Bombay High Court
Prabhu Vithobaji Lende vs Hardik Deepakbhai Parekh on 10 April, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3372 OF 2016
Prabhu Vithobaji Lende,
Aged 74 years, Occ. - Agriculturist,
R/o Ayachit Mandir Road, Badkas
Chowk, Mahal, Nagpur. .... PETITIONER
VERSUS
Hardik Deepakbhai Parekh,
Aged about 42 years, Occ. - Business,
R/o House No.643, Block No.2,
Badkas Chowk, Ayachit Mandir Road,
Mahal, Nagpur. .... RESPONDENT
______________________________________________________________
Shri A.C. Dharmadhikari, Advocate for the petitioner,
None for the respondent.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 10
APRIL, 2017.
th
ORAL JUDGMENT :
In response to the notice issued by this Court on
20-06-2016 none appeared for the respondent/ defendant and
therefore, this Court issued notice for final disposal on 24-10-2016.
The matter was placed before the Court on 19-12-2016 with the office
note that notice of respondent was not served. On 19-12-2016 this
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Court directed fresh notice of final disposal to the respondent. Though
the respondent is served, there is no appearance on his behalf.
Heard Shri A.C. Dharmadhikari, Advocate for the
petitioner.
2. Rule. Rule made returnable forthwith.
3. The original plaintiff has challenged the order passed by
the trial Court on application filed by him praying that the defence of
defendant be struck off for not complying with the order passed by the
trial Court on application (Exhibit No.30) on 27-11-2015. By the
impugned order, the trial Court granted a week's time to the defendant
to comply with the order passed on 27-11-2015 and deposit the arrears
of rent, failing which it is directed that the defence of the defendant
can be struck off.
4. The plaintiff had filed an application (Exhibit No.30)
under Order XV-A of the Code of Civil Procedure on which the trial
Court passed order on 27-11-2015 directing the defendant to deposit
Rs.72,000/- towards rent for the period from September 2012 to
August 2015, within one month. As this order was not complied, the
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plaintiff filed an application on 22-01-2016 praying that defence of the
defendant be struck off for not complying with the order passed on
27-11-2015. After the plaintiff filed the application praying that
defence of the defendant be struck off, the defendant filed an
application (Exhibit No.35) on 16-02-2016 praying that three weeks'
time be granted to comply with the order passed on 27-11-2015. This
application (Exhibit No.35) was rejected by the trial Court on
16-02-2016. The defendant filed an application (Exhibit No.37) on
22-02-2016 seeking permission to deposit Rs.84,000/-. This
application came to be rejected by the order passed on 29-02-2016.
The order passed on the application (Exhibit No.37) was challenged by
the defendant before this Court in Writ Petition No.2337/2016. By the
judgment delivered on 21-04-2016, Writ Petition No.2337/2016 came
to be dismissed. After dismissal of the writ petition, the defendant
filed reply dated 07-06-2016 to the application filed by the plaintiff
praying that defence of defendant be struck off. The trial Court, by the
impugned order, has granted a week's time to the defendant to deposit
the amount.
5. After hearing the learned Advocate for the petitioner/
plaintiff and examining the documents placed on record of the
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petition, I find that the learned trial Judge has committed patent
illegality by giving a complete go-bye to the orders passed by him on
application (Exhibit No.35) and on application (Exhibit No.37) and the
judgment passed by this Court in Writ Petition No.2337/2016. The
learned trial Judge has committed an error of jurisdiction by granting a
week's time to the defendant to deposit the amount overlooking the
fact that the earlier order passed by him on the application (Exhibit
No.37) refusing to grant permission to deposit the amount is
maintained by this Court. After this Court maintained the order passed
by the trial Court on the application (Exhibit No.37), it was not open
for the trial Court to grant time to the defendant to deposit the
amount.
6. Sub-Rule (2) of Rule 11 of Order XXXIX of the Code of
Civil Procedure enables the Court to condone the lapse, however, it
can be only on satisfaction of the Court that the party committing
default or contravention or breach makes amends. However, in the
present case, the trial Court has not applied its mind to the relevant
facts and has not recorded its satisfaction as required by the above
provision. Moreover, in view of the orders passed earlier by the trial
Court and in view of the judgment passed by this Court in Writ Petition
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No.2337/2016, the trial Court could not have exercised its jurisdiction
under Sub-Rule (2) of Rule 11 of Order XXXIX of the Code of Civil
Procedure. Therefore, I find that the impugned order is unsustainable
and is required to be set aside.
7. There is one more aspect which is required to be taken
into consideration. The learned Advocate for the petitioner/plaintiff
has submitted that though the defendant has deposited Rs.84,000/-
which was the amount due towards arrears of rent till March 2016 as
stated in the application (Exhibit No.37) filed by the defendant, the
defendant has not paid or deposited any amount for the rent from
April 2016.
8. In view of the above, the following order is passed :
(i) The impugned order is set aside.
(ii) The application filed by the plaintiff praying that the
defence of the defendant be struck off is allowed in terms
of the prayer made in the application.
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Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
adgokar
