj 78, to submit that, while deciding the question 'whether extension of time should be granted or not for filing of 5/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: the written statement', the merits of the matter should not be looked into. Therefore, the observations made by the Trial Court on merits of the case, for rejecting the Petitioner's application for filing his written statement on record, cannot be proper. It is urged that, the learned counsel for Respondent Nos.1 to 4 - Original Plaintiffs is also emphasizing on the merits of the matter and how it is sufficient to deny such right to the Petitioner. According to learned counsel for the Petitioner, there is no question of any prejudice being caused to Respondent Nos.1 to 4, if the matter is decided on merits. Moreover, if any such prejudice is likely to be caused, then, the Petitioner is ready to compensate the same by paying the costs. The learned counsel for the Petitioner also points out to the order passed by this Court [Coram : R.G. Ketkar, J.] at the time when the matter was placed before it on 25 th June 2015, when the Petitioner has offered to deposit the costs of Rs.15,000/- in the Court and the said costs are also deposited in the Court. Thus, according to learned counsel for the Petitioner, this is a fit case where this Court should set aside the order passed by the Trial Court and allow the Petitioner to resist the Suit on merits by filing his written statement. Accordingly, the ex-parte order passed against him in the Suit also needs to be set aside.
8. Per contra, learned counsel for Respondent Nos.1 to 4 - Original Plaintiffs has strongly supported the impugned order passed by the Trial 6/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: Court and has taken this Court through the entire course of this litigation to point out that, the present application filed by the Petitioner is not at all a bonafide one and the reason given by him for extending the time for filing of written statement and for setting aside the ex-parte order is also not bonafide. It is urged that, the Petitioner is very much concerned with the other Defendants and very closely related to them. Defendant No.1, namely, "P.R. Enterprises", i.e. Respondent No.5 herein, has also filed such Notice of Motion before the Trial Court for setting aside the order of "No WS" and ex-parte. That Notice of Motion was rejected by the Trial Court and this Court, by its order dated 5 th February 2015, has confirmed the said order in Writ Petition No.764 of 2015 along with Writ Petition No.766 of 2015. Only after Defendant No.1 failed to contest the Suit on account of rejection of his written statement, the another round of litigation is taken up by the Petitioner-Defendant No.2 seeking the similar prayer and thereby depriving Respondent Nos.1 to 4 - Original Plaintiffs from their lawful right of getting possession of the suit flat. According to learned counsel for Respondent Nos.1 to 4, therefore, a grave and serious prejudice is likely to be caused to Respondent Nos.1 to 4, if the written statement is allowed to be brought on record, that too after a period of more than 10 years from filing of the Suit and more than 3 years from the order of "No WS"
passed by the Prothonotary & Senior Master of this Court. It is urged that, the conduct of the Petitioner displays a deliberate attempt of 7/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: prolonging the litigation and in such situation, this Court should not show any indulgence in allowing such application. The Trial Court has rightly observed the conduct of the Petitioner and also the course of the litigation and thereafter, finding that the cause put up by the Petitioner for setting aside "No WS" order and ex-parte order being not genuine and bonafide, rejected the Petitioner's application. Therefore, no interference is warranted in the impugned order passed by the Trial Court.
9. In the light of these rival submissions advanced by learned counsel for the Petitioner and Respondent Nos.1 to 4, the question arising for consideration is, 'whether the cause given by the Petitioner for setting aside the order of the Suit being proceeded without written statement and ex-parte is just, bonafide and proper in the present case ?'
10. There can hardly be any dispute that the provisions of Order 8 Rule 1 of CPC are directory and not mandatory in nature. The law in this respect is fairly well settled and crystallized through the Judgment of the Apex Court in the case of Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and Ors., (2006) 1 SCC 46 , and also the Judgment relied upon by learned counsel for the Petitioner that of Zolba Vs. Keshao & Ors. (Supra). However, as observed by the Apex Court in the case of Zolba Vs. Keshao & Ors. (Supra) that, "it would be open to the Court to permit the Defendant to file his written statement, only if exceptional 8/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: circumstances have been made out". Therefore, in the present case, one has to consider whether the exceptional circumstances are made out and whether the reasons given by the Petitioner for setting aside such order of "No WS" passed against him and for condonation of delay in filing the written statement is just, legal and correct. In order to ascertain the said reasons, this Court has to take into consideration the course of the litigation and for that purpose, the facts of the present case.
11. The genesis of the present Suit is the 'Consent Terms', which were filed in the R.A.E. Suit No.717/1552/94 filed before the Small Causes Court, Bombay. It was compromised between the Original Plaintiff, i.e. the father of Respondent Nos.1 to 4 herein, and Defendant No.1 - P.R. Enterprises. The Original Plaintiff was a tenant in respect of Shop No.14 of the suit building and as per the 'Consent Terms' arrived at between the parties, Defendant No.1 undertook to provide him the shop in the construction to be undertaken and for that purpose, he had also agreed to sell two flats, being Flat No.A-3 and Flat No.B-2, to the Original Plaintiff of this Suit. As the said 'Consent Terms' were not complied with, even the Contempt Petition was filed in the Small Causes Court, Bombay, and in the said Contempt Petition, the order was passed directing Defendant No.1 to handover possession of the shop premises to the Original Plaintiff. As the said order was not complied with, the 9/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: 'Reference' was made to this Court and thereafter, the order was complied and possession of the shop premises came to be handed over to Respondent Nos.1 to 4, i.e. the present Plaintiffs, on 15 th September 2007.
12. Thereafter, it is a matter of record that, as the Original Defendant No.1 did not handover possession of two flats, being Flat Nos.A-3 and B- 2, to Respondent Nos.1 to 4, the present Suit came to be filed for specific performance of the Agreement in respect of these two flats. A Notice of Motion was also filed therein by Respondent Nos.1 to 4 for interim reliefs. During the pendency of the said Notice of Motion, on 18 th December 2003, the statement was made by Defendant No.1 before this Court that, the flats in question have already been sold out to third parties. Upon this statement, Respondent Nos.1to 4had joined the third parties to the Suit as party-Defendants in May 2004. The present Petitioner, who is purchaser of Flat No.A-3, is joined as 'Defendant No.2' and Defendant No.3, who is purchaser of Flat No.B-2, is also joined in the Suit.
13. Thereafter, Respondent Nos.1 to 4 - Original Plaintiffs had filed a fresh Notice of Motion against Defendant Nos.2 and 3, who were joined as 'third party purchasers' of the suit flats and at that time, Defendant Nos.2 and 3 had made a statement in the hearing of Notice of Motion 10/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: that, they would not deal with the flats in question. As a result, the Court Receiver, who was appointed in the case at an ad-interim stage, was discharged; especially, in the light of the statement made by the present Petitioner and Defendant No.3 in the Court.
14. Subsequent thereto, on 11th September 2012, when the matter appeared before the Prothonotary and Senior Master of this Court, as, till then, no written statement was filed by any of the Defendants, a noting has been made to the effect that no written statement is filed and the Suit was transferred to the list of the 'Undefended Suits'. Thereafter, some time in September 2012, the Suit came to be transferred to City Civil Court, Mumbai, and then, after a period of about two years therefrom, for the first time, Defendant No.1 preferred Notice of Motion No.4181 of 2014 and Notice of Motion No.4182 of 2014 for setting aside the order of "No WS" and "ex-parte" passed against him. The Trial Court rejected both the Notices of Motion and, therefore, Defendant No.1 had challenged the said order by preferring Writ Petition No.764 of 2015 and Writ Petition No.766 of 2015. Both these Writ Petitions came to be dismissed by this Court [Coram : R.M. Sawant, J.] vide order dated 5th February 2015, clearly holding that, though the provisions of Order 8 Rule 1 of CPC are directory and not mandatory, the order of "No WS" can be set aside, only if sufficient cause is made out. This Court further held that, considering the background to the filing of the Suit, which is non- 11/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: compliance of the 'Consent Terms', and having regard to the entire course of litigation and also in the absence of any reasonable and satisfactory explanation offered by Defendant No.1, the order of "No WS"
passed against him is justified and cannot be set aside. It was further held that, Defendant No.1 did not satisfy the tests laid down for seeking extension of time to file the written statement, in so far as Order 8 Rule 1 of the CPC is concerned and hence, no indulgence can be shown to him.
15. After this order dated 5th February 2015 was passed by this Court, now it is the turn of Defendant No.2, who has preferred this Notice of Motion before the Trial Court for setting aside the order of "No WS" and "ex-parte" passed against him.
16. In support of his case, Defendant No.2 has filed affidavit stating that, he has purchased Flat No.A-303 by virtue of registered Sale Deed dated 4th March 2002. He is a bonafide purchaser, as he was not party to the Suit filed in Small Causes Court, Bombay, between the Original Plaintiff and Defendant No.1. It is submitted by him that, he was in no way concerned with the dispute between the Original Plaintiff and Defendant No.1. He became aware of the same only when he was joined in the Suit in the year 2003. In the Notice of Motion No.3709 of 2003, which was taken out by the Original Plaintiff in the said Suit, he has made a statement that, he would not alienate or dispose of or create any 12/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: third party interest in the suit flat. According to him, meanwhile, as the Suit was pending for hearing and final disposal and has not come before the Court for a quite long time, he made enquiry with his lawyer, but he was informed that he will be noticed when the matter will be taken up for hearing and thereafter, the Suit came to be transferred to the City Civil Court, Bombay. As and when, thereafter, he came to know about the order of "No WS" passed against him, he has moved this Notice of Motion for setting aside the said order.
17. Now, as regards his first contention that he was in no way concerned with Original Defendant No.1 and he was totally a bonafide purchaser of the property, learned counsel for Respondent Nos.1 to 4 has pointed out that, the Petitioner herein is very much the husband of one of the Partners of the Firm. He is direct brother of the three Partners and also related to most of the Partners in the Firm. Therefore, his contention, that he was not concerned with the other Defendant in any way or he is a bonafide purchaser of the suit flat, apparently, does not stand on sound footing and has to be rejected.
18. Even if this submission is not taken into consideration, the fact remains that, since the year 2003, the present Petitioner was very much aware of the litigation between the parties. Not only that, he was made a party to the Suit and he has also made a statement in this Court that he 13/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: will not create third party interest in the suit flat and on the basis of the said statement only, the order of appointment of 'Court Receiver' was set aside. Thus, the Petitioner was very much aware since the year 2003 itself that this litigation is pending in respect of the suit flats and he has also given some undertaking before the High Court. Therefore, it was expected that, he should have been careful about contesting the said litigation. It is surprising to note that, till the Prothonotary and Senior Master passed the order of "No WS" against him on 11th September 2012, he has not taken any steps from 2003 to 2012 for filing written statement and/or contesting the said matter.
19. Even after the order of "No WS" was passed on 11 th September 2012, Petitioner did not take any steps to set aside that order till this Notice of Motion was filed in the year 2014; thus, making it clear that, his conduct has always and throughout remained totally negligent and the notice of the said fact is rightly taken by the Trial Court.
20. It also cannot be ignored that, only after the Notice of Motion filed by Defendant No.1 for setting aside the order of "ex-parte" and "No WS"
passed against him was rejected by the Trial Court and the said order was confirmed by this Court, the Petitioner has entered into the picture and is making a claim that on account of some genuine reason, he was prevented from filing written statement; especially, having regard to the 14/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: fact that, the Petitioner is closely related to the Partners of Defendant No.1, this Notice of Motion clearly appears to be filed in collusion with Defendant No.1, only with an intention to protract the hearing of the Suit.
21. Moreover, as regards the cause also, Petitioner cannot shift the blame totally on his Advocates. The names of the Advocates are not mentioned in the affidavit filed in support of the Notice of Motion, nor it is stated that after those Advocates had shown their unwillingness to appear in the Suit transferred to the City Civil Court, Bombay, Petitioner has made any efforts to engage another Advocate. Merely saying that he relied upon the Advocates and, therefore, could not file written statement, is such a vague plea that it cannot be accepted as bonafide plea in the facts of the present case. In the present case, absolutely no "exceptional circumstances", which are required to be made out, as held by the Apex Court in the case of Zolba Vs. Keshao and Ors. (Supra), have been made out to set aside such order of "No WS"; considering that the delay in the present case is of three years from the date of passing of order of "No WS" and two years from the date when "ex-parte" order was passed and as a matter of fact, more than 10 years have been lapsed, when the Petitioner was joined in the Suit as additional Defendant. One could have understood and excused the delay, if Petitioner was not aware of the litigation. Surprisingly, he was very much aware of the 15/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: litigation; he was contesting the same; giving undertaking also to the Court and despite that, has remained totally careless and negligent in filing the written statement on record before the Trial Court. Only when the matter proceeded ex-parte and it was fixed for recording of evidence of the Original Plaintiffs, the Petitioner has turned up saying that, he should be allowed to file written statement.
22. Even if the provisions of Order 8 Rule 1 of CPC are directory and not mandatory, in order to exercise such discretion by the Court, there should be some convincing reason and as observed by the Apex Court, some "exceptional circumstances". Which are those exceptional circumstances is not at all explained by the Petitioner. His only focus is on the contention that, he has relied upon the assurance of the Lawyers, but, if, according to him, those Lawyers were not ready to appear when the Suit was transferred to the City Civil Court, Bombay, then, what steps he has taken to appoint another Advocate in the year 2012 itself? No explanation is offered there for.
23. In such a litigation, in which these two applications have been filed for setting aside such order of "No WS" and "ex-parte", which applications do not appear to be bonafide and the reason given by the Petitioner is also not a genuine, if an indulgence is shown by this Court, then, the very object of inserting this provision of Order 8 Rule 1 by way 16/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 ::: of amendment of CPC will be totally frustrated. It would be as good as allowing the litigant to drag the proceedings as per his own convenience and as and when he feels, he should come before the Court and blame his Advocate on vague plea and seek setting aside of the order of "No WS". This itself is going to cause grave prejudice not only to the Original Plaintiffs, who are contesting the litigation for their bonafide cause since last so many years, but, it is also as good as amounting to abuse of the process of the Court.
24. Mere offering to pay the cost or deposit of the cost cannot alleviate the situation, if the process of the Court itself is taken for a ride. It is true that, normally, the approach of the Court is to ensure that the matter is contested on merits and with this approach only, the Court is indulgent, if there is a delay in filing of the written statement; but, if one has regard to the facts of the present case, it is difficult to adopt such approach. Not only the delay is inordinate, but the reason, on account of which the delay is occurred, is also not genuine, not exceptional and not bonafide.
25. In such situation, no fault can be found in the impugned order passed by the Trial Court, rejecting the Notice of Motion, which was taken out by the Petitioner for condoning the delay of more than ten years and for setting aside the "ex-parte" order.
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26. The impugned order passed by the Trial Court, therefore, being just, legal and correct, this Court, in its writ jurisdiction, does not find any reason to interfere in the same. The Writ Petition, therefore, stands dismissed.
27. Rule is discharged.
28. At this stage, learned counsel for the Petitioner requests this Court to extend the ad-interim relief, which was granted by this Court on 25 th June 2015. Learned counsel for Respondent Nos.1 to 4 strongly resists the said request and in my considered opinion, rightly so. Having regard to the reasons, which I have given while dismissing the present Writ Petition, I do not find that the ad-interim relief, which was extended from time to time, should be extended now, when the Writ Petition is found to be without merits. Hence, this request is also rejected.
[DR. SHALINI PHANSALKAR-JOSHI, J.] 18/18 WP-5056-15.doc ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:12:14 :::