Dinkar @ Dinesh Yashwant Jadhav ... vs Kamalbai Khushal Warke Died ...
2016 Latest Caselaw 1319 Bom

                                         1                    WP-10925.15.doc


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                           
                           BENCH AT AURANGABAD

                         WRIT PETITION NO. 10925 OF 2015




                                                   
              Dinkar @ Dinesh Yashwant Jadhav,
              deceased, through his legal




                                                  
              representatives :-

     1.       Smt. Kastur Dinkar @ Dinesh Jadhav,
              Age 47 years, occup. Housewife




                                       
     2.       Yogesh Dinkar @ Dinesh Jadhav,                .. Petitioners/
              Age 25 years, occup. Service,
                              ig                            (Orig. L. Rs. of
                                                            deceased Deft.
              Both r/o 4/1, Sane Guruji Housing             No. 2A and 2B
              Zilla Peth, Jalgaon, Dist. Jalgaon
                            
                               versus

     1.       Kamalbai Khushal Warke, since
              deceased through Legal Representatives:
      


     1A)      Suresh Khushal Warke,
   



              Age 50 years, occup. Advocate,
              r/o Navi Peth, Jalgaon, Dist. Jalgaon

     1B       Jayant Khushal Warke,
              Age 50 years, occup. Service,





              r/o Nav Sahyadri Housing Society,
              Kawarnagar, Pune

     1C       Mrs. Nilima Suresh Tekale,
              Age 45 years, occup. Housewife,





              r/o 207, Navi Peth, Jalgaon, Dist.Jalgaon

     1D       Miss. Jaishri d/o Khushal Warke,
              Age 43 years, occup. Service,
              r/o Pune Hospital, Sadashiv Peth,
              Pune


     1E       Dilip Yashwant Jadhav,                        .. Respondents/
              Age 63 years, occup. Service,                  Resps No.1A




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              r/o Krushi Colony, near Khawaja Miya,                 to 1 D are LRs




                                                                                   
              Jilha Peth, Jalgaon, Dist. Jalgaon                    of Orig. Pltff./
                                                                     Appellants
                        ----




                                                           
     Mr. Pramod P. Dhorde, Advocate for petitioners
     Mr.Suresh Khushal Warke-respondent no.1A-party in person
     present
     Mr. Girish S. Rane, Advocate for respondents no. 1B to 1D




                                                          
                                         CORAM :       SUNIL P. DESHMUKH, J.

                                         DATE :        7TH APRIL, 2016




                                               
     ORAL JUDGMENT :


     1.
                             
              Rule. Rule made returnable forthwith.               Heard the parties

     finally, by consent.
                            

2. Proceedings bearing regular civil suit no. 236 of 1986 were

instituted for eviction by deceased respondent no.1-plaintiff

against deceased defendant no. 2 - Dinkar Yadav. On

appearance of defendants, upon trial, suit had been decided on

27-07-1993, resulting into dismissal of the same. Appeal carried

therefrom at the instance of original plaintiff bearing regular

civil appeal no. 238 of 1996 had been decided in favour of the

landlord-original plaintiff (now represented by present

respondents no. 1A to 1D) on 09-12-2004, reversing the

judgment and decree passed by trial court.

3. It appears, during pendency of aforesaid appeal, original

defendant no. 2 ( respondent no. 2 before district court) expired.

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Present petitioners who are the legal heirs of said deceased

defendant no. 2 Dinkar were not brought on record.

4. Present petitioners had filed writ petition bearing No.1150

of 2005 before this court against aforesaid judgment and decree

in regular civil appeal no. 238 of 1996 dated 09-12-2004. Writ

petition was allowed on 24-07-2013 by Honourable single judge

passing following operative order :

" (a) The impugned judgment and order dated 9 th December 2004,

passed by the 1st Ad hoc Additional District Judge, Jalgaon, in Regular Civil Appeal No.238 of 1996, is quashed and set aside. Regular civil

Appeal No. 238 of 1996 is restored to the file of the learned District Judge, Jalgaon.

(b) The respondents herein will file appropriate application for

bringing heirs and legal representatives of original defendant no. 2

Dinkar, in the District Court, on record, and serve copy thereof on other side. The petitioners will not oppose that application and the same application shall be allowed.

(c) The learned District Judge, Jalgaon, is requested to decide Regular Civil Appeal No.238/1996 within six months from the date of receipt of record and proceedings

(d) The respondents are at liberty to make application for bringing the subsequent events on record. If such application is made, the petitioners will be at liberty to file reply to that application. The learned District Judge will pass appropriate orders thereon.

(e) It is expressly made clear that all points are kept open."

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5. It appears that pursuant to aforesaid order, the parties

were expected to appear before the appellate court and

accordingly application Exhibit-32 appears to have been moved

on behalf of present respondents - landlords for bringing legal

heirs of deceased defendant no. 2 in regular civil appeal no. 238

of 1996 on record. Present writ petitioners had not put in their

appearance in the proceedings in the appellate court with

reference to aforesaid order of high court. The District Judge, as

such, issued notices to legal heirs of deceased defendant no. 2

which initially appear to have been returned unserved. In the

circumstances, the substituted service had been effected and

accordingly legal heirs of deceased defendant no. 2 were

served in application Exhibit-32 for bringing them on record.

Present writ petitioners - legal heirs of deceased defendant no. 2

chose not to cause appearance. Consequently, Exhibit - 32 had

been allowed and thereafter again notices of regular civil appeal

were issued to legal heirs of respondent no. 2 which appear to

have been duly served on them.

6. Regular civil appeal no.238 of 1996 proceeded further and

culminated into judgment and decree dated 12-03-2014

whereunder, the judgment and decree dated 27-3-1993 in

regular civil suit no.236 of 1986 passed by 2 nd Joint Civil Judge,

Junior Division, Jalgaon, was set aside and the suit was decreed,

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directing respondents (present petitioners-defendants) who were

brought on record of said appeal, to deliver vacant possession of

the suit property to the plaintiffs - landlords within two months

from the date of judgment in said appeal i.e. 12-03-2014.

Defendant No. 1-respondent no. 1 in said appeal was directed to

pay to the plaintiffs Rs. 7200/- towards arrears of rent and

inquiry into mesne profit under Order XX Rule 12 of the Code of

Civil Procedure, 1908 (" The Code" for brevity) had also been

directed.

7. Thereafter, it appears, an application Exhibit - 44 (writ

petition page 97) had been moved on 03-05-2014 before the

District Judge by respondent no. 2 Smt. Kastur (present

petitioner no. 1) in said regular civil appeal no. 238 of 1996,

requesting to stay the judgment and order in said appeal dated

12-03-2014.

8. Aforesaid application came to be rejected under order

dated 30-09-2014, having regard to further events which had

occurred in the interregnum.

9. Present petitioners had then on 20-05-2014 moved

application bearing miscellaneous civil application no. 109 of

2014 (writ petition paper book page 53) before the district court

pursuant to Order XLI, Rule 3A of the Code seeking condonation

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of delay in filing application under Order XLI Rule 21 of the Code

requesting re-hearing against decree in regular civil appeal no.

238 of 1996 dated 12-03-2014, claiming it to be ex-parte.

10. Present respondents opposed aforesaid application 109 of

2014. Parties accordingly were heard on delay condonation and

having regard to the observations made in the judgment and

decree dated 12-03-2014 in regular appeal no. 238 of 1996 and

that the applicants (present petitioners) not being in position to

wriggle out of the factual situation, District Judge-2, Jalgaon, by

order dated 27-04-2015, making observations as are appearing

in paragraph no. 5 of the same which read thus:

'' 5. On perusal of ex-parte judgment and decree dated 12-03-

2014 delivered in Regular Civil Appeal No.238 of 1996 and after

going through the contents of Para No. 4 thereof, it is seen that on 23-08-2013 the Opponents appeared before the Court through their Advocate Shri Parakash B. Patil. They tendered the application

Exh. 32 for bringing legal heirs of deceased Respondent No. 2 (Deceased husband of present applicant) on record. Since, the legal heirs of deceased husband of applicant did not appear before the Court on their own, therefore, notices were served upon them

through Bailiff, however, the same returned unserved with the remarks that, the parties named in the notices did not reside on the given addresses. Thereafter, the mode of substituted service was also adopted for the service of notices upon them. Even then, the applicant or other legal heirs of deceased husband of applicant did not appear before the Court. The application Exh. 32 was allowed

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and the applicant and the other legal heirs of deceased husband of

applicant were brought on record and once again, notices of Appeal were served upon them. However, none of them appeared before the

Court. '' ,

had rejected the request under miscellaneous civil application

no. 109 of 2015 to condone delay in filing application for setting

aside ex-parte decree in regular civil appeal no. 238 of 1996 and

for re-hearing of the same.

11.

Aggrieved by aforesaid order, petitioners are before this

court.

12. Learned counsel Mr. Dhorde appearing on behalf of the

petitioners strenuously urges to consider the request for

condonation of delay caused in filing application seeking to set

aside impugned claimed ex-parte decree, contending that

petitioner no. 1 had been residing in the premises from 1970

initially with her husband and has continued to reside in the

same after his death. It is further contended that after decision

by high court in writ petition no. 1150 of 2005, she had not been

in receipt of any notice or summons from the appellate court,

submitting further that she had applied for setting aside ex-parte

decree at appellate stage on 20-05-2014, however, since that

application had been considered to be outside limitation, the

same was disposed of.

                                                 8                  WP-10925.15.doc


     13.      It is being          contended on behalf of the petitioners that




                                                                                

they got knowledge about the decree in regular civil appeal no.

238 of 1996 dated 12-03-2014 on 21-04-2014. Thereafter,

application had been moved for certified copies of requisite

documents and those were received around 05-05-2014 and

since there was vacation from 06-05-2014 to 08-06-2014, they

could not move application earlier and accordingly had filed

application on 10-05-2014 i.e. during vacation period so as to

save limitation.

(Writ Petition paper book page 56).

14. Learned counsel for petitioners further purports to contend

that during the relevant period i.e. while decree was passed in

appeal, petitioner no. 1 along with relatives had been on

pilgrimage and as such could not be said to be aware of the

decision rendered in the appeal.

15. Mr. Suresh Khushal Warke, respondent no. 1A (one of the

heirs of deceased respondent no. 1 Kamalbai) appearing in

person has vehemently submitted that all these proceedings are

being taken up, carried on and procrastinated with a singular

object to harass and vex decree holders to keep them away

from the fruits of the litigation.

16. It is pointed out by him that the high court's order in writ

petition no. 1150 of 2005 which has been quoted hereinbefore

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is clear, lucid and amply bears out that having regard to

undercurrent of the order, it was not only morally obligatory for

petitioners, but it was necessary, incumbent and imperative for

them to cause appearance before the district court immediately

and ought to have caused appearance even before notices on

Exhibit - 32 were served since it was an order passed in their

favour by the high court by setting aside the appellate decree

which was then in favour of the landlords-respondents herein in

the writ petition at their instance. According to him, non

appearance by petitioners before the district court is not only in

defiance of the orders of the high court, but it shows scant

respect to the legal proceedings. Over and above that, while the

order of the high court had been duly followed in letter and spirit

by present respondents-landlords by making an application

Exhibit-32 for bringing legal heirs of deceased respondent no. 2

in appeal on record, present petitioners - respondents had

deliberately kept themselves away in appeal; whiling away time

and intentionally got notices issued to them. In spite of service,

they did not appear and the record bears truth that they had

been served not only once but thrice. Services were effected

before Exhibit-32 had been allowed and thereafter when it had

been allowed after present petitioners were made parties to

regular civil appeal.

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17. Party in person further refers to various aspects, stating

that as a matter of fact the petitioners do not reside in Jalgaon

at all, but they are residing at some other places and he

purports to refer to various documents secured by him under

Right to Information Act and also reports received back after

service on the writ petitioners of notices in execution

proceedings showing that they are not residing in suit premises

and contends that present proceeding is nothing but abuse of

process of law.

18. Mr. Rane, learned advocate appearing on behalf of

respondents no. 1B to 1D, states that he subscribes to the

arguments advanced by party-in-person and further refers to

and submits that having regard to factual situation it glaringly

surfaces that the pre-conditions for application for re-hearing

under Order XLI rule 21 of the Code are not subsisting and no

benefit can be derived by the petitioners from the same. He

submits that this is not the case in which it can be said that

petitioner no.1 was not duly served or, for that matter, she was

prevented from causing appearance when the appeal was called

for hearing.

19. According to learned counsel, present petitioners cannot

be said to have not been served and the appeal had proceeded

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ex-parte. As such, it is urged that no indulgence be given to

petitioners and writ petition be dismissed.

20. The respondents refer to and rely on a decision of the

supreme court in the case of S. P. Chengalvaraya Naidu vs

Jagannath, reported in (1994) 1 SCC 1 to emphasize that a party

playing fraud should not be assisted by the court.

21. After hearing the parties, position clearly appears to

emerge that after the order was passed by high court in writ

petition no. 1150 of 2005 on 24-07-2013, present petitioners

were served on several occasions and it is contended by party

in person that, in fact, petitioners were served thrice. Once while

Exhibit-32 had been moved by present respondents before

district court for bringing present petitioners as legal heirs of

defendant no. 2 on record of appeal. However, the matter was

not attended to by the petitioners. Thereafter, application Exhibit

32 had been granted and after having become parties to the

regular civil appeal, once again they were served with notice of

appeal. Despite that, the petitioners had chosen to remain away

from the appeal proceedings pending before the district court.

22. The contention of the party-in-person about the writ

petitioners residing at some different places other than suit

premises referring to certain documents in that respect have not

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been met with by writ petitioners nor are they in a position to

explain occurrence of such record or for that matter have not

been able to dispute said record as not being emanating from

factual position.

23. Looking at the tenor of the order passed by high court in

writ petition no.1150 of 2005 which is quoted hereinabove and

further that it was the petition of the present petitioners and was

decided in their favour, it is difficult to believe that they were

not aware of the pendency of the appeal proceedings. In fact,

clause (b) of said order in no uncertain terms refers to that the

petitioners were not supposed to oppose the application which

was to be made in procedural compliance for bringing legal heirs

of deceased defendant no. 2 (respondent no. 2 in appeal) on

record of the appeal. In the circumstances, petitioners ought to

have shown due diligence in prosecution of appeal at the

instance of present respondents-landlords.

24. Petitioners have not been in a position to come out of the

observations as are appearing in paragraph no. 4 of the

appellate court's judgment and in paragraph no. 5 in the

impugned order by producing any material depicting that the

same are not in accordance with the record.

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25. With aforesaid and the observations as are appearing in

paragraph no. 5 of the impugned order as well as the

observations about factual position as appearing from

paragraph no. 4 of the judgment in regular civil appeal no. 238

of 1996 and further the averments as are appearing in the

application purportedly under Order XLI, rule 3A and section

151 of the Code which do not appear to be adhering to the

factual position, it does not appear to be a case wherein

indulgence can be shown to the petitioners.

26. Writ petition as such fails and thus stands dismissed with

no order as to costs.

27. Rule stands discharged.

SUNIL P. DESHMUKH, JUDGE

pnd