Bombay High Court
Ratilal Son Of Jivanbhai Lalji vs A) Kuvarben Wd/O. Chabildas Patel on 10 November, 2008
Equivalent citations: 2008 (6) AIR BOM R 723, 2009 A I H C 1140
Author: Anoop V. Mohta
Bench: Anoop V.Mohta
dgm
gm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7027 OF 2008
Ratilal son of Jivanbhai Lalji ...Petitioner
Vs.
1(a) Kuvarben wd/o. Chabildas Patel
& others. ...Respondents.
Shri M.P. Vashi for the Petitioner.
Shri Pratap N. Shukla for the Respondents.
CORAM : ANOOP V.MOHTA, J.
DATED : 10th November, 2008.
JUDGMENT:
Heard finally by consent.
2. The petitioner/tenant has challenged the exparte
judgment and decree dated 1.7.2003 passed in RAE & R
Suit No.1633/5893 of 1978 and the judgment and order
in Appeal No.104 of 2005 dated 29.08.2008. The respondents are the legal heirs of deceased Chabildas Patel, the owner of a chawl having about 27 rooms, known as Chabildas Chawl, Teli Galli Cross Lane, Andheri (East), Mumbai-69. The suit room is a single room tenement admeasuring about 10'x10' and the rent of the premises is Rs.19/- exclusive of the permitted increases.
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3. A notice of demand dated 26.09.1978 was issued as the petitioner was in arrears of rent for more than 112 months. Therefore a Suit in question was filed for eviction in the Small Causes Court at Mumbai. The original plaintiff and the defendants expired during the proceedings. Therefore, the respective heirs are proceeding with the matter. A written statement, as well as, an additional written statement are filed.
On 10.11.1995 issues are framed.
4. The petitioner was operated because of eye infection in the year 1999. His health was also deteriorating and could not attend the court and contact his Advocate. He was not aware of the progress of the Suit. The petitioner has no telephone at his residence. There was no contact during this period even with his Advocate. He also could not go and contact his Advocate for want of intimation.
5. As the petitioner/defendant remained absent and as there was no cross-examination of the plaintiff, the trial Court at Bombay, based upon the examination-in-chief on affidavit and documents produced on record by the plaintiff, proceeded under ::: Downloaded on - 09/06/2013 14:02:46 ::: ( 3 ) Order XVII, Rule 2 of C.P.C. and passed exparte decree of eviction of the premises.
6. On 24.06.2004 the bailiff tried to serve the execution notice which was refused by the wife as she was not aware of any proceeding. The petitioner, therefore, as instructed orally, visited the court at Bandra on 30.06.2004 and waived the service of the notice and appeared through his Advocate. As the next date was 13.07.2004 and as the petitioner had misplaced application the paper of Suit, on his request, made for certified copy of the proceeding an through Advocate's clerk on 2.7.2004.
7. The exparte decree was passed by the Small Causes Court, Bombay wherein the notice of execution was made returnable in Small Causes Court at Bandra. The petitioner appeared at Small Causes Court at Bandra and applied for certified copy as referred above. A copy of exparte judgment and decree was annexed with the said notice and, therefore, came to know about the date of exparte decree. Page Nos. 4 and 5 of the said judgment were missing. In the meantime, the application for notice before execution was heard on 5.02.2005 and dismissed on merits on 22.2.2005.
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8. The petitioner and respondents 2 and 3 on 21.02.2005 awaiting for certified copy of the exparte decree and proceedings filed an application under Order IX, Rule 13 with prayer for condonation of delay to set aside the exparte decree passed on 01.07.2003 on the foundation that he came to know about the decree only on 30.06.2004. The respondent/landlord opposed by reply dated 21.03.2005 setting aside application. The petitioner has filed rejoinder dated 02.04.2005.
order
The learned Judge at Bandra
dated 03.05.2005 dismissed the application Court by for setting aside exparte decree on the ground of delay only.
9. Importantly, the petitioner has averred in Interim Notice No.287/2005 at Bandra Bench also as under:
"10. I say that since the judgment was delivered by the Hon'ble Judge, Shri Dhanapube in Court Room No.24 at Bombay branch, the papers were sent to Bombay. Hence, my application was also sent to Bombay. Then the application was sent back from Bombay along with the papers but I have yet not received the certified copies of the proceedings. I say that only from the copy of the notice before execution, since the copy of the judgement was annexed, I came to know exactly about the date of the ex-parte decree. Even in the judgment copy supplied by the plaintiff, page Nos. 4 and 5 are not supplied. I have to yet got the certified ::: Downloaded on - 09/06/2013 14:02:46 ::: ( 5 ) copies of all the papers of the suit. Hence, there is a delay in filing this application for setting aside the ex-parte decree dated 1.7.2003.
11. I say that I have already made an application before the Slum Authority for getting the certified copy of the gazette notification since the area where the suit premises is situated is declared as slum. I have yet not received the certified copy of the same.
12. I say that since I did not get the certified copies of the proceedings, though I came to know about the ex-parte decree dated 1.7.2003 on 30.6.2004, I could not file an application for setting aside the ex-parte decree immediately because of the lack of all the papers of the suit."
10. Appeal No.104/2005 preferred by the petitioner against the aforesaid order was admitted and interim stay was granted initially. However, later on by a judgement dated 29.08.2008 the same was dismissed.
11. The issues in the present case are, whether the petitioner/defendant has shown sufficient cause to set aside the exparte judgment and decree and; has shown reasonable and sufficient cause to condone the delay in filing an application for setting aside exparte decree.
12. In the present case, the father of the petitioner was attending the matter. The Suit was filed in the ::: Downloaded on - 09/06/2013 14:02:46 ::: ( 6 ) Small Causes Court at Bombay. The matter pertaining to the suburb were transferred to Brandra Bench of Small Causes Court, at Bandra. The exparte decree was passed in Bombay Court, while the notice of execution was issued by the Bandra Court. The application for certified copy was filed at Bandra Court which, as averred, was sent to Bombay Court as the proceedings were at Bombay. There was no contact number/telephone in the premises of the petitioner. There was no communication whatsoever received from the Advocate.
The Advocate
petitioner.
The
was also
petitioner
unable
has
to
filed
contact
additional
the
written statement in the year 1994, but thereafter
there was no communication received by the petitioner.
There is nothing on record to show that even the affidavit of examination in chief filed by the plaintiff even in the year 2003 was served or received by the petitioner. At least the petitioner personally had no knowledge of the same. Apart from the cross-examination though there is affidavit filed by the plaintiff, the petitioner/defendant still could have contested the matter by his own affidavit in support of his written statement. The fact remained and as recorded by both the courts below that the defendant remained absent and there was no ::: Downloaded on - 09/06/2013 14:02:46 ::: ( 7 ) cross-examination and as no evidence led on behalf of the defendant and, therefore, proceeded under Order XVII, Rule 2 of C.P.C. and passed the decree of possession. Therefore, the petitioner is facing the exparte eviction decree for want of clear intimation and knowledge about the proceedings. There is nothing on record to justify whether there was any intimation sent or received by the petitioner even after the filing of affidavit of examination in chief by the plaintiff. The matter was pending since 1978 and 1994, lastly amended written statement was filed in the year in absence of any communication and in view of the above transfer / shifting of courts, I see no reason that the petitioner should not get opportunity to contest the matter on merits. It cannot be said that the petitioner was totally in gross negligence and there was intention to delay the proceedings in all respects specially when the petitioner's father had filed written statement initially and later on additional written statement by the petitioner apart from the standard rent application. There is definitely some negligence as the petitioner should have been in contact with his Advocate, but still there is also no material to justify that any intimation or even copy of affidavit of examination in ::: Downloaded on - 09/06/2013 14:02:46 ::: ( 8 ) chief was not received at the relevant time. The fact that office bearers of Tenants Association were attending the proceeding on behalf of other tenants as averred in the petition, still for the respective cross-examination and to lead evidence is a matter concerning the petitioner/tenant. I see there is no reason to discard the submission and the case as raised by the petitioner to condone the delay in the matter.
13.
certified
The fact
copy
ig remained that though
in 2004 still the petitioner did applied for not receive the certified copy. Therefore, for want of certified copy of exparte judgment and decree, as well as the other proceedings, though the present application to set aside the exparte decree was filed based upon the copy received along with the notice of execution as executing Court proceeded with the matter, in my view, this causes great injustice and hardship to the petitioner/tenant. The circumstances, therefore, has compelled him to file this application even without certified copy of the exparte judgment and decree and other proceedings, that itself an additional factor to consider the case for condoning the delay and setting aside the exparte decree as ::: Downloaded on - 09/06/2013 14:02:46 ::: ( 9 ) passed.
14. Another facet that the present proceeding was initiated on the ground of arrears of rent. The reason for that could have been contested or explained by the petitioners/tenants. They are residing in the suit premises for more than 50 years and suffering illness continuously and now even by the petitioner.
The tenants of such chawl apart from being poor cannot afford to be negligent in not contesting such eviction Suit only on the ground of arrears of rent.
15. There is nothing on record to show that the notices of transfers of matters from Small Causes Court, Greater Bombay to Bandra Bench were issued or intimated to the parties. The general notice even to the Advocate, if any, but want of such intimation to the petitioner would definitely cause great prejudice and injustice to the person like the petitioner. The petitioner, as noted, received the notice of execution from Bandra Bench of Small Causes Court whereas admittedly the Suit was filed in Small Causes Court at Bombay. The non-communication of transfer of matters from one Court to another and further proceeding and no communication from the Advocate, in my view, if ::: Downloaded on - 09/06/2013 14:02:46 ::: ( 10 ) causes injustice and results into such exparte decree of eviction need to be considered as a sufficient ground/reason to condone the delay and to set aside the exparte decree in the interest of justice. In such cases, it is difficult to expect the explanation of day-by-day or month-by-month or year-by-year delays in the present case on both counts even before the passing of exparte decree, as well as, after passing of exparte decree. Therefore, the limitation of 30 days from the date of decree and/or from the date of knowledge circumstances of ig of decree, the in case, the as present contemplated facts and under Article 123 of the Limitation Act, 1963 need to be considered in favour of the petitioner. ( AIR 2001 S.C. 2497 - M.K.Prasad v. P. Arumugam; AIR 1987 SC 1353- Collector, Land Acquisition, Anantnag & anr.
v.Mst. Katiji & ors. and 2008 (1) SCC 358-Mahabir
Singh v. Subhash & ors.).
ors.)
16. In view of above facts and circumstances of the
case to sub-serve the ends of justice, I am inclined
to take liberal approach in the present matter as,
according to me, the petitioner has shown sufficient
cause and as absence and delay was not malafide and
intentional.
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17. In view of above, the writ petition is allowed in terms of prayer (a) which reads thus:
(a) That a writ of certiorari, writ of mandamus or any other appropriate writ, order or direction be issued calling for the records, and after examining the proprieties and legalities of the order dated 1-7-2003 passed in RAE & R Suit No.1633/5893 of 1978 and judgment confirmed in Appeal No.104 of 2005 dated 29-08-2008, be pleased vide to quash and set aside both the judgements and orders.
18. It is material to record the observations of the Apex Court in Lal Devi & anr. vs. Vaneeta Jain & ors., (2007) 7 SCC 200:
"16. We are not delving into the technicalities of the legal questions argued before us because we are of the view that in the facts of this case the interest of justice demands that the ex parte decree be set aside,. We appreciate that the learned District Judge could not entertain an application under Order 9 Rule CPC, and even the application under Order 9 Rule 13 was dismissed as not pressed. But nothing prevented the High Court from setting aside the ex parte decree in the appeal preferred against it.::: Downloaded on - 09/06/2013 14:02:46 :::
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18. We have no doubt that the courts are not helpless. When parties adopt unfair or delaying tactics the courts have abundant powers to deal with such situations. We direct the court of District Judge who shall try the suit to proceed with utmost expedition so as to conclude the suit within a period of six months from the date on which the parties appear before him. He shall not grant adjournment unless it becomes absolutely necessary. To the extent possible he shall proceed with day-to-day hearing of the suit."
19. However, the petition is allowed subject to costs of Rs.10,000/- (Rupees Ten thousand only) to be paid to the condition plaintiff/landlord precedent within for setting aside two weeks the as impugned a orders.
20. The Suit be disposed of on day to day basis, by giving full opportunity to the parties, preferably within six months.
. No costs.
( ANOOP V. MOHTA, J.)
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