Shalen Dmello vs Ruby Victoria ...
2023 Latest Caselaw 7425 Bom

2023:BHC-AS:20883

                                                                                    ao 50 of 2023.doc

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION
                              APPEAL FROM ORDER NO.50 OF 2023
                                            WITH
                             INTERIM APPLICATION NO.577 OF 2023

            Shalen D'Mello                                         ...       Appellant
                  versus
            Ruby Victoria Ferreira and Ors.                        ...       Respondents

            Mr. Sanskar Marathe, for Appellant.
            Mr. C.J.Joveson, for Respondents.

                                CORAM                       :      N.J.JAMADAR, J.
                                RESERVED ON                 :      7 JUNE 2023
                                PRONOUNCED ON               :      26 JULY 2023

            JUDGMENT :

1. This appeal is directed against an order dated 9 November 2022 passed

by the learned Judge, City Civil Court in Notice of Motion No.931 of 2021 in S.C.Suit

No.3513 of 2010, whereby the said Notice of Motion taken out by the Appellant-

original Defendant No.1(d) for setting aside the decree under the provisions of Order

IX Rule 13 of the Code of Civil Procedure, 1908 came to be dismissed.

2. The background facts can be stated, in brief, as under :

2.1 For the sake of convenience, the parties are hereinafter referred to in the

capacity in which they were arrayed before the trial Court. Suit No.3513 of 2010 was

instituted for partition and separate possession of land admeasuring 359.4 sq. mtrs. out

of CTS No.262, Sahar Village, Andheri (E), Mumbai (suit plot). The original Plaintiff

- deceased Respondent No.1 claimed to be the only daughter of late Joseph D'Souza.

            SSP                                                     1/19
                                                                            ao 50 of 2023.doc

The Plaintiff asserted that late Joseph and his brother Philip D'Souza were the holders

of the ancestral properties including the suit plot. Both Joseph and Philip passed

away. The Defendants were the successors in interest of late Philip D'Souza. Joseph

had ½ share in the suit plot. Defendant Nos.1 to 4 started to carry out extensive

alterations in the suit plot without obtaining permission from the planning authority.

Initially, the Plaintiff had instituted Suit No.627of 2008 to restrain the Defendants

from developing the suit plot. Later on, as the Defendants declined to give Plaintiff's

½ share in the suit plot, the Plaintiff was constrained to institute a suit for declaration

and partition of the suit plot by metes and bounds.

2.2 Defendant Nos.1 and 3 resisted the suit by filing written statement. It

was contended, inter alia, that the Plaintiff had sold the joint family property situated

at Survey No.27, Hissa No.6, CTS No.199 admeasuring 675 sq. mtrs., and

appropriated the entire consideration and that the father of the Plaintiff had sold an

area admeasuring 166 sq.mtrs. out of the plot CTS No.262 which fell to his share and,

therefore, the Plaintiff's claim of ½ share in the suit plot, was untenable. By a separate

written statement, Defendant Nos.2, 4 to 6 and 8 also resisted the suit by raising

identical grounds of defence.

2.3 It seems that after the issues were framed, the Defendants did not

participate in the trial. Eventually, the suit came to be decreed by judgment and order

dated 15 June 2008 holding that the Plaintiff has 50% share in the suit plot and she was

SSP 2/19 ao 50 of 2023.doc

entitled to partition and separate possession of the said share. A preliminary decree

was ordered to be drawn up.

2.4 The Plaintiff filed an Execution Application, being Application No.128

of 2019. It seems, upon being served with the notice of the execution application, the

Appellant-Defendant No.1(d) took out a Notice of Motion No.931 of 2021 to set aside

the decree.

2.5 The substance of the Notice of Motion was that initially the Advocate,

who was appointed by the Defendants, kept them apprised of the proceedings in the

suit and sought instructions. The Defendants bona fide believed that the Advocate

would diligently pursue the matter and protect their interest. However, slowly and

gradually the Advocate refused to take their calls. They became aware of the passing

of the decree only when Defendant No.4 was served with the notice of the execution

application on 27 November 2019. Hence, the application for setting aside the decree,

under Order IX Rule 13 of the Code, 1908.

2.6 The Notice of Motion was resisted by the Plaintiff contending, inter alia,

that the Defendants were making wild allegations against their Advocate mala fide.

They were not diligent in defending the suit. There was no explanation for the huge

delay in filing the application for setting aside the decree even after one of the

Defendants was served with the notice of the execution application. The Plaintiff,

thus, asserted that the Defendants have not made out a sufficient cause for

SSP 3/19 ao 50 of 2023.doc

condonation of delay, nor there was any justifiable ground to set aside the decree.

2.7 After appraising the affidavit in support of the Notice of Motion, reply

thereto, material on record and the submissions canvassed across the bar, the learned

Judge, City Civil Court was persuaded to dismiss the Notice of Motion opining, inter

alia, that the reasons assigned by the Defendants of negligence or remissness on the

part of their Advocate, in the circumstances of the case, did not constitute sufficient

cause for either condonation of delay or for setting aside the decree. The learned

Judge was of the view that the contention of the Defendants that their erstwhile

Advocate was refusing to take their calls was, in itself, sufficient to cause alarm to them

and rush to the Court to defend the suit. Secondly, since the Defendants had not

proceeded against the learned Advocate for the deficiency in the services before the

Consumer Forum, mere lodging of the complaint of professional misconduct against

the erstwhile Advocate was not sufficient to bolster up the claim of the Defendants.

Thirdly, the delay in filing the Notice of Motion since the date of the service of the

Notice of execution application remained unexplained. Therefore, the Notice of

Motion did not deserve to be entertained.

2.8 Being aggrieved, Defendant No.1(d) is in Appeal.

3. I have heard Mr. Sanskar Marathe, learned Counsel for the Appellant

and Mr. Joveson, learned Counsel for the Respondents at some length. The learned

Counsel took the Court through the pleadings, the impugned order and the judgment

SSP 4/19 ao 50 of 2023.doc

passed by the learned Judge in Suit No.3513 of 2010. Copy of the roznama of the

proceeding in Suit No.3513 of 2010 was also tendered for the perusal of the Court.

4. The learned Counsel for the Appellant strenuously submitted that the

approach of the learned Judge, City Civil Court in dismissing the Notice of Motion by

doubting the correctness of the reason of remissness on the part of the Defendants'

erstwhile Advocate for not filing the complaint before the Consumer Forum, is wholly

unsustainable. The learned Judge lost sight of the fact that no sooner the Defendants

realized the professional misconduct on the part of their erstwhile Advocate, a

complaint was lodged with the disciplinary committee of the Bar Council of

Maharashtra and Goa. This factor was unjustifiably discarded by the learned Judge on

an incorrect premise that the Defendants ought to have proceeded against the

Advocate before the consumer forum.

5. Secondly Mr. Marathe would urge, the aspect of delay in filing the

Notice of Motion was not properly appreciated by the City Civil Court in the light of

the well recognized position in law. The learned Judge, City Civil Court, lost sight of

the fact that the refusal to condone delay and set aside the ex-parte decree would

render the Defendants remediless. The object of providing limitation is not to destroy

the rights of the parties. Therefore, the prayer to condone the delay in taking out the

Notice of Motion ought to have been liberally construed. To bolster up this

submission, Mr. Marathe placed a strong reliance on the decision of the Supreme

SSP 5/19 ao 50 of 2023.doc

Court in the case of N. Balakrishnan Murthy V/s. M. Krishnamurthy1.

6. Mr. Marathe would further submit that having noted the statement made

by the erstwhile Advocate of the Defendants (as recorded in the Roznama dated 2

December 2018) that the learned Advocate had not received instructions from the

Defendants since long time, the Court could not have proceeded with the suit without

issuing notice to the Defendants. It was incumbent on the part of the learned

Advocate to seek discharge and, thereafter, the Court ought to have issued notice to

the Defendants. All these aspects were not adequately considered by the learned

Judge, urged Mr. Marathe.

7. In opposition to this, Mr Joveson, learned Counsel for the Respondent

No.1 stoutly supported the impugned order. It was submitted with a degree of

vehemence that the Appellant-Defendants have deprived the Respondents/Plaintiff of

her legitimate right in the suit plot by deliberately delaying the disposal of the suit for a

number of years. The Defendants deliberately did not participate in the suit and now

to cover up their own negligence and default, the Defendants are making reckless and

mala fide allegations against their erstwhile Advocate. Such conduct of the parties,

according to Mr. Joveson, does not deserve to be countenanced.

8. Mr. Joveson laid emphasis on the fact that ample opportunities were

given by the trial Court before passing the impugned decree. The statement of the

1 AIR 1998 SC 3222

SSP 6/19 ao 50 of 2023.doc

erstwhile Advocate for the Defendants that he was not receiving instructions from the

Defendants, according to Mr. Joveson, indicates that the Defendants were not

interested in defending the suit, and, therefore, the learned was constrained to make

such statement. Now the Defendants cannot be permitted to derive an undue

advantage from the said statement, which in effect shows the lack of diligence on the

part of the Defendants.

9. I have given careful consideration to the rival submissions.

10. A two fold consideration is warranted. First, the aspect of delay in filing

the Notice of Motion seeking setting aside of the decree. Second, the sufficiency of

the cause ascribed by the Appellant-Defendants for non-appearance when the suit was

called on for hearing. Under Article 123 of the Limitation Act, 1963, the 30 days

period of limitation to set aside the decree passed ex-parte begins to run from the date

of the decree or where the summons or notice was not duly served when the applicant

had knowledge of the decree. In the case at hand, the Defendants did appear in

response to the summons and had also filed written statement.

11. The Defendants approached the Court with a case that they were

unaware of the proceedings in the suit as the Advocate appointed by them did not

apprise them of the developments in the proceedings, and, therefore, they could not

appear before the Court when the suit was posted for recording evidence and,

eventually, an ex-parte decree came to be passed. The Defendants have further

SSP 7/19 ao 50 of 2023.doc

asserted that upon realizing the alleged misconduct on the part of their Advocate, they

have lodged a complaint with the disciplinary committee of the Bar Council of

Maharashtra and Goa.

12. The learned Judge was not persuaded to accept the aforesaid explanation

sought to be offered on behalf of the Defendants as the concerned Advocate had made

a statement before the Court on 2 December 2018 that he had not received

instructions from the Defendants since a long time. The learned Judge, City Civil

Court was thus of the view that the said statement made on behalf of the Defendants

indicated that the learned Advocate was taking steps and the Defendants were not

giving instructions to the said Advocate.

13. Whether the aforesaid approach is justifiable ? I have carefully perused

the roznama of the suit. It appears that the learned Advocate for the Defendants had

not appeared before the Court since the suit came to be posted for admission and

denial of documents but once, that is on 2 December 2018, on which day the learned

Advocate made the statement that he had not received instructions from the

Defendants since long and sought an adjournment as a last chance.

14. It is pertinent to note that thereafter also, the learned Advocate did not

appear before the Court and seek discharge in conformity with the provisions

contained in the Code and the Rules framed under Section 34 of the Advocates Act,

1961. When an Advocate does not get requisite instructions to prosecute or defend the

SSP 8/19 ao 50 of 2023.doc

proceedings from the concerned party, the recognized course is to seek discharge after

giving intimation to the concerned party. A bare statement before the Court that the

Advocate did not get instructions from the party is not a substitute for seeking

discharge in the manner known to law. Such a course leads to a situation of the

present nature where the court proceeds on the premise that the non-appearing party

does not wish to prosecute the proceedings. Ideally, in a situation of the present

nature, the Court ought to called upon the concerned Advocate to get discharge after

following the procedure envisaged by the Rules. Such a course rules out the

possibility of prejudice to a party.

15. A learned Single Judge of this Court in the case of Govinda Bhagoji

Kamable and Ors. V/s. Sadu Bapu Kamable and Ors.2 had an occasion to consider

the question as to whether the appellate court could dismiss the appeal for default on

the basis of pursis of no instructions filed by the Advocate for the Appellants when the

Advocate had not obtained discharge ? After adverting to the provisions contained in

Rule 4 of Order III of the Code, 1908 and the Rules framed under Section 34(1) of the

Advocates Act, 1961, the learned Single Judge in terms observed that the practice of

the courts taking cognizance of a no instruction pursis which is filed without following

the procedure laid down by the rules framed by this Court is to be deprecated. An

Advocate cannot simply walk out of a proceeding only by filing such no instruction

2 2005 (1) Mh.L.J.651

SSP 9/19 ao 50 of 2023.doc

pursis. He owes a duty to his client to appear for him in the proceedings till his

appointment is terminated by an order of the Court. If the court intended to treat no

instruction pursis as an application for discharge of the Advocate, the Court ought to

have directed the Advocate to give intimation in writing to his client as required by the

Rules. If the court intended to grant discharge to the Advocate, notice to the

Appellant ought to have been issued by the Court after accepting the no instruction

pursis. The appeal ought not to have been dismissed for default on filing of such

pursis.

16. The aforesaid enunciation of law governs the case at hand as well. In the

instant case, the Court recorded a statement made by the Advocate that he had not

been receiving instructions since long, instead of a formal no instructions pursis.

Thereafter, the learned Advocate did not appear for the Defendants, though he had

sought an adjournment by way of a last chance. In the circumstances, the court ought

to have issued notice to the Defendants if it construed that the non-appearance of the

Advocate as the act of discharge.

17. The matter can be looked at from another perspective. It is well

recognized that ordinarily a party should not suffer on account of fault or default in

appearance of the Advocate whom it had entrusted its case. When a party does

everything in its power to participate in the proceedings, by engaging an Advocate and

entrusting the brief, it is considered unjust to punish such a party for default in

SSP 10/19 ao 50 of 2023.doc

appearance on the part of its Advocate. Generally, the courts lean in favour of

condoning the delay and restoring the proceedings where there is material to show

that the default is attributable to the Advocate engaged by a party. Such approach is in

accord with the well-recognized principle that the procedure is handmaid of justice

and it should not be allowed to score a march over substantive justice.

18. A profitable reference in this context can be made to a judgment of the

Supreme Court in the case of Secretary, Department of Horticulture, Chandigarh

and Anr. V/s. Raghu Raj3, wherein the principle that a party should not be made to

suffer due to default on the part of his Advocate was expounded with reference to the

previous pronouncements. Paragraphs 23, 24 and 28 are material and, hence,

extracted below :

"23. Now, it cannot be gainsaid that an advocate has no right to remain absent from the Court when the case of his client comes up for hearing. He is duty bound to attend the case in Court or to make an alternative arrangement. Non-appearance in Court without `sufficient cause' cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the Court and can never be countenanced.

24. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate.

28. From the case law referred to above, it is clear that this Court has always insisted advocates to appear and argue the case as and when it is called out for hearing. Failure to do so would be unfair to the client and

3 (2008) 13 SCC 395

SSP 11/19 ao 50 of 2023.doc

discourteous to the Court and must be severely discountenanced. At the same time, the Court has also emphasized doing justice to the cause wherein it is appropriate that both the parties are present before the Court and they are heard. It has been noted by the Court that once a party engages a counsel, he thinks that his advocate will appear when the case will be taken up for hearing and the Court calls upon the counsel to make submissions. It is keeping in view these principles that the Court does not proceed to hear the

matter in absence of the counsel." (emphasis supplied ) .

19. It is necessary at this juncture itself to record that the Court does not

profess to delve into the correctness of the allegations of the Defendants against their

erstwhile Advocate. This appeal is neither appropriate proceeding nor the stage is ripe

to delve into those allegations. What has to be appreciated is whether there is prima

facie material to show that the Defendants did make a grievance about the alleged

remissness or negligence on the part of their erstwhile Advocate.

20. As noted above, the Defendants lodged a complaint of professional

misconduct with the disciplinary committee of the Maharashtra and Goa on 6 March

2020. The veracity of the allegations undoubtedly was not the remit of the inquiry in

the Notice of Motion. However, the sufficiency of cause sought to be ascribed by the

Defendants could not have been jettisoned away on the ground that the Defendants

ought to have filed a complaint of deficiency in service against their erstwhile

Advocate before the Consumer Forum.

21. The learned Judge, City Civil Court clearly misdirected himself in

SSP 12/19 ao 50 of 2023.doc

discarding the grievance of the Defendants for not invoking the remedies under the

Consumer Protection Act. At any rate, a complaint to the Bar Council cannot be said

to be an inappropriate recourse. This circumstance ought to have been given

deserving weight.

22. On the aspect of the delay in filing the Notice of Motion, the City Civil

Court has found that there was no explanation, much less satisfactory one, for

condonation of delay. Firstly, there was delay of about four months in lodging

complaint with the Bar Council and, secondly, there was a time lag of about 16 months

in filing the Notice of Motion after one of the Defendants entered appearance in the

execution application on 28 November 2019.

23. The learned Judge, City Civil Court was, however, alive to the fact that

the Covid-19 Pandemic intervened, and, thus, observed that there was no satisfactory

explanation from the date of the service of notice of the execution application on one

of the Defendants (27 November 2019) to the imposition of lock-down restrictions in

the month of March 2020; roughly a period of four months.

24. It is trite an Application for condonation of delay, be it in preferring an

appeal or setting aside of an order of dismissal of a proceeding for want of prosecution

or on ex-parte decree receives a liberal consideration. Overarching principle which

informs the exercise of the discretion is that the lis should be decided on merits rather

than on technicalities and default, so as to advance the cause of substantive justice.

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                                                                                       ao 50 of 2023.doc

From this standpoint, the term "sufficient cause" is liberally construed and the Courts

lean in favour of condonation of delay. Undoubtedly, an inordinate delay brings in its

trail, the consequences like the alteration in the position of the parties, creation of

third party rights and intervention of equities. An unexplained and inordinate delay

thus puts the Court on guard. Nonetheless, it is emphasised that the length of delay

may not be the sole barometer for exercise of the discretion. It is the sufficiency or

otherwise of the cause ascribed for the delay which carries more weight.

25. In the case of N. Balakrishnan Murthy V/s. M. Krishnamurthy

(supra), on which reliance was placed by Mr. Marathe, the principles which govern

the exercise of discretion and the philosophy which ought to inform the said exercise

were illuminatingly postulated :

"9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the

SSP 14/19 ao 50 of 2023.doc

conclusion of the lower court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.

11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].

13. It must be remembered that in every case of delay there can be some

SSP 15/19 ao 50 of 2023.doc

lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

26. The Court has enunciated in clear and explicit terms that if the

explanation does not smack of mala fides or it is not put forth as part of a dilatory

strategy the court must show utmost consideration to the party seeking condonation of

delay. The Supreme Court has emphasised that the object of law of Limitation is not

to destroy the rights of the parties.

27. On the aforesaid anvil, re-adverting to the facts of the case, the reasons

ascribed by the Defendants could not have been brushed aside as unsatisfactory.

Whether it was on account of want of communication from the erstwhile Advocate of

the Defendants or sheer disinterestedness of the Defendants themselves, can be a

matter in contest, but the fact remains that the Defendants did not participate in the

proceedings in the suit.

28. To lend support to their contention that there was remissness on the part

SSP 16/19 ao 50 of 2023.doc

of their Advocate, the Defendants have lodged complaint with the appropriate

authority which is empowered to redress such grievance. The claim of the Defendants

that they were unaware of the proceedings, thus, could not have been jettisoned away

over board. Explanation for the delay of four months, as reckoned by the learned

Judge, City Civil Court, if construed in the light of further assertion that after being

served with the notice of execution application, the Defendants made efforts to

ascertain the facts, and thereafter, initiated measures, cannot be said to be

unsustainable.

29. The nature of the decree passed in Suit No.3513 of 2010 also assumes

importance. Under the provisions of Section 97 of the Code of Civil Procedure, 1908,

where any party aggrieved by a preliminary decree does not appeal from such decree,

he shall be precluded from disputing its correctness in any appeal which may be

preferred from the final decree. It is equally well-recognized the Defendant who have

suffered an ex-parte decree has two remedies : first, either to file an application under

Order IX Rule 13 of CPC to set aside the ex-parte decree; second, to file regular appeal

before the first appellate court and challenge the ex-parte decree on merits. However,

the scope of inquiry under the two provisions is entirely different. A defendant is not

precluded from filing an appeal even if an application under Order IX Rule 13 of CPC

is dismissed. If the delay is not condoned and ex-parte decree is not set aside, even in

a deserving case, the Defendant would be constrained to resort to remedy of appeal

SSP 17/19 ao 50 of 2023.doc

again accompanied by an application for condonation of delay and resultant avoidable

multiplicity of proceedings.

30. In the totality of the circumstances, in my view, the delay in taking out

the Notice of Motion for setting aside the decree deserves to be condoned and the ex-

parte decree is also required to be set aside so as to provide an efficacious opportunity

of hearing to the Defendants, especially having regard to the nature of the suit. At the

same time, interest of the Plaintiff deserves to be adequately protected. A direction for

payment of costs must follow and a time frame for the resultant trial is required to be

stipulated.

29. The conspectus of aforesaid consideration is that the Appeal deserves to

be allowed.

30. Hence, the following order :

ORDER

(i) The Appeal stands allowed subject to the payment of costs of

Rs.25,000/- by the Appellant to the Respondent Nos.1A to 1C within a period of three

weeks from today.

(ii) The impugned order dated 9 November 2022 passed in Notice of

Motion No.931 of 2021 stands quashed and set aside and the Notice of Motion stands

allowed.

(iii) The judgment and decree dated 15 June 2008 passed in S.C.Suit

SSP 18/19 ao 50 of 2023.doc

No.3513 of 2010 also stands quashed and set aside and S.C.Suit No.3513 of 2010

stands restored to the file of City Civil Court for afresh hearing and disposal.

(iv) The orders of no cross-examination of the Plaintiff and closing

the evidence of the Defendants also stand quashed and set aside.

                                      (v)     Trial in Suit No.3513 of 2010 stands expedited.

                                      (vi)    The Defendants shall not seek any adjournment for conducting

cross-examination of the Plaintiff and/or her witness/es and also for adducing their

evidence.

(vii) The learned Judge, City Civil Court is requested to make an

endeavour to decide S.C.Suit No.3513 of 2010 as expeditiously as possible and

preferably within a period of 9 months from the date scheduled for the appearance of

the parties.

(viii) The parties shall appear before the learned Judge, City Civil

Court on 17 August 2023.

(ix) In the event of default in payment of costs or depositing the same

with the City Civil Court within the stipulated period of three weeks, this order shall

stand automatically vacated without further reference to the Court.

(x) The Appeal as well as Interim Application accordingly stand

disposed.

                                                                                ( N.J.JAMADAR, J. )

                       SSP                                                       19/19



Signed by: S.S.Phadke
Designation: PA
Date: 26/07/2023 19:30:32