Bombay High Court
Jsd Developers Pvt. Ltd vs Mahommed Gulam Abbas Nulwala And Ors on 10 June, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:23211
Neeta Sawant 40-WP-4524-2023.docx-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4524 OF 2023
M/s. JSD Developers Pvt. Ltd.
A Company duly registered under the
Provisions of Indian Companies Act ....Petitioner
: Versus :
1. Mahommed Gulam Abbas Nulwala
2. Hasumati Indukar Shah, deleted
since deceased
3. Piyush Indukumar Shah
Through His Constituted Attorney-
Yogesh Purushottam Vyas
4. Husauni Gulam Abbas Nulwala
5. Nuruddin Gulam Hussein Rungwala
Alongwith Respondent No.1 are the Partners
of M/s. Imperial Iron Works ....Respondents
__________________________________________________
Mr. Prashant G. Karande a/w. Mr. Sudam Patil, Mr. Chandrashekhar V.
Yadav, for the Petitioner.
Mr. Omar Khaiyam Shaikh, for Respondent No.1.
__________________________________________________
CORAM : SANDEEP V. MARNE, J.
Dated : 10 June 2024.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Mr. Shaikh waives service on behalf of Respondent No.1, who is the contesting Respondent in ___Page No.1 of 8___ 10 June 2024 ::: Uploaded on - 13/06/2024 ::: Downloaded on - 23/06/2024 23:48:32 ::: Neeta Sawant 40-WP-4524-2023.docx-FC the present case. With the consent of the learned counsel appearing for the parties, the petition is taken up for final disposal.
2. By this petition filed under Article 227 of the Constitution of India, the Petitioner challenges Order dated 31 March 2022 passed by the Court of Small Causes at Mumbai in MARJI Application No. 59 of 2019 filed in T.E. & R. Suit No. 5/6 of 2011. By order dated 31 March 2022, the Small Causes Court has allowed the MARJI Application and has condoned the delay of 2378 days in filing application for setting aside the ex-parte decree dated 22 December 2012 in T.E. & R. Suit No. 5/6 of 2011.
3. I have heard Mr. Karande, the learned counsel appearing for the Petitioner and Mr. Shaikh the learned counsel appearing for Respondent No.1, who is the contesting Respondent and who had filed MARJI Application No. 59 of 2019.
4. After having considered the submissions canvassed by the learned counsel appearing for the parties, it is seen that specific admissions are given by Respondent No.1 both in pleadings as well as in his evidence that he acquired information about filing of suit by the Plaintiff in the year 2014. In Para-4 of the MARJI Application No.59 of 2011, it is pleaded that Respondent No.1 acquired knowledge from Smt. Jyoti Shah about ex-parte decree and thereafter he took out application at Exhibit-9 seeking dismissal of MARJI Application No.117/2013 filed for execution of the decree. Acquisition of knowledge about filing of the suit in the year 2014 is also admitted by Respondent No. 1 in his cross-examination.
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5. After acquisition of knowledge about passing of ex-parte decree in the year 2014, Respondent No. 1 filed application at Exhibit-9 on 16 June 2014 seeking dismissal of MARJI Application No.117/2013 filed by Plaintiff for execution of the decree. The application for setting aside ex-parte decree was however filed by him in September 2019. Perusal of the averments of MARJI Application No. 59 of 2019 would indicate that no explanation is given for not filing the application for setting aside the ex-parte decree during the years 2014 to 2019. The relevant pleadings in this regard are to be found in paras-4, 6, 9 and 13 of the application which reads thus :
"4. I say that the Respondent No.1 has taken out Marji No.117 of 2013 for execution of the said ex-parte decree dated 22-12-2012. I say that when I came to know from reliable sources namely Jyoti Shah about the said Exparte decree & the said Marji No.117 of 2013 taken out by the Respondent No.1 (Plaintiff ), I took out Exhibit No 9 for dismissal of the Marji No.117 of 2013 for execution of the said exparte decree & setting aside exparte decree dated 22-1-2022 passed in T.E. & R Suit No. 5/6/2011. Hereto annexed & marked as Exhibit A is a copy of the said Exhibit 9 taken out by me in the said Marji No.117 of 2013 taken out by the Respondent No.1 (Original Plaintiff ) for execution of the decree dated 22- 12-2012.
6. I say that I had applied for the certified copy of the entire suit & execution proceedings on 8-7-2019 & the same was received to me on 28-8-2019. On 31 st August, 2019 I changed my advocate & engaged the present advocate who told me to give him the certified copy of the entire proceeding of the said Execution proceeding to study the case. After going through the entire certified copy of the proceeding of the said suit & Marji No.117 of 2013, on 11 September 2019 my advocate advised us to take out the present Marji as alleged service upon the Respondent No.1 (Defendant No.1), Respondent No.2 (Defendant No.2/Applicant) & Respondent No.3 (defendant No.3) is not as per law as the Respondent No.1 (Plaintiff ) did not make any attempt to serve the suit summon upon the Respondent No.1. (Plaintiff ) did not make any attempt to serve the suit summon upon the Respondent No.1 (defendant No.1, Respondent No.2 (defendant No.2/Applicant) & Respondent No.3 (defendant No.3) at the address of the suit premises. The alleged service of the suit summon was effected upon the Respondent No.1 (defendant No.1), Respondent No.2 ___Page No.3 of 8___ 10 June 2024 ::: Uploaded on - 13/06/2024 ::: Downloaded on - 23/06/2024 23:48:32 ::: Neeta Sawant 40-WP-4524-2023.docx-FC (Applicant/defendant No.2) & Respondent No.3 (defendant No.3) at the address mentioned in the cause title of the Plaint which is not last known address of the defendant N.1 to 3. My advocate further advised that the service upon the Respondent No.1 (Defendant No.1), Respondent No.2 (Applicant/Defendant No.2) & Respondent No.3 (Defendant No.3) is not as per law & will not be considered in the Marji No.117 of 2013 as scope of the section 47 of the CPC is very limited. I say that my advocate further advised me that for setting aside exparte decree dated 22-12-2012, Marji under order 9, rule 13 of the CPC is required. As a result thereof I have taken out the said Marji. Hereto annexed & marked as Exhibit No.B colly are the bailiff report, copy of the application for substituted service filed by the Respondent No.1 (original Plaintiff ) in the T.E. & R. Suit No. 5/6/2011 & Marji No.117 of 2013.
9. I say that I did not know that the Plaintiff had filed the above mentioned eviction suit against me. I say that when I came to know about the said suit & exparte decree dated 22-12-2012 from reliable source namely Jyoti Shah, I dook out the Exhibit No.9 in the said MARJI No.117 of 2013 for dismissal of the said Marji no.117 of 2013. I say that if I had come to know about the said suit I would have appeared & contested the suit as I have appeared in Marji no.117 of 2013 & contesting the said Marji No.117 of 2013. I say that the said MARJI No.117 of 2013 has also not been served upon me. As soon as I came to know about the said Marji No.117 of 2013, I appeared. I say that if I had wanted I could have waited till the said MARJI No.117 of 2013 was disposed & then I could have taken out the relevant proceeding to set aside exparte decree.
13. I say that I was under the bonafide impression that the question regarding service will also be considered in the Marji No.117 of 2013 for execution of the exparte decree dated 22-12-2012 taken out by the Respondent No.1 (Plaintiff ). I say that I am a layman & I do not know procedure of the court. I totally rely upon the advocate as far as the procedure of the Court is considered.
6. Perusal of the above averments would indicate that Respondent No.1 not only acquired knowledge about passing of ex-parte decree but started taking steps to protect his possession by appearing in the execution proceedings and opposing the same by filing application at Exhibit-9 on 16 June 2014. Instead of filing application for setting aside the ex-parte decree immediately after acquisition of such knowledge, Respondent No.1 spent time of over five long years in opposing the execution proceedings. Thus, in ___Page No.4 of 8___ 10 June 2024 ::: Uploaded on - 13/06/2024 ::: Downloaded on - 23/06/2024 23:48:32 ::: Neeta Sawant 40-WP-4524-2023.docx-FC the entire application, there is no explanation forthcoming as to why Respondent No.1 did not file application for setting aside the ex-parte decree when he was busy opposing the execution proceedings during such time. His explanation that he is a layman and was not aware about the correct procedure to be adopted cannot be accepted in view of the fact that the application at Exhibit-9 in the execution proceedings was also filed by him after securing legal advice. In my view, therefore there is absolutely no explanation pleaded in MARJI Application No. 59 of 2019 for not taking timely steps for setting aside ex-parte decree during the period from 2014 to 2019.
7. The Small Causes Court appears to have completely glossed over this aspect of absence of any explanation in the application and has proceeded to condone the inordinate delay of 2378 days by recording the following findings:
"28. Considering the application filed by the applicant i.e. defendant No.2, reply filed by respondent No.1(a) i.e. the original plaintiff and respondent No.5, this Court has gone through the record and proceedings of the matter and after hearing both the sides, it is clear that an ex-parte decree has been passed on 22.12.2012 in T.E. & R. Suit No. 5/6 of 2011. The present applicant has been served as per Order V Rule 20 of the Code of Civil Procedure by pasting suit summons on the address. But the applicant has stated that he was unaware of the present proceeding and he has got the knowledge of the proceeding when notice before Execution i.e. MARJI Application No.117 of 2013 was served upon him and also through one Jyoti Shah.
29. It is settled principle of law that rules of limitation are not meant to destroy rights of parties. Therefore, this Court think it proper to condone the delay of 2378 days in filing the present MARJI Application No.59 of 2019. The most important thing is that the said ex-parte decree passed on 22.12.2012 and TE & R Suit No.5/6 of 2011 filed on 03.01.2011 and at that time defendant No.1 namely Husauni Gulam Abbas Nulwala (In the Death ___Page No.5 of 8___ 10 June 2024 ::: Uploaded on - 13/06/2024 ::: Downloaded on - 23/06/2024 23:48:32 ::: Neeta Sawant 40-WP-4524-2023.docx-FC Certificate name is mentioned as "Huseni Salebhai Zaveri", and Learned Advocate for the applicant has submitted that this is the name of same person, who is expired) is expired on 25.09.1981 and defendant No.3 namely Nuruddin Gulam Hussein Rungwala is expired on 23.01.2005 means prior to filing of TE & Suit No.5/6 of 2011. Hence, it can be said the suit summons is served on above said dead persons as per Order V Rule 20 of the Code of Civil Procedure. Therefore, the service on defendant Nos,1 and 3 is not proper. This Court do found substance in the application. Hence, the delay has to be condoned and an opportunity should be given to the legal heirs of defendant Nos.1 and 3 for prosecuting the proceedings. On the basis of above said reasonings, this Court do not found substance in the reply and argument of the Learned Advocate for aforesaid respondents.
30. This Court do not think it proper to grant costs of the application only because of pandemic situation of Covid-19. In the facts and circumstances of the case and on the basis of above said reasonings, this Court answer point No.1 in the affirmative and in answer to point No.2, this Court pass the following order"
8. In my view, the Small Causes Court was not presented with any explanation for not filing the application within time. In absence of any explanation being pleaded, the Small Causes Court could not have exercised discretionary jurisdiction of condoning inordinate delay of 2378 days. Since the delay was inordinate, the same required proper explanation for condonation thereof. The Small Causes Court has thus committed a jurisdictional error in condoning the delay in absence of any explanation being pleaded in the application. In this regard, reliance by the learned counsel appearing for the Petitioner on the judgment of this Court in Municipal Corporation of Greater Mumbai Vs. Prabhawati Harkishandas Gehani and Ors.1 is apposite in which his lordship Justice A. M. Khanwilkar (as he then was) has held in para-13 as under:
13. The Counsel for the applicant would however, rely on the decision of the Apex Court in the case of State of Haryana v. Chandra Mani wherein the 1 2006(4)Mh.L.J. 103 ___Page No.6 of 8___ 10 June 2024 ::: Uploaded on - 13/06/2024 ::: Downloaded on - 23/06/2024 23:48:32 ::: Neeta Sawant 40-WP-4524-2023.docx-FC Apex Court has observed that the Court should take liberal view in so far as the application for condonation of delay filed on behalf of the Government department or public authority is concerned. This is so because the Government is an impersonal machinery and decisions are taken at slow pace and on refusing to condone such delay effect is on the public interest.
Reliance is also placed on another decision of the Apex Court in the case of Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma which has reiterated the above legal position stated in the State of Haryana (supra). Indeed, there is no difficulty in accepting the submission that the Court should take a lenient attitude in so far as the application for condonation of delay filed on behalf of the State or Public Authorities. However, in the present case, as mentioned earlier, "no explanation at all" has been offered with regard to what prevented the applicants from making application for obtaining certified copy within limitation period. Similar situation was considered by the Division Bench of our High Court in the case which is pressed into service on behalf of the respondent in the case of J.K. Kapur (supra). The Division Bench rejected the application preferred by the appellant in the said case. I am conscious of the fact that in that matter the appellant was a private party and not Government body or Corporation as in the present case. Nonetheless, even if it were to be State or Public authority or statutory body, it is only when some explanation is offered, the Court can be called upon to take a lenient view of the matter. However, if "no explanation at all" is offered, the application, as in the present case, will have to face the consequence of rejection on that ground. This is so because the application without any explanation at all will be no application in the eye of Law; for it being bereft of jurisdictional facts. Thus understood, exercising powers under Section 5 of the Limitation Act in such a case will be jurisdictional error. In the present case, the application is devoid of any information or explanation even in regard to the period posterior to obtaining certified copy till the filing of this application, which is also unusually long. Moreover, even when the respondents filed reply affidavit which was served on the applicant as back as in October, 2005, taking specific stand that no explanation at all has been offered, no attempt has been made by the applicant to file rejoinder, and bring on record relevant jurisdictional facts. It needs to be mentioned that today by separate order, in the case of this very applicant, I have allowed other applications where explanation was offered.
(emphasis and underlining supplied)
9. In my view, the Small Causes Court has committed grave jurisdictional error in condoning inordinate delay of 2378 days in absence of any explanation being pleaded. The error is compounded by citing the reason ___Page No.7 of 8___ 10 June 2024 ::: Uploaded on - 13/06/2024 ::: Downloaded on - 23/06/2024 23:48:32 ::: Neeta Sawant 40-WP-4524-2023.docx-FC of death of Defendant Nos.1 and 3, whose heirs had not even sought condonation of delay in filing application for setting aside ex-parte decree qua Defendant No.2 (Respondent No.1). Respondent No. 1 had acquired knowledge about the decree sometime in the year 2014. He cannot rely upon death of other Defendants before filing of the suit for seeking condonation of his own delay in filing application for setting aside the ex-parte decree. Condonation of delay by the Small Causes Court is thus premised on extraneous considerations, instead of considering the averments of the application. Since the order passed by the Small Causes Court suffers from jurisdictional error, the same is indefensible.
10. The Writ Petition accordingly succeeds. The order dated 31 March 2022 passed by the Small Causes Court in MARJI Application No. 59 of 2019 is set aside and MARJI Application No. 59 of 2019 stands dismissed.
11. With the above observations, the Writ Petition is allowed and disposed of. Rule is made absolute. No costs.
[SANDEEP V. MARNE, J.] NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2024.06.13 22:02:37 +0530 ___Page No.8 of 8___ 10 June 2024 ::: Uploaded on - 13/06/2024 ::: Downloaded on - 23/06/2024 23:48:32 :::