Bombay High Court

M/S. P.B. Deshmukh And Associates ... vs Vastu Vishwa Developers Pvt.Ltd. ... on 11 January, 2018

Bench: Z.A. Haq

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

                        WRIT PETITION NO. 4402/2015

 1] M/s. P.B. Deshmukh & Associates, 
    through its Proprietor Prakash s/o
    Bhaskar Deshmukh, Aged about 51 years, 
    having its Office at L.I.G.-I, 
    Sundervan Layout, 
    Narendra Nagar, Nagpur-15           ... PETITIONER


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

 1] Vastu Vishwa Developers Pvt. Limited, 
    having its Office at 201, 2nd  floor, Ganesh
    Chambers, Mehadia Square, Dhantoli, 
    Nagpur-440012
    (Ori. Applicant No. 1)

 2] Prafulla Purushottamraoji Gadge, 
    Aged about 52 years, Director of 
    Vastu Vishwa Developers Pvt. Limited, 
    having its Officer at 201,  2nd  floor, Ganesh
    Chambers, Mehadia Square, Dhantoli, 
    Nagpur, residing at Plot No. 77, Sai Naman, 
    Old Subhedar Layout, Nagpur
    (Ori. Applicant No. 2)

 3] Yogesh Baburaoji Kaikade, 
    Flat No. 11-A and 12A, 3rd floor,
    "Emerald", Building No. C in Precious
    Gems, North Main Road, Koregaon Park, 
    Pune-411001
    (Ori. Non-Applicant No. 2)

 4] Deepak Madhavrao Nilawar, 
    Aged Major, Director of Vastu 
    Vishwa Developers Pvt. Limited, 
    having its office at 201,  2nd  floor, Ganesh
    Chambers, Mehadia Square, Dhantoli, 




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       Nagpur, R/o Rahate Colony Square, 
       Wardha Road, Nagpur
       (Ori. NonApplicant No. 3)                         ... RESPONDENTS


 ===================================
           Shri B.N. Mohta, Advocate for the petitioner
     Shri B.C. Pal, Advocate for the respondent nos. 1 and 2
       Shri V.S. Dhote, Advocate for the respondent no. 3
    Shri S.S. Rahimuddin, Advocate for the respondent no. 4
 ===================================



                                            CORAM:- Z.A. HAQ,J.

th DATED :- 11 JANUARY, 2018

ORAL JUDGMENT :-

Heard.

Rule. Rule made returnable forthwith.

2] The petitioner-decree holder has challenged the order

passed by the trial Court by which the application filed by the

respondents-judgment debtors under Order IX Rule 13 of the Code

of Civil Procedure is allowed and the judgment and decree passed

in Regular Civil Suit No. 108/2012 is set aside and the civil suit is

restored.

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 3]               In the application filed by the judgment debtors under

Order IX Rule 13 of the Code of Civil Procedure, explanation for

not attending the proceedings is found in paras 2, 3 and 4 which

are reproduced below:-

"2. The applicant No. 2, being engaged in other business work was mostly remaining at Indore for his business work could not contact the counsel after giving the vakalatnama and could not provide the necessary documents and give the necessary instructions to prepare the written statement and the counsel has appeared and sought for the time to file the written statements. However, the counsel for the applicants was suffering from Severe back pain and pain in both the lower limbs and was unable to walk and seat in his office regularly as he was required to take complete bed rest and the applicants could not contact the counsel and follow up the dates and file the written statement and the matter remained unattained.

2. That the counsel was suffering from severe pain in his back and both the lower limbs since April, 2012 and was under the treatment of Dr. Nikhil Balanke at G.T. Memorial Hospital, Khamla, Nagpur

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from 28.04.2012. However the pain was increasing day by day and the counsel was advised to consult Orthopedic. The counsel accordingly consulted Dr. Sajal Mitra at Wockhardt, at North Ambazari Road, Nagpur on 05.05.2012 and was given treatment for 3 months. However the counsel even after the treatment at Wockhardt hospital was not getting relief from the back pain and pain in both the lower limbs was advised to consult Dr. Manoj Singhrakhia, at Shanta Spine Institute on 07.06.2012 and given treatment for one month even after taking all the opinions and treatments from the aforesaid doctors the counsel could not attained his routine works due to severe pains at the back and pain in both the lower limbs and the counsel was unable to walk on his feet.

3. The counsel thereafter the counsel was running from one doctor to the other for the reliefs and finally consulted Dr. S.M. Patil, at Ramdaspeth, Nagpur on 03.10.2012 and after several investigation it was found that the counsel for the applicant was suffering from presence of high percentage of Uric Acid in his blood which was the reason for severe pain at the back and the lower limbs. The counsel was under the treatment of Dr. S.M. Patil continuously for a period of three months. The counsel after a long treatment got relief from the back pain and pain in both the lower limbs and started his office work and attending

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the courts regularly from June, 2013. It is submitted that during the aforesaid one year several matters before the Hon'ble Civil Courts, Co-operative Courts, Consumer Courts and High Courts could not be attended and proceeded exparte. However, the counsel subsequently appeared and moved applications before the concerned courts and the courts have sympathetically considered the bonafide reasons for non-appearance and the exparte orders have been set aside by the courts. The nonappearance before this Hon'ble Court by the counsel was due to bonafide and genuine reasons."

The above pleadings show that, in substance the

justification for not attending the proceedings is that the judgment

debtors had entrusted the matter to their advocate, the respondent

no. 2 who was authorised in the matter was engaged in other

business work and was mostly at Indore and therefore he could

not contact the advocate after giving the Vakalatnama and he

could not give instructions because of which the written statement

could not be prepared and filed. The other reason is that the

advocate who was representing the judgment debtors was

suffering from illness of such a nature that he was not able to

move.

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 4]             Though various submissions are made by the advocates

for the petitioner and the respondents, I find that the justification

given by the judgment debtors for not attending the proceedings

of the civil suit cannot be accepted to set back the clock. It is not

disputed that the summons was served on the judgment debtors

and they had engaged an advocate to represent them. The

judgment debtors admit in para 2 of the application filed by them

under Order IX Rule 13 of the Code of Civil Procedure, that they

had not contacted the advocate and had not given him the

instructions and the documents. The process of Court cannot be

set at naught just for the asking by a party who commits persistent

default in attending the proceedings. The explanation given by the

judgment debtors is not sufficient to set aside the judgment and

decree passed in favour of the decree holder.