Bombay High Court
Yousun Dada Patel (Dead) Through ... vs Laxman Prabhat Rodu Real Name on 17 November, 2011
Bench: A. V. Potdar
{1} WRIT PETITION No.4071/2003
drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4071 OF 2003
1. Yousun Dada Patel (Dead) Through LRs PETITIONERS
1.a) Shaikh Shabbir Yousuf Patel
1.b) Dastgir Yousuf Patel
1.c) Shaikh Anis Yousuf Patel
1.d) Iqbal Yousun Patel
1.e) Rashin Yousuf Patel
1.f) Shaikh Shakir Patel
1.g) Bano Yousuf Patel
Age-25 years Occ-Household
R/o Hussain Colony, Aurangabad
1.h) Sugrabee Yousuf Patel
L.Rs. Of petitioner No.1.a to 1.f and 1.h
Age-Major, Occ-Household
R/o Takali, Tq-Khultabad, Dist-Aurangabad
2. Nawas Dada Patel,
Age-65 years, Occ-Agriculture
R/o As above
3. Hanif Abdul Rahman Patel
Alias Patel Anna, Age-55 years
Occ-Agriculture R/o As above
4. Sandu Abdul Rahman Patel
Alias Patel Anna Age-50 years,
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{2} WRIT PETITION No.4071/2003
Occ-Agriculture, R/o As above
5. Majeed Abdul Rahman Patel
Alias Patel Anna Age-40 years,
Occ-Agriculture R/o A above
6. Shevantabai Baburao
Age-42 years, Occ-Agriculture,
R/o Takli, Tq-Khultabad, Dist-Aurangabad
VERSUS
1. Laxman Prabhat Rodu Real Name RESPONDENTS
Laxman Prabhat Adhane
2. Shankar Bala Rodu, Real Name
Shankar Bala Adhane
3. Mahadu Shankar Rodu Real Name
Mahadu Shankar Adhane
4. Babasaheb Shankar Rodu,
Age-50years,
Real Name Babasaheb Mahadu Adhane
5. Ekanath Shripat Rodu
Age-45 years,
Real Name Eknath Shripat Adhane
6. Kishan Shripat Rodu,
Age-50 years,
Real Name Kishan Shripat Adhane
7. Ramkishan Shripat Rodu
Age-45 years,
Real Name Ramkisan Shripat Adhane
8. Shevantabai Baburao DELETED
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{3} WRIT PETITION No.4071/2003
9. Kesharbai Manjerao Rodu
(Died before filing the suit)
10. Kaduba Manjerao
Age-40 years,
Real Name Kaduba Manjerao Adhane
11. Gangadhar Manjerao
Age-45 years, Occ-Agriculture
Real Name Gangadhar Manjerao Adhane
12. Shankar Dondiba
Real Name: Shankar Dhondiba Adhane
13.
Sukhadeo Mohan Warde
Age-45 years,
Nos.1 to 8 and 10 to 13 all are major
by occupation all are agriculturist and
R/o Rajeral Takli, Tq-Khultabad
Dist-Aurangabad
.......
Mr.V.M.Kagne, Advocate for the petitioners
Mrs.Pooja V.Langhe with Mr.V.R.Langhe, Advocates for respondents
.......
[CORAM : A.V.POTDAR, J.]
th
November 2011
DATE: 17
ORAL JUDGMENT :
1. By the present petition, the petitioners - original
plaintiffs in RCS No.1118/1998 have questioned the correctness
and legality of the order dated 10.12.2002 passed by the 3rd Joint
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Civil Judge, Junior Division, Aurangabad in MARJI No.494/2002.
It appears that Rule has been issued in this petition on
24.08.2004.
2. Heard learned counsel for the respective parties.
3. For better appreciation of the rival submissions it is
necessary to advert to the few facts, which gave rise to file the
present writ petition.
It appears that the petitioners have filed RCS No.1118/1998
for recovery of possession and perpetual injunction from creating
any third party interest in the suit property, against the
respondents. It further appears that after the suit summons was
served, respondents appeared in the suit through advocate,
however failed to file written statement. It also appears that certain
opportunities were given to the respondents / defendants to file
written statement, however no written statement was filed.
Ultimately, after recording evidence of the plaintiffs/petitioners, the
suit came to be decreed vide judgment and decree dated
{5} WRIT PETITION No.4071/2003
18.04.2002. It further appears that after the said judgment and
decree came to the knowledge of the respondents / defendants,
they filed MARJI No.494/2002 on 22.04.2002. This application
came to be filed under Order IX Rule 13 of the Civil Procedure
Code seeking setting aside the ex parte decree. The said
application was contested by the petitioners / plaintiffs by filing
say, however, after hearing both the sides, vide order dated
10.12.2002, the said application came to be allowed by setting
aside the exparte decree dated 18.04.2002, which order is
impugned in the present petition.
4. During the course of submissions, amongst other
grounds, legal point is raised by the learned counsel for the
petitioners / plaintiffs that the application filed by the respondents
/ defendants under Order IX Rule 13 of the Civil Procedure Code is
not maintainable, as the judgment and decree dated 18.04.2002
was passed under the provisions of Order VIII Rule 5 of the Civil
Procedure Code or under Order VIII Rule 10 of the Civil Procedure
Code. In support of his contentions, learned counsel for the
petitioner placed reliance on the observations in "The Traders
{6} WRIT PETITION No.4071/2003
Bank Ltd., V/s Avta Singh" AIR 1988 Delhi 55 (1). Further
reliance is placed by learned counsel for the petitioners on the
observations of this Court in "Rashtriya Chemicals and
Fertilizers Ltd., V/s Ota Kandla Pvt. Ltd.," 1992 (2) Mh.L.J.
1266. The judgments relied on by the learned counsel for the
petitioners are not applicable to the present case.
5.
Considering the issue involved in this petition, it may
be useful to advert the observations of this Court in "Gaurang
Merchant V/s Madhliso & Co." 2004 (3) Mah.L.R. 218, wherein
it is observed by this Court that Defendant failing to file written
statement, Court not decreeing suit on assumption that facts
mentioned in plaint are deemed to be admitted but after requiring
plaintiff to file his evidence on affidavit, decree passed. The
circumstances, falls under Order IX Rule 6 and not under Order
VIII Rule 5 or 10 and hence application for setting such decree is
maintainable under Order IX Rule 13 of the Civil Procedure Code.
Thus, it is clear that if in the suit in which defendants appear but
failed to file written statement, however the plaintiff had filed
{7} WRIT PETITION No.4071/2003
evidence either on affidavit or otherwise, then the decree passed on
the basis of the said evidence does not cover under the ambit and
scope of Order VIII Rule 5 or Order VIII Rule 10 of the Civil
Procedure Code. Perusal of the judgment and decree dated
18.04.2002 indicates that in the said suit, to prove the case of the
plaintiffs, the plaintiffs had entered into the witness box and had
examined themselves at Exhibit-48. Apart from it, it also appears
that brothers of the plaintiffs had also produced documents in his
evidence. In the light of this, the submission of learned counsel for
the petitioners that the judgment and decree dated 18.04.2002 was
passed under Order VIII Rule 5 or 10 of the Civil Procedure Code,
is not tenable. In fact, the judgment and decree is squarely covered
under the ambit and scope of Order IX Rule 6 of the Civil
Procedure Code.
6. Once it is concluded that the judgment and decree,
subject matter of the MARJI Application No.494/2002, is not
passed under Order VIII Rule 5 or 10 of the Civil Procedure Code,
then it has to be held that the application, seeking to set aside the
said decree, is maintainable under Order IX Rule 13 of the Civil
{8} WRIT PETITION No.4071/2003
Procedure Code. Now the next question, which requires
consideration is as to whether to satisfy the ingredients of Order IX
Rule 13 of the Civil Procedure Code whether there was sufficient
cause for the respondents / defendants which prevented them
from appearing or participating in the suit. It is not only contended
in the application filed for setting aside the judgment and decree,
but respondent No.1 had also entered into the witness box and
stated on oath that after service of summons on the defendants,
they had engaged one advocate. They are the rustic village people
and depended upon the advise of their advocate, however as the
dates were not communicated to them by the said advocate, they
could not contest the suit properly. As no communication was
received from their advocate for a considerable time and hence they
changed the advocate, however by that time the judgment and
decree was already passed. Considering this evidence given by
respondent No.1 before the Court of inquiry, which is not shaken
even in the cross examination, reliance needs to be placed on the
same. Further, it is a settled principle of law that for the fault of
the advocate the litigant must not suffer. The cause shown by the
respondents / defendants in the application under inquiry that
{9} WRIT PETITION No.4071/2003
due to wrong advice or non communication from the advocate, they
are prevented from appearing in the suit, is just and sufficient
cause. In the circumstances, the defendants / respondents
succeed in establishing that the application filed by them is
maintainable under Order IX Rule 6 of the Civil Procedure Code.
They are further successful in establishing that they have
sufficient cause for not appearing / contesting / participating in
the suit, which resulted in passing of the exparte decree against
them. In the light of this, no fault can be found with the order
impugned in the petition warranting to interfere in the same.
7. Consequently, the writ petition, being sans merits, is
dismissed. Rule stands discharged. The stay granted earlier stands
vacated. Considering the peculiar facts and circumstances of the
case parties to bear their own costs.
8. The parties are directed to appear before the trial court
on 1st December 2011. Considering the old age of the proceeding,
the trial court is directed to hear and dispose of the suit, in
accordance with law, within a period of 3 months from the first
{10} WRIT PETITION No.4071/2003
appearance of the parties. Learned counsel for the respective
parties undertake to communicate this order to the concerned
parties. Parties to act on the authenticated copy of this judgment.
[A.V.POTDAR, J.]
drp/B11/wp4071-03
