Ujwal Chandrashekhar Belapurkar vs Smt. Kalpana Vijay Saindane ...
2018 Latest Caselaw 1144 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.14205 OF 2017

        Ujwal Chandrashekhar Belapurkar,                        ]

        Age : 62 years, Occ. Retired,                           ]

        R/of Bungalow No.27, Maangalya,                         ]

        Krushinagar Colony, Nashik-422005.                      ] .... Petitioner

                          Versus

        1. Kalpana Vijay Saindane (Nandedkar),                  ]

           Age : About 63 years,                                ]

           R/of Flat No.4, Anand Nagar,                         ]

           Anand A-2, Behind Akashwani Kendra,                  ]

           Gangapur Road, Nashik 422 013.                       ]

        2. Anjali nee Parineeta Jayan Abhyankar,                ]

           Age : 54 years, Occ. Household,                      ]

           R/of Flat No.4, Padmanabh Housing Soc.,              ]

           S.T. Colony, in front of Upadhye Hospital,           ]

           Gangapur Road, Nashik.                               ]

        3. Nita nee Vaishali Divakar Ratnaparkhi,               ]

           Age : 52 years, Occ. Household,                      ]

           R/of Premraj Bungalow,                               ]

           in front of Ganpati Mandir, S.T. Colony,             ]

           Gangapur Road, Nashik.                               ] .... Respondents


                                                1/8
        WP-14205-17.doc

                 ::: Uploaded on - 02/02/2018            ::: Downloaded on - 04/02/2018 01:26:23 :::
 Ms. Sharmila U. Deshmukh for the Petitioner.

Mr. S.P. Dighe for Respondent No.1.

Mr. M.S. Athalye for Respondent Nos.2 and 3.


                          CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                          DATE          : 30 TH JANUARY 2018.


ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Ms. Deshmukh, learned counsel for the

Petitioner, Mr. Dighe, learned counsel for Respondent No.1, and

Mr. Athalye, learned counsel for Respondent Nos.2 and 3.

2. By this Writ Petition, filed under Article 227 of the Constitution of

India, the Petitioner is challenging the order dated 11th January 2016

passed by the District Judge-6, Nashik, thereby dismissing the Civil

Miscellaneous Appeal No.102 of 2014.

3. The said Appeal was preferred by the Petitioner challenging the

order dated 14th September 2014 passed by the 3rd Joint Civil Judge,

Senior Division, Nashik, thereby dismissing the Civil Miscellaneous

Application No.338 of 2013.

4. Civil Miscellaneous Application No.338 of 2013 was preferred by

WP-14205-17.doc

the Petitioner for setting aside the ex-parte decree passed in Special

Civil Suit No.259 of 2012 contending, inter alia, that, on account of the

reason of his illness, the illness of his son and the marriage of his

daughter, he could not remain present, when the Suit came to be decided

ex-parte. Thus, it was submitted that, there was sufficient reason to set

aside the ex-parte decree. In support of his submission, the Petitioner

has also examined himself and produced the Medical Certificate on

record.

5. Both, the Trial Court and the Appellate Court, considered the

reasons given by the Petitioner for condonation of delay and for setting

aside the ex-parte decree and found that, there was no substance in the

reasons given by the Petitioner and those reasons are not sufficient to

explain satisfactorily the delay and also the cause of his absence, when

the proceedings were decided ex-parte.

6. Against this concurrent finding of fact recorded by both the Courts

below, the Petitioner has approached this Court by submitting that,

while deciding such application for condonation of delay or for setting

aside the ex-parte decree, the approach of the Court has to be liberal. It

is urged that, in the present case, the dispute pertains to possession of

the immovable property. Petitioner has already approached the

Testamentary Court for getting probate of 'Will' of his mother, under

WP-14205-17.doc

which the property is bequeathed to him. Hence, it is submitted that, as

the substantial rights of the Petitioner are involved and execution of

such an ex-parte decree will have the effect of dispossession of the

Petitioner from the residential house, this Court should condone the

delay and allow setting aside of the ex-party decree passed by the Trial

Court.

7. In support of her submission, Ms. Deshmukh, learned counsel for

the Petitioner, has relied upon the Judgment of the Apex Court in the

case of G.P. Srivastava Vs. R.K. Raizada and Ors., (2000) 3 SCC 54 ,

wherein, in paragraph No.7, the well crystallized principles of law are

laid down, as follows :-

"7. Under Order 9 Rule 13 CPC, an ex-parte decree passed against a defendant can be set aside, upon satisfaction of the Court that, either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing, when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex-parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed, to enable the court to do complete justice between the parties; particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression, for which no hard

WP-14205-17.doc

and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause, keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non- appearance of the defendant on the date fixed for hearing, when ex-parte proceedings were initiated against him, he cannot be penalised for his previous negligence, which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour; provided the absence was not mala fide or intentional. For the absence of a party in the case, the other side can be compensated by adequate costs and the lis decided on merits."

8. There cannot be any dispute about the legal propositions laid down

in this Judgment of the Apex Court. It is true that, the term 'sufficient

cause' is required to be interpreted in a liberal manner, but, at the same

time, the Court has to see whether there was any negligence on the part

of the Petitioner and whether the explanation offered is sufficient.

9. In the present case, the impugned order passed by the Trial Court

and the Appellate Court is more than sufficient to reflect that the Special

Civil Suit was instituted by the Respondents against the Petitioner for

WP-14205-17.doc

the relief of partition and separate possession on 3 rd May 2012.

Petitioner has appeared in the said Suit on 15 th June 2012. Thereafter,

the order of "No WS" came to be passed against the Petitioner on 12 th

October 2012. Then the affidavit-in-evidence of Respondent No.1 was

filed on 24th January 2013 and, ultimately, on 6th August 2013, the Suit

came to be decreed ex-parte. Therefore, it is not the case where the

Petitioner has not received summons of the Suit and, therefore, the

Petitioner remained absent or the ex-parte decree came to be passed;

but, this is a case where the Petitioner has appeared in the Suit; has very

much knowledge of the Suit; but failed to file written statement to

contest the said Suit, despite sufficient opportunity, and as a result, the

ex-parte decree is passed in the Suit, without there being written

statement filed on record.

10. What is significant to note is that, the Petitioner has admitted in

his cross-examination that, he got the knowledge of the ex-parte decree

passed in the Suit, on 6th August 2013, on the very next. Therefore, it

follows that the Petitioner was very much keeping a watch on the

proceedings, but has allowed the same to be decided without written

statement or ex-parte. Thereafter also, he has not approached the Court

immediately for setting aside the ex-parte decree, but, allowed the time

to lapse and then filed the Petition to set it aside, without filing any

separate application for condonation of delay.

WP-14205-17.doc

11. Apart from and in addition to these factors, it is pertinent to note

that, the reasons given by the Petitioner for condonation of delay and for

setting aside the ex-parte decree, are also not justified. The marriage of

his daughter had taken place on 13th February 2013; whereas, the Suit

came to be decided ex-parte on 6th August 2013. Hence, that ground can

no more be available to the Petitioner. As regards the second ground

that he was suffering from illness, the Appellate Court has reproduced,

in detail, the Medical Certificate produced by him and which only shows

that, Petitioner had some ailment of high blood sugar or of a diabetes,

but the Report shows that, at the relevant time, no sugar was detected in

the blood and, therefore, it can hardly be accepted that he was bed-

ridden in any way.

12. What is most significant and fatal to the case of the Petitioner is

that, during the said period itself, the Petitioner has filed Miscellaneous

Application for filing a Testamentary Petition to get the probate of 'Will'

of his mother. If he can do so, then, as rightly observed by the Trial Court

and the Appellate Court, it can hardly lie in his mouth to say that, on

account of his illness or the illness of his son, he was prevented from

appearing in the Trial Court for the purpose of this Suit and to contest

the said Suit.

WP-14205-17.doc

13. The learned Trial Court and the Appellate Court, both, have

considered all these factors in detail. Thereafter, having regard to the

conduct of the Petitioner throughout the proceedings, that of remaining

totally careless and negligent, despite knowing the consequences of his

act of remaining absent, clearly indicates that the entire attempt of

remaining absent on the part of the Petitioner is to frustrate the

proceedings initiated by the Respondents and not to allow them to enjoy

the fruits of the decree.

14. Writ Petition, therefore, being without merits, stands dismissed.

15. Rule is discharged.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

WP-14205-17.doc