Bombay High Court
Avtarsing Sundarsing Chhabra And ... vs Pradip Hiranand Katariya And ... on 24 August, 2016
Bench: T.V. Nalawade
W.P.No.8594/2016
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.8594 OF 2016
1. Avtarsing Sundarsing Chhabra,
Age 73 years, Occu. Retired
R/o Sector D, 35, Brij Nayani
Colony, Behind Queens College,
Khandwa Road, Indore (MP)
2. Amarjitsing Avtarsing Chhabra,
Age 37 years, Occu. Service,
R/o Sector D, 35, Brij Nayani
Colony, Behind Queens College,
Khandwa Road, Indore (MP) ..Petitioners
Versus
1. Pradip Hiranand Katariya,
Age 47 years, Occu. Business,
R/o Block No.101, Room No.1,
Kumar Nagar, Sakri road,
Dhule
2. Rajkumar Hiranand Katariya,
Age 50 years, Occu. Business,
R/o Block No.101, Room No.1,
Kumar Nagar, Sakri road,
Dhule ..Respondents
Mr S.P. Shah, Advocate for petitioners
Mr B.R. Warma, Advocate h/f Mr S.A. Nagargoje, Advocate for
petitioners
CORAM : T.V. NALAWADE, J.
DATE : 24th August 2016
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of
parties, heard finally at admission stage.
1. The petition is filed by defendants of Special Civil Suit No.107 of
2013, which is pending in the Court of Civil Judge, Senior Division
Dhule to challenge the order dated 26.7.2016 made on Exh.28, by
which they have prayed for setting aside the ex parte order made
against them.
W.P.No.8594/2016
2. The suit is filed by present respondents for specific performance
of contract of sale of immovable property. It appears that the suit
summons was sent on two occasions for service on the address given
in the plaint, but the summons could not be served and the serving
Officer reported that there was no complete address available and so,
summons could not be served. This order was sought from the Court
to serve the summons by sending it through Registered Post
Acknowledgment Due. The process was then sent through registered
post and report was received that intimation was given to the present
petitioners, but they did not collect the registered post notice. In view
of this endorsement, ex parte order came to be made on 28.10.2014.
The application for setting aside the order was made on 23.7.2015.
3. There are circumstances against the present petitioners/original
defendants that legal notice sent by the plaintiffs before filing the suit
was served on the same address on the petitioners and the notice was
also replied by the petitioners. One more circumstance was argued
by learned Counsel for the respondents/plaintiffs that along with the
application, no written statement was filed by the present petitioners
and so, the said application could not have been entertained. Learned
Counsel for petitioners submitted that the written statement was
tendered subsequently, but before passing of the order on aforesaid
application by the trial Court.
4. This Court has gone through the contents of the legal notice
given by plaintiffs and also the reply given by present petitioners to
the notice. This Court is avoiding to mention the contents of the reply,
W.P.No.8594/2016
but it can be said that in view of those contents, it can not be said that
the petitioners wanted to protract the things and they avoided to turn
up intentionally. Learned Counsel submitted that the petitioner No.1
is retired Lecturer and he was out of station for some time at the
relevant time. It can be said that not much could have been achieved
by the petitioners by staying away from the Court when the reply of
present nature was given by them is considered. In view of these
circumstances, this Court holds that the trial Court ought to have
considered the matter favourably. It also needs to be noted that
granting relief of specific performance is within the discretion of Court
and the Court needs to consider the material circumstances for giving
relief to the plaintiff or for refusing the same.
5. In view of aforesaid circumstances, this Court holds that the
order needs to be set aside. As such, Writ Petition is allowed. The
order dated 28.10.2014 made by learned Judge of the trial Court of
rejection of application filed on 23.7.2015, is hereby set aside. The
said application Exh.28 is allowed subject to condition of depositing of
Rs.10,000/- (Rs. Ten thousand) by the petitioners in the trial Court
within a period of three weeks from today. This order is subject to
condition that written statement is already tendered in the Court and
that was tendered before giving decision by the trial Court on
aforesaid application. The amount of costs to be paid to the original
plaintiffs. If the cost is deposited within time, it is to be presumed that
the order is set aside and the written statement is to be entertained.
W.P.No.8594/2016
6. Rule is made absolute in aforesaid terms.
( T.V. NALAWADE, J.)
vvr
