Bombay High Court
Anita W/O Gajanan Tathe vs Vasant S/O Jairam Badodekar And ... on 6 December, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No. 6975 of 2017
PETITIONER: Anita w/o Gajanan Tathe,
(Org. Defendant Aged about 47 years, Occ- Household,
No. (1-b) R/o near Tathe Wada, Tilak Rastriya Vidyalaya,
Khamgaon, Tah-Khamgaon, Dist. Buldhana.
-VERSUS-
RESPONDENTS: 1 Vasant s/o Jairam Badodekar,
(Org. Plaintiff) Aged about 68 years, R/o Shastri Nagar, Jaju
Plots, Akola, Dist. Akola.
(Org. Deft. No.2) 2 Mohd. Taher Abdul Rashid,
Aged about 65 years, Occ-Business,
R/o Kallyanwadi, Balapur Road, Akola.
(Org. Deft No. 3 Prabhadevi wd/o Pritamrao Tikar,
(1-a) Aged about 65 years, Occ-Agriculturist,
R/o Kolori, Tah-Khamgaon, District-Buldhana.
(Org. Deft No. 4 Vandana w/o Ganesh Tyade,
(1-c) Aged about 45 years, Occ-Household,
R/o Hingna, Post-Nimbha, Tahsil & District-
Akola.
(Org. Deft No. 5 Sharda w/o Ajabrao Lod,
(1-d) Aged about 43 years, Occ-Household,
R/o Manarkhed, Tahsil and District-Akola.
(Org. Deft No. 6 Varsha d/o Pritamrao Tikar,
(1-e) Aged about 34 years, Occ-Household,
R/o Kolori, Tahsil-Khamgaon,
District-Buldhana.
Mr. Rohit Joshi, Advocate for the Petitioner.
Mr. S.V. Sohoni, Advocate for the Respondent No.1.
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CORAM: Z.A. Haq, J.
DATED: 06.12.2017.
Oral Judgment
Heard.
1. The contesting party Respondent No.1 (original plaintiff) is
served with the notice of this writ petition. The office note shows that
the report of service of notice of Respondent Nos. 2 and 4 are
awaited. For the purposes of deciding this writ petition, the presence
of respondent Nos. 2 and 4 is not required. In view of the order
passed by the Hon'ble Supreme Court in Petition for Special Leave to
Appeal (C) No. 968/2016 on 06/10/2017, directing the trial Court to
take decision on the issue of limitation on or before 31/12/2017, this
petition is taken up for hearing.
Rule. Rule made returnable forthwith.
2. The respondent No.1-plaintiff had filed Regular Civil Suit
No. 05/2000 praying for decree for specific performance of agreement
of sale and for injunction or in the alternative for refund of amount of
consideration. By the judgment dated 29/07/2010, the trial Court
decreed the suit in favour of the plaintiff and directed the legal
representatives of original defendant No.1 (Pritamrao Anandrao
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Tikar) to receive an amount of Rs. 5,000/- and to execute the sale-
deed of the suit property in favour of the plaintiff within 60 days from
the date of the judgment. The defendant No.2 challenged the
judgment and decree before the District Court in Regular Civil Appeal
No.99/2012. The learned District Judge allowed the appeal, set aside
the judgment and decree passed by the trial Court and remanded the
matter to the trial Court for deciding the civil suit afresh, considering
the issue of limitation also. The judgment passed by the District Court
was challenged before this Court by the plaintiff in Appeal Against
Order No. 59/2014, which is dismissed on 12/10/2015. The plaintiff
filed petition for Special Leave to Appeal before the Hon'ble Supreme
Court, in which an order is passed on 28/01/2016 as follows :
"Issue notice limited to the question whether the
remand should have been only for deciding the issue of
limitation or for a fresh trial of the suit.
Notice be made returnable within four weeks from
today.
Dasti, in addition, is permitted.
In the meanwhile, we do not stay the proceedings
before the Trial Court, but make it clear that the Trial
Court may decide only the issue of limitation."
It appears that the matter was again listed on 06/10/2017
on which date, the following order is passed :
"On 28.01.2016, we did not stay the
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proceedings before the Trial Court but made it clear
that the Trial Court will decide only the issue of
limitation. Almost two years have gone by, the issue
of limitation has yet not been decided.
Under the circumstances, we are
constrained to direct the Trial Court to take a
decision on the issue of limitation on or before
31.12.2017.
Learned counsel for the parties say that
they will cooperate with the Trial Court in having
the issue decided at the earliest.
List the matter in January, 2018."
3. On 14/08/2017, the petitioner (original-defendant no.1-b)
filed an application (Exhibit No. 160) praying that the order passed
by the trial Court to proceed ex-parte against her be set aside.
According to the defendant No. 1-b, she was not served with the suit
summons and the trial Court had proceeded ex-parte against her and
decreed the suit by the judgment dated 29/07/2010.
The reason for filing the application (Exhibit No.160), on
14/08/2017 is given in paragraph No.3 of the application as follows :
"3] The present defendant was expecting that she
will receive the summons of the court in view of the
order of remand. However nothing was received, and
hence the present defendant made enquiry and
found that the summons are not issued to the
present defendant. Hence in order to avoid further
complications in the matter, the present defendant is
appearing in the matter."
This application (Exhibit No.160) is rejected by the
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learned trial Judge by the impugned order.
4. The impugned order is challenged on the following
grounds:-
(i) The Trial Court has committed an error by
proceeding ex-parte against the petitioner without issuing fresh
notice in the matter after remand of the proceedings. The fact
that earlier an order to proceed ex-parte was passed against the
petitioner could not be a ground for not issuing fresh summons
after remand of the matter. The learned trial Court should have
appreciated that a fresh right to contest the proceeding is vested
with the petitioner after remand of the proceedings.
(ii) The trial Court has committed an error in
treating the application as under Order-IX, Rule-13 of the Code
of Civil Procedure. According to the advocate for the petitioner/
defendant no.1-b the application has to be treated under
Order-IX, Rule-7 of the Code of Civil Procedure.
(iii) The learned trial Judge has foreclosed the right
of the defendant no.1-b to participate in the proceedings. It is
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submitted that the effect of the order directing that the civil suit
shall proceed ex-parte against the defendant no.1-b is that the
defendant no.1-b would not be able to file her written statement,
however, defendant no.1-b would be entitled to participate in
the proceedings from the stage at which she has put in
appearance and an apprehension is expressed that the trial Court
may not permit the defendant no. 1-b to participate in the
proceedings.
In support of the contentions, reliance is placed on
the following judgments :-
i) Sangram Singh V/s Election Tribunal Kotah and
another reported in AIR 1955 Supreme Court 425.
ii) Sushil Kumar Sabharwal v/s Gurpreet Singh
and others reported in AIR 2002 Supreme Court
2370.
iii) Akola Zilla Parishad V/s Laxman Baluji
Manatkar and another reported in 1980 Mh.L.J.
5. The learned advocate for the respondent No.1 has pointed
out that the notice of defendant no.1-b of civil suit was sent on the
following address :
"Sau. [email protected] Anusaya w/o Ganesh Tathe,
Lokmanya Tilak Rashtriya Vidyalaya, near Tathe Wada,
Khamgaon, Dist. Buldhana"
From paragraph-11 of the judgment passed by the Trial
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Court on 29/07/2010, it is pointed out that the Court recorded that
the suit summons was served on defendant nos. 1-A to 1-E and they
failed to appear in the suit. It is pointed out that notice was issued by
the Executing Court intimating defendant no.1-b that the amount of
Rs.5,000/- was deposited by the plaintiff and it be collected within 8
days and this notice was sent on the following address :
"Sau. [email protected] w/o Ganesh Tathe,
R/o near Rashtriya Vidyalaya, Tah. Khamgaon,
Dist. Buldhana-"
It is submitted that this notice is received by defendant
no.1-b and it shows that the notice of civil suit was sent on correct
address of defendant no.1-b. The learned advocate for the plaintiff
has submitted that there are no bonafides on the part of the
defendant no. 1-b in filing the application (Exhibit No.160) and she
is being misused by the defendant no.2 to protract the litigation.
6. The facts on record show that the defendant no.1-b was
served with the notice of Regular Civil Appeal No. 99 of 2012 and
also of Appeal Against Order No. 59 of 2014. In the application
(Exhibit No.160) filed by the defendant no.1-b, it is stated that she
expected summons from the trial Court after the remand of
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proceedings by the District Court, but as she did not receive the
summons she made inquiry and got knowledge that the suit summons
was not issued to her and the trial Court was proceeding with the civil
suit and therefore, she appeared in the proceedings on her own. The
submission of the petitioner in paragraph 3 of the application
(Exh.No.160) that she was expecting summons after remand of the
proceedings by the District Court, shows that she was aware that the
matter is remanded to the Civil Court. The District Court remanded
the matter by the judgment dated 23 rd April, 2014 and the application
(Exh.No.160) is filed on 14th August, 2017 and there is no explanation
for the inordinate delay in filing the application (Exh.No.160). At the
time of hearing of the writ petition the advocate for the petitioner/
defendant No.1-b argued that the application could not be filed
earlier as the judgment passed by the District Court on 23 rd April,
2014 was challenged before this Court in Appeal Against Order No.
59 of 2014 and then in the Petition for Special Leave to Appeal.
Though this submission is made at the time of hearing, there is
nothing in the application on the basis of which it can be said that the
defendant No.1-b could not have filed application earlier. There is
nothing on record to show why the defendant No.1-b had not sought
permission from this Court at the time of decision of the Appeal
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Against Order No. 59 of 2014 that the order passed against her to
proceed exparte is affecting her right to defend. The petitioner/
defendant No.1-b has not pointed out why she has not made request
before the Hon'ble Supreme Court in the matter when the Hon'ble
Supreme Court directed the trial Court to proceed with the civil suit
and decide the issue of limitation.
The above facts show that the application (Exh.160) is
filed with evil design of protracting the matter inspite of directions
given by the Hon'ble Supreme Court that the issue of limitation
should be decided by the trial Court till 31st December, 2017.
In the facts of the case, as recorded above, the submissions
made by the advocate for the petitioner/ defendant No.1-b relying on
the judgments referred above does not require any consideration as
those judgments are not of any assistance to the petitioner.
7. The advocate for the defendant No.1-b has submitted that
the order passed by the trial Court to proceed expate against her
means that the defendant No.1-b would not be entitled to file her
written statement, however, it does not mean that she cannot
participate in the proceedings of the civil suit, but she is not
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permitted to participate in the civil suit. Though this submission is
made at the time of hearing of the writ petition, there is nothing on
record to substantiate the contention. Moreover, the advocate for the
respondent No.1/ plaintiff has submitted that the submission is ill-
founded and she is not precluded from participating in the
proceedings of the civil suit.
Hence the following order:
ORDER
1) The Writ Petition is dismissed.
2) Considering the facts of the case it is directed
that the petitioner/defendant No.1-b shall pay
costs of Rs.50,000/-(Rs. Fifty Thousand only)
to the respondent No.1/plaintiff till
21st December, 2017 by demand draft and
produce receipt on record of trial Court till 22 nd
December, 2017.
3) The trial Court shall decide the issue of
limitation as directed by the Hon'ble Supreme
Court till 31st December, 2017.
JUDGE
nandurkar
