Bombay High Court
Maneklal Keshavlal Khatri vs Jayantilal Bhanji Shah And Ors on 19 October, 2022
Bench: Nitin W. Sambre
(19)-WP-796-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
CIVIL APPELLATE JURISDICTION
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
2022.10.21
18:53:32
+0530
WRIT PETITION NO.796 OF 2022
Shri. Maneklal Keshavlal Khatri ..Petitioner
Versus
Mr. Jayantilal Bhanji Shah & Ors. ..Respondents
Mr. Sujit S. Mashal a/w Huzefa Nasikwala i/by Nasikwala Law
Office, for the Petitioner.
Mr. Joel D'souza a/w Pierre Fernandes i/by Ivor Peter D'cruz, for the
Respondent Nos.1 & 4.
CORAM : NITIN W. SAMBRE, J.
DATE : 19th OCTOBER, 2022
P.C.
1. This petition is by the defendant in RAE Suit No.370 of
2017 which is for eviction under the provisions of Maharashtra Rent
Control Act.
2. Admittedly, the applicant/defendant is residing in USA
and as such was served through substituted service on 28 th
November, 2017.
3. After service was effected on 28 th November, 2017
through substituted service, appearance was caused by the applicant
in July 2018 through Exh.10.
4. As the written statement was not tendered by the
applicant, suit was ordered to be proceeded without WS on 26 th
June, 2018.
BGP. 1 of 6
(19)-WP-796-22.doc.
5. On 28th November, 2018, the applicant moved an
application for setting aside "No WS" order which was rejected by
the Judge, Small Causes Court on 7th October, 2019.
6. Petitioner feeling aggrieved preferred revision being
Revision Application No.39 of 2020 which was also rejected on 12 th
March, 2020. The attempt on the part of the applicant to get the
said order of rejection reviewed was also turned down vide order
dated 9th August, 2021 passed by the Division Bench of the Small
Causes Court. As such, present petition is questioning the order
dated 9th August, 2021 passed in Review Application, order dated
12th March, 2020 passed in Revision Application No.39 of 2020 and
the order of the Small Causes Court delivered on 7 th October, 2019
below Exh.15 an application for setting aside "No WS" order.
7. Contentions of counsel for the petitioner are, the
petitioner is tenant in the suit premises since 1957 and as on date
aged about 91 years. According to him, sometime back, the
petitioner went to his son who is residing in USA and developed
various health issues, as such, he could not return to India.
According to him, through a neighbour, namely Mr. Atul he came to
know about service of substituted service and as such, he engaged a
lawyer Mr. M. A. Chandan. He would urge that in spite of there
being instructions to the said lawyer, he was not diligent not only to
appear in the suit within time but also has failed to communicate to
the applicant the procedure to be adopted to defend the suit.
BGP. 2 of 6
(19)-WP-796-22.doc.
According to him, because of failure on the part of the lawyer in
giving proper legal professional advise, the suit was proceeded
without WS. He would urge that there was no intention on the part
of the applicant to delay the suit proceedings by not filing written
statement within the time stipulated. His further contentions are,
the Trial Court has failed to consider the fact that the relevant
documents were very much available including that of passport copy
of the Power of Attorney was sufficient cause which restrained the
applicant from personally appearing in the suit proceedings. He
submits that though the passport was made available to the lawyer
appearing in the Trial Court, it is his failure to produce the same
before the Court. However, according to him, the Power of Attorney
was duly produced on record of the Trial Court. As such, drawing
support from the judgment of the Apex Court in the matter of
Rafique & Anr. Vs. Munshilal & Anr. reported in (1981) 2 SCC 788
contentions are, failure of lawyer, litigant may not be made to suffer
and as such order of the suit being proceeded without WS needs to
be interfered with. Counsel would also urge that the applicant can
be put to reasonable cost for submission of written statement within
stipulated time. He would further urge that if opportunity is
granted, applicant shall adhere to the schedule so that the suit can
be expeditiously decided.
8. Counsel for the respondent/plaintiff would oppose the
prayer, as according to him, the claim of the applicant is based on
forged Power of Attorney. He would further urge that the Power of
BGP. 3 of 6
(19)-WP-796-22.doc.
Attorney is shown to be executed in India when admittedly the
applicant is in USA.
9. I have appreciated the said submissions.
10. The fact remains that it can be inferred from the record
that the applicant was served through substituted service on 28 th
November, 2017, as admittedly even today he is residing in USA.
The fact that he was having knowledge about the service of the suit
summons was also established pursuant to the undisputed fact that
the neighbour has informed him about pasting of the suit summons.
As such, it was expected of the applicant to enter appearance
immediately and to tender the written statement within thirty days
which admittedly he has failed to.
11. Though the lawyer has claimed to have been engaged in
March, 2018, however, the said lawyer has filed his appearance
almost after about one year from the substituted service i.e. 28 th
November, 2017. In spite of the aforesaid, petitioner has failed to
place on record written statement resulting into passing No WS
order dated 26th June, 2018.
12. On 28th November, 2018, the petitioner has moved an
application for setting aside No WS order vide application Exh.15
which was rejected on 7th October, 2019 confirmed in Revision on
12th March, 2020.
BGP. 4 of 6
(19)-WP-796-22.doc.
13. The Small Causes Court while rejecting the prayer of the
petitioner for setting aside NO WS order, has noted that there is
delay of 335 days for which the only explanation coming forth is (a)
the petitioner is residing in USA; and (b) that he was not properly
advised.
14. As per provisions of Order VIII of CPC, the powers are
vested with the Court permitting filing of written statement beyond
the limit of ninety days provided exceptional case must be spelt out.
The powers to extent the period is not required to be frequently and
routinely exercised so as to nullify the statutory period fixed under
Order VIII Rule 1 of CPC. The Code of Civil Procedure has
intentionally used the word 'shall' in Order VIII Rule 1 so as to
signify that in exceptional cases period can be extended. The object
behind fixing the said period is making available speedy justice to
the parties who are litigating before the Court.
15. As far as case in hand is concerned, the petitioner
appears to be defending the suit through Power of Attorney which
was notarized in India and also allegedly in USA. The said
document appears to be under doubt, as the document was
executed and notarized when the petitioner himself is in USA. Of
course the said issue can be looked into by the Small Causes Court
while dealing with the trial. However, this Court is of the view that
the petitioner was aware about the service of suit summons on him
through substituted service as is reflected from the claim put forth
BGP. 5 of 6
(19)-WP-796-22.doc.
and the instructions issued to the lawyer in March, 2018 to appear.
The fact remains that even if the lawyer has appeared in the matter
the written statement was not filed for a period of almost eleven
months. Merely because the petitioner is residing in other country
will not give him any extra leverage. The Power of Attorney based
on which the suit is sought to be defended even if not produced
before the Revisional Court, same will have hardly any significance
over the merits of the petitioner. However, it has to be borne in
mind that the petitioner has tried to blame his lawyer for failure to
give appropriate advise. However, the petitioner has neither
entered into any communication with such lawyer for the purpose
of demonstrating that the petitioner was not given timely advise. As
such, so as to overcome his own defaults the petitioner is trying to
blame his own lawyer.
16. In this view of the matter, it cannot be said that the
petitioner has established sufficient cause which was beyond his
control for not filing the written statement within time. There is
hardly any material on record to infer that the petitioner's prayer for
setting aside No WS order warrants interference. Rather the delay
cause appears to be intentional. That being so, no case for
interference in extraordinary jurisdiction is made out.
17. The petition as such fails, dismissed.
[NITIN W. SAMBRE, J.]
BGP. 6 of 6
