Bombay High Court
Smt. Shailaja W/O Arvind Mahajan, ... vs Shri. Pawan S/O Devendra Verma on 4 August, 2016
Bench: Z.A. Haq
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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
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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
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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.
