Shri Vitik Rajendra Raut (Minor) ... vs Shri Dhanraj Shripat Gote And ...
2021 Latest Caselaw 8451 Bom

                                                      1                                       WP115.19(j)

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

                                  WRIT PETITION NO. 115/2019

1]              Shri Vitik Rajendra Raut,
                Aged about 15 years, Occ. Nil.
2]              Rutuja Rajendra Raut,
                Aged about 13 years, Occ. Nil.
                Both applicants (petitioners) being minor through
                their natural guardian mother
                Smt. Rekha Rajendra Raut.
3]            Smt. Rekha Rajendra Raut,
              Aged about 40 years, Occ. Household
            ALL R/o Rajive Nagar, Hingna, Nagpur                               ....... PETITIONERS
                         ...V E R S U S...
1]              Shri Dhanraj Shripat Gote.
                Aged about 51 years, occ. Service.
                R/o.35 Empress Mill Quarter, Bezanbagh,
                Nagpur.
2]              Smt. Leelabai w/o Haridas Kolhe,
                Aged about 67 years. Occ. Household.
                R/o Amar Jyoti Nagar, Nagpur.
3]              Shri Pankaj s/o Vishnuji Kalamkar,
                Aged about 35 years. Occ. Service
                R/o Plot No.209, HUDCO Colony,
                Behind Police Station Kalmeshwar,
                Tah. Kalmeshwar, District Nagpur.
4]              Smt. Pradnya w/o Babarao Bagde,
                Aged about 37 years. Occ. Household,
                R/o. Nandagomukh, Tah. Saoner,
                District Nagpur.
                                                                         ....... RESPONDENTS
--------------------------------------------------------------------------------------------------------------------
Shri Shriram Deoras, Advocate for petitioners.
Shri Abhijeet Deshmukh, Advocate with Shri Ulhas Aurangabadkar, Advocate
for respondents.
-------------------------------------------------------------------------------------------------------------------




            ::: Uploaded on - 28/06/2021                                     ::: Downloaded on - 18/09/2021 04:37:57 :::
                                            2                         WP115.19(j)


                                               CORAM : A.S.CHANDURKAR, J.
                                               DATED : 25.06.2021
JUDGMENT

Rule. Rule made returnable forthwith. Heard the learned counsel

for the parties.

2. The order dated 07.09.2018 passed in M.J.C.No.29/2018 refusing

to condone delay in filing the application for setting aside the ex parte decree

passed in R.C.S.No.50/2016 is the subject matter of challenge in this writ

petition.

3. The respondents herein are the original plaintiffs who had filed

R.C.S.No.50/2016 for a declaration that the petitioners-defendants had no

right to encroach upon the suit property which was land bearing Survey

No.210 Mouza Khairi, Taluka Hingna, District Nagpur. A decree for

permanent injunction seeking to restrain the defendants from committing any

encroachment and disturbing the possession of the plaintiffs was also prayed

for. The trial Court by its judgment dated 31.03.2018 found that the evidence

led by the plaintiffs remained unchallenged and therefore after accepting the

same decreed the suit as prayed for. It is the case of the defendants that on

the basis of a report lodged by the plaintiffs on 17.06.2018 with Hingna Police

Station they were restrained from taking possession and getting the suit land

measured. On that day the defendants got knowledge of passing of the

3 WP115.19(j)

judgment by the trial Court. After obtaining certified copy of the said

judgment on 18.06.2018, they filed proceedings for setting aside the ex parte

decree under the provisions of Order IX Rule 13 of the Code of Civil

Procedure, 1908 (for short, the Code) along with an application for

condonation of delay. This application was opposed by the plaintiffs and by

the impugned order the trial Court rejected that application holding that there

was no sufficient explanation for the delay caused in moving the application

for setting aside the ex parte decree. Hence this writ petition.

4. Shri Shriram Deoras, learned counsel for the petitioners submitted

that in the application for condonation delay the defendants had stated that

they had not contacted their counsel when the suit was pending with the Civil

Court as a result of which the written statement could not be filed. The

defendants got knowledge about the aforesaid decree only on 17.06.2018

when they were summoned to the police station with regard to the dispute

relating to the measurement of the land in question. The application was

filed immediately on 22.06.2018 stating that though the decree was passed on

31.03.2018, the defendants got knowledge only on 17.06.2018 and hence

there was no intentional delay. The trial Court despite observing that the

Court should adopt liberal view wrongly held that no reason for the cause of

delay was mentioned in the application. Placing reliance on the decision in

Videocon International Ltd. Vs. Video Links and others 2006 (5) Mh. L J 425

4 WP115.19(j)

it was submitted that the decree as passed was ex parte in nature and hence

the delay as caused ought to have been condoned to grant an opportunity to

the defendants to contest the proceedings on merits. It was therefore prayed

that the impugned order was liable to be set aside and the delay in seeking

setting aside of the ex parte decree ought to be condoned.

5. On the other hand, Shri Abhijeet Deshmukh learned counsel for the

respondents supported the impugned order. He submitted that the trial Court

rightly found that that no sufficient reasons had been assigned for having the

delay condoned. The defendants were negligent and had failed to prosecute

the suit when it was pending before the Civil Court. Moreover since the suit

summons had been duly served on the defendants and they having failed to

participate in the suit, the decree could not be said to be ex parte in nature.

In that regard, he placed reliance on the decision in CliniRX Research Pvt. Ltd.

Vs. Bicare Limited and others 2018(3) BCR 388 and submitted that when the

decree itself was not ex parte there was no question of seeking condonation

delay in filing such application before the trial Court. It was thus submitted

that no interference with the impugned order was called for.

6. Having heard the learned counsel for the parties and after giving

due consideration to the rival submissions, I am of the view that the order

passed by the trial Court is liable to be set aside and the delay in filing the

application for setting aside the ex parte decree deserves to be condoned.

5 WP115.19(j)

Taking the second contention raised by the learned counsel for the

respondents that the decree as passed was not ex parte, it is seen that that

admittedly the defendants were duly served with the suit summons and

thereafter were granted opportunity to file their written statement. However

as the written statement was not filed the suit proceeded without their written

statement. The plaintiff no.1 led his evidence which remained unchallenged

after which the trial Court proceeded to decree the suit. In this regard, it is to

be noted that before the trial Court it was only the plaintiffs who had led the

evidence. The defendants did not lead any evidence whatsoever and

therefore as held in Videocon International Ltd. (supra) the course adopted by

the trial Court of proceeding further with the matter was referable to the

provisions of Order XVII Rule 2 of the Code. It has been further held in the

aforesaid decision that the decree passed in such a case would be ex parte in

nature.

7. Reference in this regard can be made to the decision in Regal

Talkies, Aurangabad and ors. Vs. State Bank of India, Aurangabad 2011(2)

Mh L J 564 wherein it has been held that if the defendant does not appear on

the date of hearing and no evidence has been led on behalf of the defendant

the judgment and decree passed by the Court on the uncontroverted evidence

of the plaintiff would be an ex parte decree and not an order on merits. In

such situation it has been held that an application under the provisions of

6 WP115.19(j)

Order IX Rule 13 of the Code for setting aside such decree is maintainable.

The decision in CliniRX Research Pvt. Ltd. (supra) relied upon by

the learned counsel for the respondents is clearly distinguishable in view of

the facts of that case. The question considered therein was whether failure of

the defendant to appear before the transferee Court and whether the

pronouncement of the judgment by such Court without hearing the defendant

would render the decree ex parte ? The facts of the said case indicate that the

trial Court heard arguments of the plaintiff. The Advocate for the defendant

despite being present in the Count did not advance any argument. The trial

Court therefore posted the suit for judgment on 01.12.2015. It was then

adjourned to 28.12.2015 after which the suit was transferred to another

Court. The transferee Court heard the plaintiff and decreed the suit on

28.07.2016. In this context after referring to the provisions of

Order XVIII Rule 15 of the Code, it was held that the decree passed in such

circumstances would not an ex parte decree. In the light of the facts stated

herein above this decision is clearly distinguishable and therefore does not

support the stand of the respondents. Thus in view of the decisions in

Videocon International Ltd. and Regal Talkies Ltd (supra), it is held that the

decree passed by the trial Court on 31.03.2018 was an ex parte decree.

8. Coming to the aspect of delay in applying for setting aside such

decree, it is seen that the defendants had pleaded that they had not contacted

7 WP115.19(j)

their counsel when the suit was pending before the trial Court as a result of

which the written statement could not be filed. They have then pleaded about

the date of getting knowledge of the decree on 17.06.2018 and filing of

application under Order IX Rule 13 of the Code on 22.06.2018. The averments

made in the application were denied by the plaintiffs in view of the fact that

the trial Court on 06.08.2016 had passed no written statement order against

the defendants. The trial Court while refusing to condone the delay has

observed that the application did not disclose a single reason as to what

precluded the defendants from consulting their lawyer for getting knowledge

of the decree. It is seen that the defendants had prayed for setting aside the

ex parte decree passed on 31.03.2018 and hence the delay in making such

application from 31.03.2018 ought to have been taken into consideration.

The defendants had stated that they had failed to contact their counsel when

the suit was pending and that they got knowledge only when they were

summoned to the police station. Their conduct prior to passing of the decree

on 31.03.2018 could be a relevant consideration when the application under

the provisions of Order IX Rule 13 of the Code would be considered. Since it

is pleaded that on 17.06.2018 the defendants got knowledge of the passing of

the decree and the lodging of the police complaint on that date was not

denied by the plaintiffs, it is found that the delay of 53 days in filing the

application for setting aside the ex parte decree is liable to be condoned

subject to imposing costs on the defendants. The trial Court committed an

8 WP115.19(j)

error in holding that no reason was mentioned in the application for

condonation of delay, when it was a specific case of the defendants that there

was failure on their part to contact their counsel. This could indicate some

negligence on the part of the defendants for which the plaintiffs are liable to

be compensated with costs. Moreover considering the nature of decree as

passed, an opportunity to prosecute the application under the provisions of

Order IX Rule 13 of the Code on merits is liable to be granted to the

defendants.

9. In the light of the aforesaid discussion, the order dated 07.09.2018

passed below Exhibit 1 in M. J. C. No.29/2018 is set aside. The delay of 53

days in filing the application for setting aside of the ex parte decree is

condoned subject to the defendants paying costs of Rs.5,000/-(Rs.Five

thousand) to the plaintiffs within a period of four weeks from today. If such

costs are paid within the aforesaid period the trial Court would be free to

proceed with the adjudication of the application filed under the provisions of

Order IX Rule 13 of the Code. It is made clear that if such occasion arises the

application under the provisions of Order IX Rule 13 of the Code shall be

decided on its own merits without being influenced by the present order. Rule

is made absolute in aforesaid terms.

JUDGE Andurkar..