Sau. Sunanda Babarao Kadu vs Meena W/O Jagdishrao Rahate
2017 Latest Caselaw 9340 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH AT NAGPUR

                          CIVIL REVISION APPLICATION NO.116/2014

     APPLICANT :                      Sau. Sunanda Babarao Kadu, 
                                      aged about 55 years, Occupation : 
                                      Household, r/o Gadge Nagar, Amravati, 
                                      Tq. and District Amravati. 

                                                 ...V E R S U S...

     RESPONDENT  :-                   Meena w/o Jagdishrao Rahate, 
                                      aged about 40 years, Occupation : Service, 
                                      r/o Ridhapur, Tq. Morshi, District Amravati, 
                                      presently r/o Gadge Nagar, Amravati. 
      
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                           Shri C.B. Dharmadhikari, Advocate for applicant
                           None for respondent
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                                                       CORAM  : ARUN D. UPADHYE, J.

                                                        DATE     : 06.12.2017

     ORAL JUDGMENT   

1. By this civil revision application, the applicant has prayed to

quash and set aside the order dated 30/10/2014 passed by the Civil

Judge Senior Division, Amravati in R.M.J.C. No.369/2012.

2. The brief facts of the case are as under :-

The applicant has filed Special Civil Suit No.95/2004 for

specific performance of contract before the Civil Judge Senior Division,

Amravati. The respondent appeared in the suit and obtained time to file

written statement, however, in spite of sufficient opportunity the

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respondent failed to file written statement. The suit was proceed without

written statement. The applicant thereafter adduced evidence on

affidavit, proved the documents and closed the evidence. Thereafter, the

learned Civil Judge Senior Division by its judgment and order dated

5/1/2006 decreed the suit. The respondent thereafter filed M.J.C.

No.22/2006, which came to be subsequently renumbered as R.M.J.C.

No.369/2012 under Order 9 Rule 13 of the Code of Civil Procedure for

setting aside the ex parte decree with application for condonation of

delay. The applicant has filed reply to the said application. After hearing

both sides, the Civil Judge Senior Division, Amravati allowed the

application by its order dated 30/10/2014. The said judgment and order

is impugned in the present revision application.

3. I have heard Shri Dharmadhikari, the learned Counsel for

the applicant. He submitted that the application filed under Order 9

Rule 13 of the Code of Civil Procedure was not maintainable as decree

passed by the learned trial Court was not ex parte. He further submitted

that the learned trial Court has wrongly allowed R.M.J.C. No.369/2012

and set aside the decree dated 5/1/2006 passed in Special Civil Suit

No.95/2004. The impugned order is not sustainable in law and therefore,

the same be set aside and the original application bearing R.M.J.C.

No.369/2012 filed by the respondent be dismissed.

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4. Considering the submission of the learned Counsel for the

applicant, I have gone through the impugned order as well as the

documents placed on record in this revision application. It appears that

Special Civil Suit No.95/2004 filed by the applicant was proceeded

without written statement and at the time of hearing of the suit the

respondent was remained absent. The applicant had adduced evidence

and thereafter the learned Civil Judge Senior Division, Amravati has

decreed the civil suit on 5/1/2006 directing the defendant to execute

sale-deed of suit plot on or before 6/2/2006 in favour of plaintiff and

deliver the possession of suit plot by receiving remaining balance of

Rs.13,350/- from the plaintiff. The respondent has filed application under

Order 9 Rule 13 of the Code of Civil Procedure for setting aside the

ex parte decree passed by the Civil Judge Senior Division, Amravati. After

obtaining the say from the applicant and after hearing both the sides the

civil application was allowed. In view of the provision of Order 9 Rule 13

of the Code of Civil Procedure, if the decree is passed in the absence of

defendant when he failed to appear when the suit was called on for

hearing, the Court shall make an order setting aside the decree as against

him upon such terms as to costs, payment into Court or otherwise as it

thinks fit. If that is so, the submission put forth on behalf of the applicant

that the decree of ex parte only can be set aside under Order 9 Rule 13 of

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the Code of Civil Procedure cannot be accepted. The learned trial Court

has considered the grounds mentioned in the application and recorded

finding that Roznama shows that one Advocate Shri V.D. Nagapure filed

the undertaking and sought time to file Vakalatnama and written

statement, however, later on said Advocate did not attend the proceeding.

5. Considering the above facts and circumstances of the case, I

am of the view that the learned trial Judge has rightly set aside the

ex parte decree and given opportunity to the respondent to appear in the

Special Civil Suit No.95/2004 and to file her written statement. No

interference of this Court is called for in the impugned judgment and

order. The civil revision application is devoid of any merit and the same is

dismissed. Rule stands discharged. No order as to costs.

JUDGE

Wadkar