Bombay High Court
Surajben Chamaklal Gandhi, Thr. ... vs Bholanath Maruti Patil on 2 February, 2023
Bench: G. S. Kulkarni
Digitally
signed by
PRAJAKTA
503-aost 31834-22.odt
PRAJAKTA SAGAR
SAGAR VARTAK
VARTAK Date:
2023.02.06
15:07:34
+0530
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (STAMP) NO. 31834 OF 2022
WITH
INTERIM APPLICATION (STAMP) NO. 31837 OF 2022
WITH
INTERIM APPLICATION (STAMP) NO. 31840 OF 2022
Surajben Chamaklal Gandhi through POA ..Appellant
Vs.
Shri. Bholanath Maruti Patil ..Respondent
__________
Mr. I. M. Khairdi for Appellant.
Mr. Ranjit Shinde for Respondent.
__________
CORAM : G.S. KULKARNI, J.
DATE : FEBRUARY 02, 2023
P.C.:
1. Not on board. Taken on board on a praecipe being moved on
behalf of the Appellant.
2. Leave to amend to place on record appropriate copy of the
impugned order. Amendment be carried out forthwith.
3. This appeal has been filed against an order dated 20 July, 2022
passed by the learned Civil Judge, Senior Division, Kalyan whereby an
application filed by the appellant under Order IX Rule 13 of the Code of
Page 1 of 4
-------------------------
02 February, 2023
503-aost 31834-22.odt
Civil Procedure for setting aside of an ex-parte decree dated 04 February,
2015 passed in the proceedings of Regular Civil Suit No. 727 of 2012 is
dismissed by the learned trial Judge for the following reasons:-
" The present proceeding is filed for setting aside ex-parte
decree as per order IX rule 13 of Civil Procedure Code. Vide order
dated 10/11/2021, the judgment and decree dated 04/02/2015
passed in Reg. Civil Suit No. 727/2012 is stayed and the matter is
posted for evidence for applicant. On 04/04/2022, the applicant
sought adjournment but till today she has not adduced evidence. It
appears that applicant lost her interest to proceed with the present
proceeding. Hence, application is dismissed for want of evidence.
Accordingly, application is disposed of."
4. Mr. Khairdi, learned counsel for the appellant has drawn the Court's
attention to the averments as made in the memo of appeal. He has also
submitted that in the facts and circumstances of the case the impugned
order passed by the learned Civil Judge is too harsh for the appellant to
suffer.
5. Learned counsel for the respondent has supported the impugned
order. He submits that the appellant was certainly not diligent in leading
evidence as observed by the trial Judge in the impugned order.
6. Having heard learned counsel for the parties and having perused
the record as also the impugned order, in my opinion, considering the
interest of justice and the facts of the case, an opportunity ought to be
Page 2 of 4
-------------------------
02 February, 2023
503-aost 31834-22.odt
granted to the appellant to prosecute the application filed by the appellant
under Order IX Rule 13 of the Code of Civil Procedure, however, subject
to condition that the appellant without seeking any adjournment shall lead
evidence and complete her evidence within a period of 30 days from the
first appearance before the Court.
7. The appeal is accordingly disposed of by the following order:-
ORDER
i. The impugned order dated 20 July, 2022 passed by the learned
Civil Judge, Senior Division, Kalyan, below Exhibit 1 in Miscellaneous
Application No.102 of 2015 is set aside.
ii. The appellant shall now diligently prosecute her application under
Order IX Rule 13 of the Code of Civil Procedure without seeking any
adjournment and lead evidence and appropriate order would be passed by
the Civil Judge.
iii. The appellant shall also complete leading her evidence within a
period of 30 days from the day she appears before the Court by presenting
the present orders.
iv. The parties are directed to appear before the trial Court on 10
February, 2023.
v. All contentions of the parties on merits of the pending application
-------------------------
02 February, 2023
503-aost 31834-22.odt
are expressly kept open.
vi. Interim Application (Stamp) No. 31837 of 2022 and Interim
Application (Stamp) No. 31840 of 2022 would also not survive in view of
disposal of the appeal, the same are accordingly disposed of.
vii. In so far as Interim Application (Stamp) No.31837 of 2022 is
concerned, the appellant is permitted to raise all contentions or move such
appropriate application before the learned trial Judge.
8. It is informed by Mr. Khairdi that pending the application filed by
the appellant under Order IX Rule 13 of the Code of Civil Procedure, the
ex-parte decree dated 04 February, 2015 passed by the Civil Judge in the
proceedings of Regular Civil Suit No. 727 of 2012 was stayed and by
virtue of the impugned order, stay stood vacated. In my opinion, it is in
the interest of justice, that the stay to the decree ought to be continue till
the application of the appellant's application is decided. Ordered
accordingly.
9. The above proceedings are disposed of in the above terms. No
costs.
[G.S. KULKARNI, J.]
-------------------------
02 February, 2023
