Shri Bhimrao Pundalik Bhalerao vs The United Western Bank Ltd

                                1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                
                       BENCH AT AURANGABAD.




                                        
         CIVIL REVISION APPLICATION No. 1402 OF 2001




                                       
    Shri Bhimrao Pundalik Bhalerao,
    Age 47 years, Occu. Service,
    Head Post Office, Mail Overcier,
    Bhusawal, Tq. Bhusawal,
    Dist. Jalgaon.                              ...APPLICANT




                              
                    ig        VERSUS
                  
    The United Western Bank Ltd.,
    Body Corporate, ( Now IDBI Bank)
    Branch Chopada, Tq. Chopada,
    Dist. Jalgaon.                              ..RESPONDENT
      

                              ...
   



                        ...
    Mr.B.A. Agrawal, Advocate h/f Adv.              R.R.       Mantri,
    Advocate for applicant
    Mr.S.V. Advant, Advocate for respondent





                             CORAM :- S.S. SHINDE, J.

             JUDGEMENT RESERVED ON     : 5th October, 2010
          JUDGMENT PRONOUNCED ON       : 13th October, 2010





    JUDGMENT:

Rule, Rule made returnable forthwith. Heard finally with the consent of parties.

2. The Civil Revision application takes exception to the order dated 3rd December, 2001 by Civil Judge Senior Division, Amalner, in Misc.

Application No. 3 of 1999.

3. The Civil Revision applicant herein fled Misc. Application No. 3 of 1999 before Civil Judge Senior Division, Amalner, under Order 9Rule 13 of the Civil Procedure ig Code. The respondent herein filed Civil Suit NO. 2 of 1997 against the applicant for recovery of Rs. 30,983/- (Rs. Thirty thousand nine hundred eight three). The applicant herein appeared in the suit but could not file Written Statement. When the case was fixed for final hearing, applicant's Counsel was absent, as he has to appear before the Court of Civil Judge Junior Division, Chopada. It is further case of the applicant that the letter issued by his Advocate, could not received by him in due course, because the applicant was performing his duty at some other village. As a result, the suit was decided exparte on 18th December, 1998. As the applicant could not appeared in Special Civil Suit No. 2 of 1997, the suit was decided exparte. Therefore, Misc. Application was filed by the applicant herein ::: Downloaded on - 09/06/2013 16:32:13 ::: 3 for setting aside the exparte decree.

4. The respondent herein who is original opponent had no objection to restore the Special Civil Suit No. 2 of 1997.

5. The learned Judge has recorded the evidence of the applicant. In support of his case, applicant examined himself, ig his evidence was recorded below (Exh. 22). In the said statement he stated that he had not filed any Written Statement in the suit. The suit was fixed for final hearing, he was residing at Chopada. The Counsel appearing on behalf of applicant told him that he will informed the applicant, whenever required. The applicant was transferred to Bhusawal, and therefore, he could not appear before the court.

Hence, the suit was decided against him exparte on 18th December, 1999. Therefore, he prayed that suit may be restored to its original file.

6. The learned Judge after hearing the applicant and original opponent rejected the application for setting aside exparte decree. Hence, this Civil Revision Application.

7. The learned Counsel for the applicant submitted that inspite of express consent given by the respondent to set aside the exparte decree, Trial Court exceeded its jurisdiction vested in its by refusing to setting aside the exparte decree. It is further submitted that Trial Court acted illegally and with material irregularity in exercise of its jurisdiction, in that the provisions of Order VI Rule 12(2) (a) had no bearing in facts of the present case.

The findings are capricious and arbitrary and perverse. If the impugned order allowed to stand, could occasioned grave mis-carriage of justice and would cause undue hardship to the applicant. The learned Counsel also invited my attention to the grounds taken in the application, and also other documents placed on record.

8. The learned Counsel appearing for respondent, vehemently opposed the application and submitted that in view of Order 43 Rule 1 (d) of Civil Procedure Code, the present Civil Revision Application is not maintainable.

9. I have carefully perused the Civil Revision Application, along with its annexures, and also the provisions of the Civil Procedure Code. It is not in dispute that the application filed by the applicant under Order IX Rule 13 of the Civil Procedure Code.

The Trial Court in para NO. 5 has considered the application of the applicant and taking recourse to order VI Rule 14(a) (2) of the Civil Procedure Code held that it was the duty of the applicant to file fresh memo of address, as it required under Order VI Rule 14(a) (2) of the Civil Procedure Code. Therefore, in absence of such steps, it is not possible to entertain application and further observed that there is mistake on the part of the applicant, because of which he could not appeared before the Court and which is not reasonable excuse to condone such a conduct.

10. Without entering into the aspect of maintainability of Civil Revision Application, I propose to dispose of the application on its merits itself. Since the Rule is issued on the Civil Revision Application, by this Court in 2001, now telling the applicant to file some other proceedings, after 10 years would cause great hardship to the applicant.

That apart the assignment of hearing the Civil Revision Application and also Appeal From Order is with this Court, and therefore, it is desirable to decide the matter on its own merits.

"[Rule 14A. Address for Service of notice :- (1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in rule 14, regarding the address of the pary.

(2) such address may, from time to time, be changed by lodging in Court a form duly filled up and stating a new address of the party and accompanied by a verified petition."

11. The perusal of Sub Rule 2 of Rule 14(a) would make it clear that every pleadings, when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in Rule 14, regarding address of the party. Sub Rule (2) further provided that such address may, from time to time, be changed by lodging in Court a from duly filled up and stating the new address of the party and accompanied ::: Downloaded on - 09/06/2013 16:32:13 ::: 7 by a verified petition. The Sub Rule (3) provides that address furnished in the statement made under sub-rule (1) shall be called as "registered address" of the party, and shall, until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit, and shall hold good as aforesaid, for a period of two years after the final determination of the cause or matter.

A careful reading of Rule 14(a) would clearly spell out that it is for the party to furnish the new address if any by lodging in Court a form duly filled up and stating therein new address of the party.

12. Therefore, the provisions are very clear and there is no any scope to infer that the applicant was not obliged to give his changed address to the Court, either himself or though his pleader, in the manner stated in sub rule 2 of Rule 14(a) of Order VI.

Therefore, the Trial Court has rightly addressed the issue and concluded that it was for the applicant to furnish such address. Therefore, there is no substance in the Civil Revision Application. That apart the decree passed by the Court below was money decree and ::: Downloaded on - 09/06/2013 16:32:13 ::: 8 interference in such decree, unless very strong case is made out would be frustrating the claim of the opponents.

13. Therefore, taking over all view of the matter and taking into consideration scope of the revision, no case is made out for interference. Hence, Civil Revision Application stands dismissed. Rule discharged.

Original record if any be sent back to the concerned Court.

In view of the dismissal of the Civil Revision Application, Civil Application, if any stands disposed of accordingly.

[S.S. SHINDE, J] SDM*1402.10CRA ::: Downloaded on - 09/06/2013 16:32:13 :::