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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. Colabawalla, J.
R.P. Bros through its Proprietor Mr. Rashmikant Chanulal Kuvadia - Petitioner
Versus
Mr. Fakhruddin Siraj Topiwala - Respondent
Writ Petition (L) No. 17138 of 2017
Decided On : 28-06-2017
In fact, if that were the case, this itself would be a sufficient explanation given by the defendant for not being present when the suit was set down for hearing. An advocate once engaged and appearing in Court, has to follow a procedure of obtaining a discharge. He cannot unilaterally decide not to represent his client in Court once a Vakalatnama is filed. If he does so, it would be negligent and unprofessional on his part, and for his negligence, the client would not be penalized by the Court. Over and above this, the advocate for the defendant before the trial Court, has filed an affidavit dated 22nd March, 2016 wherein she has categorically stated in paragraph 4 that she did not take a discharge from the suit due to non-payment of her professional fees and that she still has good relations with the defendant.
Civil Procedure Code, 1908-Order IX, Rule 13-Order XVII, Rule 2(3- b)-Ex parte decree.-In absence of any evidence to show that defendant was aware of passing of decree even before filing of execution application, delay in filing application to set aside ex parte decree liable to be condoned.
As far as the delay is concerned, i.e. from the date of passing of the ex parte decree (2nd May, 2015) till the application for setting aside the same under Order IX, Rule 13 (12th January, 2016), it is the defendant`s case and which is really uncontroverted that the defendant was unaware of the decree being passed until he was served with the Execution Application on 7th December, 2015. Counsel was unable to show anything on record to even remotely indicate that before the Execution Application was served upon the defendant he was aware of the decree being passed. Court finds the moment the defendant became aware of the decree, he acted promptly and filed the application for setting aside the ex parte decree.
Civil Procedure Code, 1908-Order IX, Rule 13-Order XVII, Rule 2(3-b)-Setting aside of ex parte decree.-Decree passed in absence of defendant who had filed written statement being an ex parte decree can be set aside under Order IX, Rule 13 of CPC.
Looking to the law as laid down by the Supreme Court and thereafter followed by our Court, what becomes clear is that where the defendant has filed his written statement but remains absent on the date when the suit is called out for hearing and where the defendant has not led any evidence, the suit can be disposed of (as per Order XVII, Rule 2) only in any of the modes as prescribed under Order IX. Once the suit is disposed of under Order IX and the defendant had not appeared at the hearing of the suit and a decree is passed in his absence then, an application to set aside that decree is certainly maintainable under Order IX, Rule 13. This being the clear enunciation of the law, the Courts below were totally in error in coming to the conclusion that merely because the defendant was served with the writ of summons and filed his written statement and thereafter did not appear, the decree passed could not be said to be one as being ex parte.
Civil Procedure Code, 1908-Order IX, Rule 13-Order XVII, Rule 2(3- b)-Setting aside of ex parte decree.-Where defendant, who had filed written statement was evicted from suit promises without being heard because of ex parte decree therefore ex parte decree liable to set aside.
The Courts below have given a lot of importance to this aspect whilst rejecting the application of the defendant under Order IX, Rule 13 to set aside the ex parte decree. In the peculiar facts of this case, and considering that the decree evicts the defendant and has serious consequences, the Courts below could have taken a more liberal approach and saddled the defendant with costs to compensate the inconvenience caused to the plaintiff. the passing of an eviction decree has serious consequences and the Courts should endeavour that it should be passed on merits rather than in the absence of either party. However, this does not mean that where the party is deliberately staying away and not appearing to protract the litigation, the Courts should continue to show indulgence indefinitely. This would depend on the facts and circumstances of each case and no strait-jacket formula can be prescribed for this purpose. In the peculiar facts of the present case, the defendant had not appeared only on 2 dates before the suit was set down for arguments. This being the case, and considering that the decree passed had serious consequences of evicting the defendant from the suit premises without being heard, the Courts below ought to have set aside the ex parte decree by compensating the plaintiff with heavy costs.
B.P. Colabawalla, J.
Rule. Respondent waives service. By consent, rule made returnable forthwith and heard finally.
2. This Writ Petition has been filed under Article 227 of the Constitution of India seeking to quash and set aside the eviction order dated 2nd May, 2015 passed in R. A. E. Suit No. 1202/1942 of 2011 as well as the order passed in M.A.R.J.I. No. 8 of 2016 dated 12th August, 2016 as well as the Appellate Court's order dated 29th April, 2017 (wrongly mentioned as 29th April, 2016 in the prayer clause). For the sake of convenience we shall refer to the parties as they were arrayed in Trial Court.
3. The Plaintiff (the Respondent herein) had filed R. A. E. Suit No. 1202/1942 of 2011 against the Defendant (the Petitioner herein) for recovery of possession of a Godown on the Ground Floor of Fakhri Manzil at 84, Sarang Street, Mumbai-400 003 (hereinafter referred to as the "suit premises").
4. After the service of the summons, the Defendant appeared in the Suit and also filed his Written Statement. Thereafter, an application was made for depositing arrears of rent in Court by the Defendant, which was allowed by the Trial Court on 2nd February, 2013. Pursuant to this order, the Defendant deposited the rent up to March, 2013. From the Roznama it appears that thereafter the matter was adjourned quite a few times on the ground of settlement. On many occasions, the advocate for the Defendant as well as the Defendant were present before the Court when the matter was adjourned. In any event to explore settlement, the parties were referred to mediation on 1st April, 2014. However, the mediation failed and a report to that effect was filed before the Trial Court on 10th April, 2014. The report states that the Defendant remained absent during the mediation.
5. Be that as it may, according to the Defendant, on 16th October, 2014 a settlement was arrived at between the Plaintiff and the Defendant for an amount of Rs. 95,220/-, on the payment of which, according to the Defendant, the Plaintiff agreed to withdraw the Suit. This amount of Rs. 95,220/- has been received by the Plaintiff and which is not in dispute even before me. It is in these circumstances that thereafter it is the case of the Defendant that he instructed his advocate not to appear in the matter as the same was already settled.
6. Despite these instructions, from the Roznama it appears that the Defendant's advocate appeared in the matter on 18th October, 2014; 20th January, 2015 and 21st February, 2015. Thereafter, the Defendant and his advocate were both absent on 20th March, 2015 and all the dates thereafter, till the passing of the decree. According to the Defendant, despite the settlement, the Plaintiff did not withdraw the Suit and proceeded with the same. The Roznama indicates that the Plaintiff filed his affidavit of evidence before Trial Court on 2nd September, 2014. Thereafter, on 6th December, 2014 the documents produced by the Plaintiff were marked as exhibits and the matter was adjourned to 20th January, 2015 for cross-examination of the Plaintiff. On 20th January, 2015 the holding advocate for the Defendant was present before the Trial Court and requested for time for cross examination of PW-1. The matter was therefore stood over to 21st February, 2015. On 21st February, 2015 also the Defendant's advocate was present when by consent of both advocates, the matter was further adjourned for cross examination on 20th March, 2015. Thereafter, on the next date, namely 20th March, 2015 the Plaintiff was present even though the Defendant and his advocate were absent. Accordingly, the Court passed a "no cross" order against the Defendant. The evidence of the Plaintiff was accordingly closed. It was thereafter adjourned for the Defendant's evidence on 27th March, 2015. On the said date also none appeared for the Defendant. Accordingly, the Court ordered the Defendant's evidence also as closed and posted the matter for arguments on 10th April, 2015. Thereafter,
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