JUDGMENT:

1. Admit. Respondent Nos.1 and 2, who are Plaintiffs in the suit and contesting parties, are served and represented by an advocate. With the consent of the learned advocates appearing for the parties, the appeal is taken up for final hearing.

2. By this appeal, Appellant challenges order dated 15 November 2021 passed by the City Civil Court rejecting Notice of Motion No.3946 of 2019. The motion was filed by the Appellant, who was defendant No.1 in the suit, for setting aside ex parte order dated 16 November 2016 and ex parte decree dated 16 December 2017 passed by the City Civil Court in S. C. Suit No.4818 of 2011 against the appellant, who was the sole defendant in the suit originally filed. During pendency of the suit, Respondent No. 3 was impleaded as defendant No.2 to the suit. Since the Society (Defendant No. 2/Respondent No. 3) is not a contesting party, Appellant is referred in the present order as Defendant and Respondent Nos. 1 and 2 as Plaintiffs.

3. In their suit, Plaintiffs sought a declaration that they are absolute owners of suit premises bearing Room No.205, Building No.2, Vighneshwar Housing Co. Op. Society Ltd., Sambhaji Nagar, S. N. Marg, Andheri East, Mumbai 400069 and that the Defendant and his family members did not have right, title or interest therein. As an alternate prayer, Plaintiffs sought a declaration that they have a right to reside in the suit premises alongwith the defendant on payment of 50% society charges. Relief of injunction was also sought against the defendant from alienating or creating third party rights in the suit premises.

4. Appellant-defendant were served with suit summons on 03 February 2012. Though he did not appear initially on 28 February 2013 and 03 July 2013, the Roznama indicates that defendant appeared through his advocate on 14 March 2013 and the suit was referred to mediation. It appears that defendant or his advocate thereafter filed to remain present in the suit. The suit was amended for impleadment of society as defendant No.2 and the appellant-Defendant was served with notice of Chamber Summons as well as amended copy of plaint. However, he failed to remain present. The Roznama indicates that the appellant was present in person on 19 February 2015. He did not file any written statement. He was served with copy of evidence affidavit and list of documents. On account of absence of appellant, ‘No Cross’ order was passed against him on 16 November 2016. Suit came to be finally decreed on 16 December 2017 in absence of appellant. After Plaintiff filed execution proceedings for execution of decree dated 16 December 2017, appellant-defendant filed Notice of Motion No.3946 of 2019 on 04 October 2019 seeking setting aside of ‘No Cross’ order dated 16 November 2016 and ex parte decree dated 16 December 2017. The motion was opposed by the Plaintiffs by filing reply. By order dated 15 November 2021, the City Civil Court had proceeded to dismiss Appellant’s Notice of Motion No.3946 of 2019. Aggrieved by that order, Appellant has filed present appeal.

5. Mr. Pandey, the learned counsel appearing for Appellant would contend that the Appellant relied on his advocate for defending the suit. That his advocate did not communicate the progress of the suit to the appellant. That appellant is not a very highly educated person and is incapable of understanding the niceties of legal procedure. He would further submit that the agreement for allotment of permanent alternate accommodation has been executed in favour of the appellant and that he is in exclusive possession of the suit premises, wherein he is residing with his family members. If the ex parte decree is not set aside, the appellant and his family members would be thrown out from their residential house. In support of his contentions, he would rely upon judgment of the Allahabad High Court in Shiv Kumar Pandey Vs. State of Uttar Pradesh, 2021 DGLS(Alld.) 924.

6. Per contra Mr. Mangle, the learned counsel appearing for Respondent