Bombay High Court
Messrs. Radio T. V. Commercials, ... vs Shobha Rajkumar Rajpal And Ors on 22 April, 2022
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN 18-AO-763-2017.odt
SHIVGAN Date:
2022.04.22
17:25:41
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.763 OF 2017
WITH
CIVIL APPLICATION NO.1027 OF 2017
James C. Pereira & Ors. ...Appellants
Vs
Shobha Rajkumar Rajpal & Ors. ...Respondents
WITH
APPEAL FROM ORDER NO.744 OF 2017
WITH
CIVIL APPLICATION NO.995 OF 2017
M/s. Radio T.V.Commercials,
Partnership Firm ...Appellant
Vs
Shobha Rajkumar Rajpal and Ors. ...Respondents
...
Mr. Mayur Khandeparkar with Ms. Gayatri Sharma i/by
S.K.Shrivastav and Co. for Respondent No.7 in AO/763/2017 and
for Appellants in AO/744/2017.
Mr. Girish Godbole, Senior Counsel with Mr. Ferhan Duhas with
Ms. Jyoti Ghag i/by Dua Associates for Respondents.
Mr. Sukand Kulkarni with Ms. Diksha Tripathi i/by Mr. Amit
Karkhanis for Respondent Nos.6 to 8 in AO 744/2017 and for
appellant in AO/763/2017.
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : APRIL 13, 2022.
PRONOUNCED ON: APRIL , 2022
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P.C. :
These Appeals From Order under Order 43 Rule 1(d) read
with 104 of the Civil Procedure Code, 1908, challenges the order
dated 1st September, 2017 by which the learned trial Judge declined
to set aside the ex-parte decree passed against the appellants.
2 Brief Facts are as under;
Respondent No.1 filed Short Cause Suit No.8582 of 1998
before this Court against the appellants, inter-alia, for decree of
declaration with respect to property called 'Ama House'. Appellants
had appointed "Daphtari Ferreira & Divan" as their advocates on
record before this Court and had instructed them to appear and file
Written Statement. Accordingly, Written Statement was filed in the
year 2006. Sometime, in the year 2015, appellants were informed
about passing of final judgment and decree in the said suit in the
Bombay City Civil Court. On enquiry, appellants were informed that
said suit was transferred to City Civil Court, Bombay in view of the
Bombay City Civil (Amendment) Act, 2012 and the decree was passed
on 23rd October, 2015. Whereafter, appellants moved Motion under
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Order 9 Rule 13 of the Code of Civil Procedure, 1908 ('CPC' for
short) for setting aside the ex-parte decree passed against them.
Notice of Motion No.4860 of 2015 was dismissed on 1 st September,
2015. Therefore, these Appeals From Order.
3 Heard Mr. Khandeparkar, learned counsel for the
appellants in Appeal From Order No.763 of 2017, Mr. Sukand
Kulkarni for the appellants in Appeal From Order No.744 of 2017
and Mr. Girish Godbole, learned counsel for respondents/original
plaintiffs.
4 Mr. Khandeparkar, learned counsel for the appellants
would submit that the appellants/defendants filed their Written
Statement and thereafter, issues were framed on 12 th June, 2015.
Pointing out Roznama dated 2nd July, 2015, Mr. Khandeparkar
submitted, on the said date, in absence of defendants, proceedings
were adjourned for recording evidence. Mr. Khandeparkar pointed out
that on 27th July, 2015, plaintiffs' affidavit in lieu of evidence, was
taken on record and the matter was adjourned for cross-examination/
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marking of documents. Mr. Khandeparkar submitted although the
affidavit of evidence was filed alongwith compilation of documents,
its' copy was not served on defendants. His next submission is that,
appellants could not attend the Suit Proceedings since the appearance
of the advocate of the appellants was not shown on the cause-list of
9th February, 2015, 12th June, 2015 and 2nd June, 2015. Mr.
Khandeparkar in support of his submission would rely on the copies
of cause-list of respective dates. Mr. Khandeparkar submitted that not
showing the name of the advocate for the appellants in the cause-list
was 'Sufficient Cause' to set aside the ex-parte decree under Order 9
Rule 13 of the CPC. Mr. Khandeparkar, relied on the judgment of the
Apex Court in the case of Harishankar 2001 (10) SCC 301. The issue
before the Apex Court was "Whether, not showing the name of the
advocate for the appellant in the cause-list is 'Sufficient Cause' to
set aside the ex-parte decree under Order 9 Rule 13 of the CPC" .
The Hon'ble Apex Court has held that ' advocates' non-appearance in
the case when the case is taken up on the ground that his name was
not shown in the cause-list is indeed a 'Sufficient Cause'. Thus, Mr.
Khandeparkar submitted that inspite of showing the 'Sufficient
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Cause', the trial Court declined to set aside the ex-parte decree and,
therefore, interference is called for. Nextly, he submitted that having
regard to the facts of the case, ex-parte decree be set aside and
parties be relegated, to trial at the stage of leading evidence, in-as-
much as the issues in the suit have been framed.
5 Mr. Godbole, learned Senior Counsel for the respondents,
submitted that suit in question was transferred to City Civil Court,
Greater Bombay on 1st December, 2012. Decree therein was passed on
23rd October, 2015. Yet, the application moved by the appellants on
18th December, 2015 seeking to set aside the ex-parte decree does not
disclose the reasons, which prevented them from attending the suit
proceedings since December, 2012. Mr. Godbole, therefore, submitted
that the impugned order requires no interference.
6 Herein, pursuant to Bombay City Civil (Amendment) Act
2012 and Notification dated 28th August, 2012, various suits as
specified in the Act pending in this Court were transferred to Bombay
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City Civil Court with effect from 1 st October, 2012. A list of matters
so transferred was put up on the web-site of the Bombay High Court.
Therefore, it cannot be said that the appellants were not aware about
transfer of the subject suit to the Bombay City Civil Court. However,
the fact remains, on 12th June, 2015 when issues were framed, names
of the appellants' advocate were not shown in the cause-list. Like-
wise on 2nd July, 2015, 27th July, 2015, 24th August, 2015 and 5th
September, 2015 and 23rd October, 2015, appellants' advocate name
was not shown in the cause-list. Therefore, it is to be held that the
appellants were prevented by 'Sufficient Cause' from appearing when
suit was called on for hearing. As such, it cannot be said, that the
defendants did not appear in proceedings deliberately. Apex Court in
the case of Harishankar (Supra) has held that 'not showing the name
of the advocate in the cause-list is a 'sufficient cause' to set aside
the ex-parte decree. Therefore, in consideration of the facts of the
case, in my view, interference in the impugned order is called for. I
hold that the appellants have shown 'Sufficient Cause' for setting
aside the ex-parte decree passed in Short Cause Suit No.8582 of
1998. As a result, the appeals are allowed. The impugned order
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dated 1st September, 2017 is quashed and set aside. In consequence,
the ex-parte decree dated 23 rd October, 2015 in Short Cause Suit
No.8582 of 1998 is quashed and set aside subject to cost of
Rs.25,000/- each in both the appeals payable to the plaintiffs within
four weeks from today. In the facts and circumstances of the case,
parties to the suit shall appear before the trial Court on 13 th June,
2022. Whereafter, trial Court shall proceed with suit to hold trial in
accordance with law and shall make an endeavour to dispose of the
suit preferably before 31st May, 2023. The Appeals From Order are
allowed and disposed of in aforesaid terms.
7 As the appeals itself are disposed of, nothing survives in
the applications therein and same are also disposed of.
(SANDEEP K. SHINDE, J.)
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