Bombay High Court
Bharat Babulal Makwana vs Narottam V. Sheth on 25 September, 2014
Author: Revati Mohite Dere
Bench: S.J. Vazifdar, Revati Mohite Dere
app.319.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 319 OF 2014
FROM
NOTICE OF MOTION NO. 1282 OF 2013
FROM
SUIT NO. 3969 OF 1996
1. Bharat Babulal Makwana
2. Suresh Babulal Makwana
(Deceased)
3. Raju Babulal Makwana
Both adults, Indian Inhabitant,
residing at Sahyadri Cottage No.1,
Room No.19/20, Natwarnagar,
Road No.5, Jogeshwari (East),
Bombay 400 060 and Occupation
Carrying on business in the name
and style of M/s. Babulal & Brothers
situated at 104, Kopargaon Estate,
Love Lane, Mazgaon, Mumbai 400 010 ... Appellants
(Ori.Defendants)
Versus
1. Narottam V. Sheth
2. Divyesh Narottam Sheth,
Both adults, Indian Inhabitant,
residing at 146-A, Jain Society, Sion,
Mumbai 400 022 and Occupation -
Carrying on business at C/o C.K. Industries,
Shed No.5, at 104, Kopargaon Estate,
Love Lane, Mazgaon, Mumbai - 400 010 ... Respondents
(Ori.Plaintiffs)
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app.319.14.doc
Mr. M. Khandeparkar for the Appellant
Mr. Bhave for the Respondents
CORAM : S.J. VAZIFDAR &
REVATI MOHITE DERE, JJ.
ORDER RESERVED ON : 9th SEPTEMBER, 2014
ORDER PRONOUNCED ON : 25th SEPTEMBER, 2014
JUDGMENT (Per Revati Mohite Dere, J.) :
1. This appeal is directed against the order of the learned Single Judge, allowing the respondents' notice of motion, by condoning the delay and restoring the suit, which was dismissed for default.
2. The principal grievance raised by the appellant is that the learned Single Judge had no jurisdiction to entertain the notice of motion and pass the impugned order thereon. According to the appellant, the respondent ought to have filed the Notice of Motion in the Bombay City Civil Court in view of the Section 4A of the Bombay City Civil Court (Amendment) Act, 2012 and the Notification dated 5th September, 2012. The appellants have also challenged the exercise of jurisdiction by the learned Judge in restoring the suit which had been dismissed for default.
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3. The suit was filed by Smt. Rasikmani Narottam Sheth -
original plaintiff seeking damages and other consequential reliefs of injunction in the year 1996. The original plaintiff died on 11 th September, 2012. On 25th June, 2003, the suit was placed for directions before the Prothonotary and Senior Master. As there was no appearance for the plaintiff, the suit was placed for dismissal after a week. The matter was again placed on 2 nd July, 2003 for directions before the Prothonotary and Senior Master. On the said date too, there was no appearance for the plaintiff. Hence, the Prothonotary and Senior Master dismissed the suit for default vide order dated 2 nd July, 2003.
4. It was contended by the respondents in the affidavit in support of the notice of motion seeking restoration of the suit that they diligently took steps to contact Smt. Rasikmani Sheth's Advocate, but were unsuccessful and learnt that the Advocate had left practice and therefore, they approached the present advocates on 2nd April, 2013 and briefed them about the aforesaid facts. It was stated that, thereafter, the Advocates perused the records and learnt that the suit SQPathan 3/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc was dismissed for default vide order dated 2 nd July, 2003 by the Prothonotary and Senior Master. Accordingly, the respondents on being made aware of the order dated 2nd July, 2003 immediately applied for a certified copy of the said order and filed the Notice of Motion along with an affidavit in support thereof, seeking condonation of delay and restoration of the suit.
5. We are inclined to accept the respondents' contention that they were under a bonafide belief that the suit was pending. In fact, even the appellants were under this impression. In the above suit, Notice of Motion No. 3341 of 1996 was taken out by the original plaintiff seeking certain reliefs therein. Vide order dated 15 th July, 1998, the appellants/defendants were directed to pay compensation of Rs.3,000/- per month from 20th February, 1996 till the date of the order and also subsequent thereto. This is evidenced by the fact that the appellants/defendants had continued to pay the rent to the respondents at the rate of Rs. 3,000/- per month as per the order dated 15 th July, 1998. Had the appellants been aware about the dismissal of the suit, they would never have continued making the payments. The delay SQPathan 4/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc was due to inadvertence, as the respondents were unaware about the status of the suit. The learned Judge, therefore, rightly condoned the delay of 3699 days in taking out the notice of motion and setting aside the order of dismissal for default.
6. It may be noted that along with the aforesaid Notice of Motion seeking restoration of the suit, the respondents had also preferred a Chamber Summons to bring on record the heirs of the original plaintiff, who had expired and the learned Single Judge after restoring the suit, also allowed the Chamber Summons and permitted the respondents to be brought on record as heirs of the original plaintiff.
7. When the impugned order dated 7th February, 2014 was passed, the defendant No.1 i.e. the present appellant was present in-
person.
8. Mr. Khandeparkar, learned Counsel for the appellant has impugned in this appeal only the order dated 7 th February, 2014, condoning the delay and restoring the suit. He submitted that the SQPathan 5/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc learned Single Judge had no jurisdiction to entertain the said Notice of Motion in view of the Notification dated 5th September, 2012 and Rule 4A of the Bombay City Civil Court (Amendment) Act, 2012. He submitted that the High Court, in exercise of the powers under Section 4B of the Bombay City Civil Court Act, 1948 (`the Act'), had made Rules to regulate and carry out the transfer of the suits to the City Civil Court, Greater Bombay, which rules were published vide Notification dated 5th September, 2012. He submitted that under Section 4A of the Bombay City Civil Court Act, 1948, all suits and proceedings cognizable by the said Court under Section 3, and pending in the High Court on the date of coming into force of Section 4 of the Act, except those falling under clauses (a) to (d) of Section 3, shall stand transferred to the City Court and that the suit or proceedings so transferred, shall be heard and disposed of by that court, as if it had been originally instituted in that Court. According to Mr. Khandeparkar, the present proceedings would squarely be covered under Section 4A of the said Act and thus an application, if any, for restoration, would have to be made before the City Civil Court in view of Section 4A (1) and (2) of the said Act. The learned Counsel further SQPathan 6/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc contends that the Notice of Motion seeking restoration of the suit, would be a proceeding and thus, being a proceeding, would have to be filed in the City Civil Court and it is that Court, which will have jurisdiction to consider the same.
9. The relevant provisions of law are set out as under:
An amendment was introduced in 2012 to the `Bombay City Civil Court Act, 1948, by which, amongst other things, the pecuniary jurisdiction of the City Civil Court was raised from 50 lakhs to 1 crore. Sections 4A and 4B of the Bombay City Civil Court (Amendment) Act, 2012 read as under:
"4A. Transfer of suits and proceedings cognizable under section 3, to City Court].- (1) Notwithstanding anything contained in section 9 of the Bombay City Civil Court and the Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986, all suits and proceedings cognizable by the City Court under section 3, and pending in the High Court on the date of coming into force of section 4 of the Bombay City Civil Court (Amendment) Act, 2012, not being suits or proceedings falling under clauses (a) to (d) of section 3, shall stand transferred to the City Court.
(2) Any suit or proceeding so transferred shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction in respect thereof as if it had been originally instituted in that Court.SQPathan 7/15 ::: Downloaded on - 26/09/2014 23:49:16 :::
app.319.14.doc (3) In any such suit or proceeding institution fees shall be paid, credit being given to any court fee levied in the High Court and cost incurred in the High Court till the date of transfer shall be assessed by the City Court in such manner as the State Government may, after consultation with the High Court, determine by rules.
4B. Power to make rules.- The High Court may, by notification in the Official Gazette, make rules for carrying out the purposes or this Act."
10. Pursuant to the powers granted to the High Court under Section 4B of the said Act, this Court framed rules to regulate and carry out transfer of suits from the High Court to the Bombay City Civil Court. The said rules came into force vide Notification dated 5th September, 2012. The Rules were called the Bombay City Civil Court (Transfer of Suits) Rules, 2012. The said Rules were deemed to come into force on the day on which the provisions of Section 4 of the Bombay City Civil Court (Amendment) Act, 2012 came into force.
Sub-clause (c) of Rule 1 of the said Notification states that the rules shall apply to all the suits and proceedings which stand transferred to the Bombay City Civil Court by virtue of the provisions of sub-section (1) Section 4A of the said Act. Under Rule 3 of the said Notification, all suits and/or proceedings, which were liable to be transferred to the City Civil Court, under sub-section (1) of Section 4A of the Act, shall SQPathan 8/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc stand transferred to the Principal Seat of the Bombay City Civil Court, Old Secretariat, Bombay, with effect from the date on which Section 4 of the Amending Act, came into force. The City Civil Court was to have all the powers and jurisdiction in respect thereof as if it had been originally instituted in that Court. Rule 4 stipulated that the Prothonotary and Senior Master, Original Side of the Bombay High Court shall cause a scrutiny to be done of the suits and proceedings which stand transferred to the City Civil Court by virtue of the provisions of sub-section (1) of Section 4A of the Act. Under the said Rule, the Prothonotary and Senior Master was under an obligation to publish a list of such suits and proceedings on the Notice Board and on the official website of the High Court calling upon the Advocates and parties to raise objections, if any, relating to the transfer of a suit and/or proceeding on account of its pecuniary valuation or otherwise, arising out of an accidental slip or omission and/or clerical/typographical error. In case of any such objection received, the matter was to be placed before the High Court for directions. If no objections were received within a period of two weeks, the suit and/or proceedings was to be transmitted to the City Civil Court notifying the SQPathan 9/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc date and the Court to which the matter was assigned, in the City Civil Court. Under Rule 5, all suits and/or proceedings which stood transferred, were to be re-registered in the City Civil Court, Greater Bombay in accordance with the year in which the suits or proceedings were originally registered and in case no registration number was given, then according to the date of presentation in the High Court.
Under the proviso to this rule, in addition to the new number, the old registration number of the suit and/or proceeding so transferred was to continue to be displayed.
ig Under Rule 7, all the suits and/or proceedings so transferred were to be heard and disposed of at the Principal Seat of the Bombay City Civil Court, provided, however, this shall not be in derogation of the powers of the Principal Judge under Section 7(c) of the Act.
Pursuant to the said Notification dated 5th September, 2012, a notice was published by the Prothonotary and Senior Master on 14th September, 2012, informing the Advocates and parties appearing in-person that by virtue of the Sections 4 and 6 of the Bombay City Civil Court (Amendment) Act, 2012 read with the Government Notification No. CCS. 2911/CR58/D.19 dated 28 th SQPathan 10/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc August, 2012 and the Bombay City Civil Court (Transfer for Suits) Rules, 2012, certain suits not exceeding Rs. 1 crore in value, shall be transferred to the Bombay City Civil Court, `with effect from 1st October, 2012'.
11. Pursuant to the provisions of the Bombay City Civil Court (Amending) Act, 1948 and the rules framed thereunder by this Court vide Notification dated 5th September, 2012, all suits and proceedings which were covered under the said Notification and pending, came to be transferred after the same were duly notified.
12. In the present case, the suit itself was dismissed for default vide order dated 2nd July, 2003 and therefore, there was no question of notifying the suit and consequently, transferring the same, inasmuch as, there was nothing pending on the file of this Court as on 1 st October, 2012. Thus, unless and until, the suit was restored to file, there was no question of notifying and transferring the same to the City Civil Court.
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13. Mr. Khandeparkar's contention that the Notice of Motion seeking restoration of the suit, ought to have been filed in the City Court, is completely misconceived, inasmuch as, there was nothing to be transferred as on 1st October, 2012 in view of the dismissal of the suit for default. As Mr. Bhave rightly contended, it is only on the Notice of Motion being allowed and the proceedings being restored that the proceedings could be transferred as contemplated under Section 4A. In view of the dismissal of the suit for default, there were no proceedings which were pending in this Court and the question of transferring non-existing proceedings therefore cannot arise. Section 4A (1) and (2) will have no application to the facts of the present case.
An application for restoration would necessarily, therefore, have to be filed in the same Court, which dismissed the suit. As also rightly contended by Mr. Bhave what is pertinent and crucial is that there was nothing pending in the City Civil Court on the date when the Notice of Motion was filed and therefore, any application filed in the City Civil Court was meaningless, as there were no proceedings pending there.
The suit, only upon being restored, could be said to be pending and SQPathan 12/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc thereafter, would be liable to be transferred to the City Civil Court. In fact, when the Notice of Motion was taken out for restoration of the suit, by no stretch of imagination, could it be said that the proceeding was "pending" inasmuch as unless the suit was restored, the proceedings could not be labelled as pending. Therefore, the restoration of the suit would have to be necessarily done by the same Court which had dismissed the suit and thereafter, the suit would be liable to be transferred in accordance with the Notification dated 5 th September, 2012. The Notice of Motion could never have been taken out in the City Civil Court directly, as there was no suit which was notified, transferred or pending in the City Civil Court, as on that date, in view of the dismissal of the suit in this Court in 2003. The Notice of Motion, therefore, could legitimately be taken out only in this Court for restoration of the proceedings i.e. the suit. Undoubtedly, it is this Court alone which had jurisdiction to restore the suit and thus the notice of motion was rightly taken out in this Court.
14. Mr. Khandeparkar's submission is contrary to the plain language of Section 4A. Section 4A contemplates transfer of all suits SQPathan 13/15 ::: Downloaded on - 26/09/2014 23:49:16 ::: app.319.14.doc and proceedings "pending in the High Court on the date of coming into force of Section 4 of the Bombay City Civil Court (Amendment) Act, 2012". Neither the suit nor the notice of motion for restoration were pending on the date on which Section 4 had come into force.
Thus, Section 4A did not operate in respect of the above proceedings till the above suit was restored.
15. The second grievance raised by Mr. Khandeparkar, that the impugned order dated 7th February, 2014, records a delay of 699 days, whereas, the delay is of 3699 days, is without any substance.
The said discrepancy clearly appears to be a typographical mistake, inasmuch as, prayer clause (a) of the Notice of Motion clearly states that the delay of 3699 days be condoned and the learned Judge has made the Notice of Motion absolute in terms of prayer clause (a).
Thus, that there is no infirmity in the impugned order dated 7th February, 2014 condoning the delay and restoring the suit.
The learned Judge has rightly in the interest of justice, exercised his discretion and hence no interference is warranted with the same.
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16. The appeal is accordingly dismissed.
REVATI MOHITE DERE, J. S.J. VAZIFDAR, J.
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