Lalita D. Nadkarni & others vs S. G. Punjabi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1989 Supreme(Bom) 226

IN THE HIGH COURT OF BOMBAY
Mrs. Sujata Manohar, J.
Mrs. Lalita D. Nadkarni others... Petitioners.
Versus
S.G. Punjabi... Respondent.
Writ Petition No. 4800 of 1988, decided on 25-8-1989.
Advocates appeared :
C.R. Dalvi with N.R. Jagtap and Smt Mohana R. Naik for petitioners
R.S. Bhonsale with Miss Kiran V. Gupta and Rajiv J. Mane, for respondent.

Headnote:Order 9, Rule 13 and Explanation II-Setting aside of ex-parte decree Application to set asides exparte decree filed-Appeal also filed with application for condonation of delay-Application for condonation not pressed and appeal dismissed for want of prosecution-Held, such dismissal will not affect application to set aside ex parte decree.
       In the present case, the appeal was merely lodged. It could not be numbered because there was delay in filing the appeal and without the condonation of delay, the appeal could not have been numbered. The defendant did not press the application for condonation of delay and hence the appeal was automatically rejected. In such a case where the application for condonation of delay is withdrawn and the appeal comes to be rejected, there is no consideration of the appeal at all by the appellate Court. Explanation II makes it clear that if the appellant has withdrawn the appeal, the application under Order 9, Rule 13 is maintainable. The present case is similar to a case of withdrawal of the appeal. In fact the withdrawal in the present case is at an earlier stage of considering the application for condonation of delay. In such a situation, there can be no bar to maintainability of an application under Order 9, Rule 13 of the Code of Civil Procedure.
       Order 9, Rule 13 Explanation 11-Exparte decree-Setting aside of Time barred appeal dismissed as delay not condoned- Condonation application withdrawn -Held application for selling aside exparte decree under Order 9 Rule 13 is maintainable.
       In the present case, the appeal was merely lodged. It could not be numbered because there was delay in filing the appeal and without the condonation of delay, the appeal could not have been numbered. The defendant did not press the application for condonation of delay and hence the appeal was automatically rejected. In such a case where the application for condonation of delay is withdrawn and the appeal comes to be rejected, there is no consideration of the appeal at all by the appellate Court. Explanation II makes it clear that if the appellant bas withdrawn the appeal, the application under Order 9, Rule 13 is maintainable the present case is similar to a case of withdrawal of the appeal. In fact the withdrawal in the present case is at earlier stage of considering the application for condonation of delay. In such a situation there can he no bar to maintainability of an application under Order 9, Rule 13 of the Code of Civil Procedure.

JUDGMENT - Mrs. SUJATA MANOHAR, J.:---One Dr. D.S. Nadkarni was the owner of Plot No. 11-C of Town Planning Scheme II of Andheri and the late Mrs. Manorama Y. Ambiye, was the owner of the adjoining plot being Plot No. 11-A of the same scheme. The owners of the said two plots entered into an agreement on 14th May 1957 under which they leased the said plot on monthly basis to the father of the first respondent. The petitioners are the successors-in-title of Dr. Nadkarni and Mrs. Ambiye while the First Respondent is the successor-in-title of his father. The tenancy in favour of the first respondent in respect of the plots was terminated by a notice dated 2nd October 1970.

2. Thereafter on 10th of August 1971 R.A.E. Suit No. 3866 of 1971 was filed in the Court of Small Causes at Bombay for eviction of the first respondent from the said plots and for possession. The first respondent was represented by an Advocate in the suit. He filed his written statement. Issues were framed on 22nd July 1976. It seems that on 28th June 1977 the Advocate of the first respondent withdrew his appearance for want of instructions.

3. From the end of 1978 onwards there were negotiations between the parties for settlement of the dispute and for the purchase of the said plots by the first respondent. Two adjournments were taken for this purpose in 1978-79. In March 1979 it is the contention of the first respondent that in view of the talks of settlement which were in progress, he did not engage another Advocate. He also remained under the impression that the suit will be got adjourned by the petitioners and hence he remained absent when the suit was called out on 3rd May 1979. He was also absent on 4th May 1979 when evidence was recorded. On 5th May 1979 an ex-parte decree was passed against the first respondent. This decree was executed by the petitioners on 13th July 1979 as a result of which the petitioners obtained possession of the said plots.

4. Thereupon on 16th July 1979 the first respondent filed an application for setting aside the ex parte decree. He also lodged an appeal from the ex parte decree before the Appellate Bench of the Court of Small Causes and filed an application for condonation of the delay on 17th July 1979.

5. On 3rd March 1980, the Advocate for the first respondent did not press his application for condonation of delay and hence on that date, the notice was discharged for want of prosecution. Thereupon the appear which was not then numbered, was also rejected. The order states:

"The appellant's Advocate states that the appellant does not want to prosecute this appeal. Since, however, the application for condoning the delay in filing the appeal has been withdrawn. The objections taken by the office to the filing of the appeal survive and the appeal will have to be rejected."

6. The application for setting aside the ex-parte decree was dismissed by a learned Single Judge of the Court of Small Causes on 10th November, 1981. The Appellate Bench of the Court of Small Causes at Bombay however, allowed the appeal and has set aside the ex parte decree by its Order dated 22nd August 1988. In the present writ petition, the petitioners have challenged this order of the Appellate Bench of the Court of Small Causes.

7. It is contended by Shri Dalvi, learned Advocate for the petitioners that in view of the rejection of the appeal filed by the first respondent, the application for setting aside the ex-parte decree cannot survive and it ought to have been dismissed. Now, under Order 9, Rule 13 of the Code of Civil Procedure, it is provided as under :

"In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit called on for hearing, the Court shall make an order setting aside the decree..........."

Explanation II i

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