Sachin Haridas Shinde And Others vs Babu Ramkishan Koli And Others
2016 Latest Caselaw 4135 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                        
                         WRIT PETITION NO.2780 OF 2016




                                                
     1.       Sachin Haridas Shinde                            PETITIONERS
              Age - 27 years, Occ - Labour

     2.       Nitin Haridas Shinde,




                                               
              Age - 25 years, Occ - Labour

     3.       Ku. Manisha @ Kalawati Haridas Shinde
              @ Manisha Kalyan Pawar




                                     
              Age - 23 years, Occ - Household

     4.
                             
              Sumanbai Haridas Shinde,
              Age - 45 years, Occ - Household
              R/o Sambhaji Nagar, Latur
              Taluka and District - Latur
                            
              VERSUS

     1.       Babu Ramkishan Koli                            RESPONDENTS
      

              Age - 58 years, Occ - Agri & Labour
              R/o Pawarwadi,
   



              Taluka and District - Osmanabad

     2.       Haridas Eknath Shinde,
              Age - 47 years, Occ - Agri
              R/o Sambhaji Nagar, Latur





              Taluka and District - Latur

     3.       Kashinath Venkatrao Salunke,
              Age - 72 years, Occ - Agri.
              R/o Khadgaon, Taluka and District - Latur





     4.       Fayaz Dadamiya Shaikh,
              Age - 54 years, Occ - Agri.
              R/o Khadgaon, Taluka and District - Latur

                                   .......

Mr. S. G. Jadhavar a/w Mr.N. D. Kendre, Advocate for petitioners Mr.Amol Joshi h/f Mr.R.S.Deshmukh, Adv. for respondent No.1 .......

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                                   [CORAM : SUNIL P. DESHMUKH, J.]




                                                                          
                                     DATE : 26th JULY, 2016




                                                 
     ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for appearing parties finally, with consent.

2. Learned advocate for the petitioners submits that the

petitioners had instituted regular civil suit No.743 of 2006

seeking partition and separate possession of suit properties

including the ones parted with in favour of present respondent

No.1 and others.

3. Respondent No.1 had been duly served with summons and

he had appeared through an advocate. However, subsequently,

he did not attend to the court proceedings and eventually the

suit proceeded further culminating into dismissal of the suit in

respect of the appearing defendants and allowed against

respondent No.1.

4. Respondent No. 1 subsequently had lodged an application

purportedly pursuant to Order IX, Rule 13 of the Civil Procedure

Code contending that he had been prevented from appearing

under a sufficient cause when the suit was called on for hearing.

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5. The application at the initial stage before the trial court

was rejected, however, in appeal therefrom the order of the trial

court was reversed granting the application under Order IX, Rule

13 of the Civil Procedure Code in Miscellaneous Civil Appeal No.

69 of 2010 under order dated 31 st October, 2015 by District

Judge, Latur. It is thus, the petitioners are before this court.

6. Mr. Shivprasad Jadhavar, learned advocate appearing for

the petitioners vehemently contends that the application under

Order IX, Rule 13 of the Civil Procedure Code is not maintainable

at all having regard to the admitted position that suit summons

had been duly served on respondent No. 1 and that he had

engaged an advocate on his behalf. As such, learned advocate

contends that the decree passed against respondent No. 1 would

not be an ex parte decree, which is a prerequisite for an

application under Order IX, Rule 13 of the Civil Procedure Code.

He further goes on to submit that even otherwise, the

application moved under Order IX, Rule 13 of the Civil Procedure

Code is devoid of any material contentions, for, it does not

specifically refer to that respondent No. 1 had been prevented by

any sufficient cause from appearing when the suit was called on

for hearing. He as such, submits that the impugned order passed

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by the appellate court is unsustainable in fact and in law and the

writ petition deserves to be allowed.

7. Opposing aforesaid submissions on behalf of respondent

No. 1, Mr. Amol Joshi, learned advocate holding for Mr. Rajendra

Deshmukh contends that respondent No. 1 is a labourer and had

been living in penury and his financial condition was hand to

mouth. He had been away from the court's station for earning

livelihood in Mumbai to eke out his existence and under the

pathetic conditions, he could not keep informed the advocate

appearing for him about his whereabouts and in the

circumstances had been unaware of the progress of the suit

proceedings. he submits that as such, the decree came to be

passed only against respondent No. 1 whereas the decree has

been refused to be passed in favour of plaintiff against other

purchasers. He further draws attention to that almost all the

purchases are contemporaneously made. As such, the

immovable property, he could purchase is very close to him and

he is in dire need of the same as a source of livelihood for him.

Aforesaid apart, according to him, even legally, without seeking

declaration in respect of sale deed, the suit was not liable to be

decreed. Having such merits in the case, according to him, had

he really been able to attend to the court proceedings, the

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decision certainly would have been adverse to the interest of the

plaintiffs, but for his failure to appear, the decree had been

passed against him. He submits that the reasons, which have

been given in the application, preventing respondent No.1 from

appearing before the court though contested, it would have to be

taken into account that a deliberate absence was not conducive

to the interest of respondent No. 1. Had the need of the hour

been not genuine, he would have, in order to protect his

property certainly attended to the proceedings. No benefit is

derived by respondent No. 1 in keeping away from the suit

proceedings. In fact the decree shows that the absence which

was not intentional or deliberate has caused detriment to his

interest. He, therefore, submits that the contentions as have

been advanced on either side will have to be weighed by a scale

which will sub-serve the cause of justice.

8. On perusal of the order passed by the trial court and that

by the appellate court and after hearing learned advocate for the

parties, it transpires that the trial court has considered that the

suit has been decided on merits, since defendant No. 3 had filed

written statement, issues were framed and the suit was tried and

as such, the court purported to consider that Order IX, Rule 13

of the Civil Procedure Code may not hold the situation. The

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appellate court, on the other hand, has taken into account the

two citations as have been referred to in the impugned order

finding that such an application can be deemed to be

maintainable, distinguishing a case relied upon on behalf of the

present petitioners. The appellate court has in its discretion,

considered it appropriate that having regard to the reasons as

were given in the application, that the application will have to be

considered properly, which would sub-serve cause of justice and

as such, has set aside the trial court's order and substituted the

same with its order by allowing the application.

9. Since the petitioner is before this court in the discretionary

sphere of powers of this court, I would like to be little loath in

interfering with the impugned order inter alia for the reasons,

contest on merits is considered to be hallmark of the

jurisprudence as well as that the inconvenience caused to the

petitioner in the process may in such a case be made good by

imposition of costs.

10. Apart from aforesaid, yet another consideration which may

be relevant is that though the impugned order had been passed

on 31st October, 2015, the movement against the same has been

made belatedly and quite a few dates before the trial court in the

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process had intervened.

11. In view of aforesaid, I am disinclined to invoke the

extraordinary jurisdiction in favour of the petitioners, however, to

balance the situation, inconvenience caused to the petitioners,

deem it appropriate to impose costs on respondent No. 1. As

such, respondent No. 1 to deposit a sum of Rs.5000/- in the trial

court towards costs for setting aside ex parte decree under

Order IX, Rule 13 of the Civil Procedure Code by order dated 31 st

October, 2015 passed by District Judge, Latur in Miscellaneous

Civil Appeal No.69 of 2010. The costs be deposited within a

period of four weeks from the date of receipt of writ of this order.

The trial court is directed that the suit be proceeded with as

expeditiously as possible and dispose of the same within a period

of six months from the date of receipt of writ of this order.

Respondent No. 1 is expected not to cause any interlude in the

progress of the suit.

12. Writ petition as such, stands disposed of. Rule stands

discharged.

[SUNIL P. DESHMUKH, J.]

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