Bombay High Court
Prabharkar S/O Dasrathji Bobde ... vs Jageshwar S/O Bhaskarao Patre And ... on 13 June, 2017
Bench: Dr. Shalini Phansalkar-Joshi
cra70.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO.70 OF 2016
1] Prabhakar s/o Dasrathji Bobde,
Aged 53 years, Occ: Business.
2] Pravin s/o Prabhakar Bobde,
Aged about 30 years,
Occ: Business.
Both applicants No.1 & 2 residents
of N-85, Reshimbagh, Nagpur.
3] M/s. Jai Developers and Builders,
thr. its Partner Pravin Bobde having
its office at 106, Jai Complex,
Gandhibagh, Nagpur. ....... APPLICANTS
...V E R S U S...
1] Jageshwar s/o Bhaskarrao Patre,
Aged about 44 years, Occ: Service.
2] Smt. Chhaya wife of Jageshwar,
Aged about 41 years, Occ: Household.
Both 1 & 2 R/o Behind Om Xerox,
C/o Shri Kawduji, Nandanwar,
Golibar Chowk, Nagpur. ....... RESPONDENTS
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Shri H.R. Gadhia, Advocate for Applicants
Shri A.H. Lohiya, Advocate for Respondent Nos.1 & 2.
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CORAM: SMT. DR. SHALINI PHANSALKAR-JOSHI, J.
th
DATE: 13
JUNE, 2017.
ORAL JUDGMENT
1] The legality, validity and propriety of the order
dated 26.04.2016 passed by 4th Joint Civil Judge, Senior
Division, Nagpur in Summary Civil Suit No.178/2010,
thereby rejecting the application filed by the petitioner to set
aside the ex parte decree passed therein on 25.04.2013, is
challenged in this revision.
2] Brief facts of the Revision are to the effect that,
the respondent herein has filed Summary Civil Suit
No.178/2010, against the present petitioner's for recovery of
the amount. The notice of the said suit was served on the
petitioners and they had engaged the counsel, who had filed
application for grant of leave to defend the suit. As per the
contention of the petitioners, their counsel, however, has not
pursued the matter diligently. He did not inform them about
the stage and progress made in the matter. As a result, the
ex parte decree came to be passed against the petitioners.
The petitioner therefore, filed M.J.C. No.90/2014 for setting
aside the said ex parte decree and for permission to defend
the suit.
`
3] This application came to be resisted by the
respondent contending inter alia that the petitioners had not
attended the matter diligently. It was submitted that after
filing of the application for leave to defend, the petitioners
were under legal obligation to attend the Court proceeding
regularly, which they have failed to do. The petitioners are
also literate persons and having knowledge about the Court
proceeding. The opportunity was granted to the petitioners by
the Courts to defend the suit, but despite that they remained
absent and were trying to shift the blame on their counsel.
Hence, it was submitted that as no sufficient cause was made
out, the ex parte decree passed in the Summary Suit cannot
be set aside.
4] In support of their case petitioner Nos.1 and 2
adduced their evidence. The Trial Court considered the said
evidence and also the record and proceeding of the Summary
Suit No.178/2010 and was pleased to hold that as the
petitioners were duly served with notice and had also
appeared in the suit through their counsel, it was their
responsibility to pursue the said matter. They cannot shift the
entire claim on their counsel to get the ex parte decree passed
in the matter set aside. The Trial Court therefore, rejected the
petitioners' application for setting aside the ex parte decree.
5] While challenging the impugned order of the Trial
Court, the learned counsel for the petitioners has mainly and
in my considered opinion, rightly, relied upon the provisions
of Order 37 Rule 3 sub-rule(2) of the Code of Civil Procedure
(state amendment). The said sub-rule provides as follows:
3. (1) ....
(2) If the defendant enters an appearance,
the plaintiff shall thereafter serve on the defendant,
a summons for judgment in Form No.4A in
Appendix B or such other form as may be prescribed
from time to time returnable not less than ten clear
days from the date of service supported by an
affidavit verifying the cause of action and the
amount claimed, and stating that in his belief there
is no defence to the suit.
In the instant case admittedly such summons for
judgment in Form No.4A as prescribed in Appendix-B was not
at all served on the petitioners after their appearance in the
suit. In view thereof, even assuming that they had appeared
in the suit and filed application for permission to leave, as no
such fresh summons as contemplated in sub-rule (2) of Rule 3
of Order 37 C.P.C. was issued or served upon the petitioners
before pronouncing of the judgment, the ex parte judgment
passed against them cannot sustain. The learned Trial Court
should have considered this legal provision, which is special
statutory protection given to the defendant in a suit to be
tried summarily. The entire order of the Trial Court is
conspicuously silent about the compliance of this legal
provision.
6] In view thereof, the impugned order of the Trial
Court needs to be quashed and set aside thereby giving an
opportunity to the petitioner to appear in the matter to
defend the suit, so that it can be decided on merit.
7] The revision is accordingly allowed.
The impugned judgment and order passed by the Trial Court
is quashed and set aside.
8] The ex parte decree passed in Summary Suit
No.178/2010 on 25.04.2013, is hereby quashed and set
aside, giving permission to the petitioners to appear in the
Trial Court and to defend the said suit.
9] On the request of the learned counsel for both the
parties, the hearing of the suit is expedited.
10] Trial Court to make every endavour to dispose of
the suit as expeditiously as possible and within a period of six
months.
JUDGE
NSN
