1 wp6838.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6838 OF 2014
Smt. Shailaja w/o Arvind Mahajan,
Aged about 50 years,
V.H.P. Colony, Giripeth, Nagpur. .... PETITIONER
VERSUS
Shri Pawan s/o Devendra Verma,
Aged about - Major,
R/o 13, Tilak Nagar, Nagpur. .... RESPONDENT
______________________________________________________________
Shri Anjan De, Advocate for the petitioner,
Shri R.M. Bhangde, Advocate for the respnodent.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 4 AUGUST, 2016.
th ORAL JUDGMENT :
Heard Shri Anjan De, Advocate for the petitioner-original plaintiff and Shri R.M. Bhangde, Advocate for the respondent-original defendant.
2. Rule. Rule made returnable forthwith.
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3. The plaintiff has filed civil suit under Section 6 of the Specific Relief Act. In the midst of the trial, the civil suit was transferred from one Court to another Court. The Court to which the civil suit was transferred proceeded, the defendant did not appear and after the arguments of the plaintiff were heard, the matter was closed for judgment. At this stage, the learned trial Judge passed an order on 06-09-2014 recording that on going through the record it is revealed that the defendant is reported to be dead and his legal representatives are brought on record, however, notice of civil suit was not issued to them and therefore, notice be issued to the legal representatives of the defendant. After this order was passed, on the same day i.e. 06-09-2014, the Advocate representing the plaintiff pointed out to the learned trial Judge that the legal representatives had appeared in the civil suit and Vakalatnama of their lawyer was also shown to the Court and it was pointed out that the legal representatives had filed their written statement. Still the learned trial Judge had not recalled the order dated 06-09-2014 and recorded that as after the transfer of the suit to his Court, notices were not issued, it would be appropriate to issue notice to the defendant. The plaintiff filed an application (Exhibit No.65) praying that the order passed on 06-09-2014 be recalled. The learned trial Judge has dismissed this application by the ::: Uploaded on - 08/08/2016 ::: Downloaded on - 09/08/2016 00:14:40 ::: 3 wp6838.14 impugned order.
4. The submission on behalf of the plaintiff is that once the stage of hearing/arguments is over, the trial Court becomes functus officio and it has no jurisdiction to pass any order specially like the one which is challenged in this petition. The provisions of Order XVII Rule 2 and Order IX Rule 6 and Rule 7 of the Code of Civil Procedure are referred and the judgment given by the Hon'ble Supreme Court in the case of Arjun Singh vs. Mohindra Kumar and others reported in AIR 1964 SC 993(1) is relied upon by the learned Advocate for the petitioner to substantiate the argument that the trial Court had no jurisdiction to pass the impugned order and it was obligatory on its part to deliver the judgment. It is prayed that the impugned order be set aside and the trial Court be directed to deliver the judgment.
5. The learned Advocate for the respondent has pointed out the application dated 01-11-2014 filed by the defendant praying that the order passed by the trial Court on 12-08-2014 be set aside and the defendant be permitted to cross-examine the plaintiff.
The order passed by the trial Court on 12-08-2014 reads as follows :
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"Matter is fixed for the evidence of defendants. However,
defendants and their counsel remained absent. No
application is filed on record. Defendants failed to adduce evidence. Hence the evidence side of defendants be treated as closed and matter be kept for final argument."
6. It is submitted on behalf of the defendant that the defendant had not remained absent wilfully or deliberately and it is only because of the circumstances as explained in the application dated 01-11-2014. It is further submitted that the defendant had been sincerely contesting the civil suit, however, there were no bonafide attempts on the part of the plaintiff to get the civil suit disposed and though the civil suit is filed in 1999, the plaintiff gave evidence in 2014. It is further submitted that the Presiding Officer who had heard the arguments on behalf of the plaintiff in 2014, is now transferred and the Court where the civil suit is pending is presided over by some other Judge. In these circumstances, it is prayed that the petition be dismissed.
7. After hearing the submissions made by the learned Advocates for the respective parties, I am of the view that the submissions made on behalf of the plaintiff relying on the provisions of Order XVII and Order IX of the Code of Civil Procedure are not ::: Uploaded on - 08/08/2016 ::: Downloaded on - 09/08/2016 00:14:40 ::: 5 wp6838.14 required to be considered as the defendant has already filed the application dated 01-11-2014 which is pending for adjudication before the trial Court. The entitlement of the defendant to participate in the hearing/proceedings of the suit will depend on the decision which would be taken on the application dated 01-11-2014. It would not be appropriate for this Court to examine the issues raised in the application dated 01-11-2014.
8. In view of the above, to sub-serve the ends of justice, following order is passed :
(i) The trial Court, without being influenced by the order passed by it on 26-09-2014 and without being influenced by the fact that the Court itself has issued notice to the defendant, shall decide the application dated 01-11-2014 filed by the defendant.
(ii) The parties undertake to appear before the trial Court on 02-09-2016.
The petition is disposed in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE
adgokar
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CERTIFICATE
I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.
Uploaded by : P.M. Adgokar. Uploaded on : 08-08-2016.
P.A. to Hon'ble Judge.
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