1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2713 OF 2009 IN SUIT NO.866 OF 1988 Smt.Fancybai w/o Babulal Jain Plaintiff versus Bhikhalal Purshottamdas Morkhiya and another Defendants Mr.V.Z.Kankaria i/by Mr.Sandeep R. Waghmare for plaintiff. Mr.Kunal Cheema for defendant no.1. CORAM : A.S.OKA, J. DATE : 15th December 2009 PC :- 1. I have heard learned counsel for the first defendant in support of the notice of motion. I have heard learned counsel for the plaintiff who has opposed the notice of motion. 2. The plaintiff filed present suit for possession of the premises more particularly described in paragraph 1 of the plaint. A decree for possession was prayed for as against the first defendant. Mandatory injunction was prayed for against second defendant society enjoining the said defendant to transfer the flat of which suit premises form part in favour of the plaintiff by issuing a share certificate. 2 3. A decree was passed in the suit on 26th February 2009 by this Court in favour of the plaintiff in terms of prayer clauses (a) and (b). It must be stated here that the first defendant had filed written statement contending that the suit was based on forged documents. The prayer in the present notice of motion is for setting aside the ex-parte decree. 4. It is pointed out in the affidavit in support that in the year 1992 the suit was decreed ex-parte and by order dated 6th June 1996 the decree was set aside and the suit was restored. The learned counsel for the first defendant invited my attention to the averments made in the affidavit in support. He pointed out that after the earlier ex-parte decree was set aside, the first defendant appointed a new advocate. He pointed out that the issues were settled on 4th September 2000 and thereafter first defendant was intermittently in touch with the advocate appointed by him. The first defendant was told that the suit has not appeared on board. He pointed out that in May 2009 when inquiries were made by the first defendant to his advocate, he learnt that the suit has been decreed. He pointed out that the first defendant is the resident of Ahmedabad and his present age of 79 years. He stated that he is suffering from diabetes and blood pressure and has suffered heart attacks on two occasions. He, therefore, submitted that the ex-parte decree be set aside. 5. The learned counsel appearing for the plaintiff opposed the notice of motion by contending that the first defendant is negligent and this is the second occasion on which an ex-parte decree has been passed against 3 him. He submitted that the counsel appearing for the plaintiff had informed the advocate for the first defendant that the suit has been fixed for hearing. He pointed out that from February2008, from time to time, the suit was adjourned and it is not as if that the suit suddenly came up on board on 26th February 2009. He submitted that in view of the decision of the Culcatta High Court in case of Mrs.Eileen Partees D'Roseire Vs. Kumar Jagdish Chandra Singha and others (AIR-1979-Cal-286), no relief can be granted in favour of the first defendant as he has been all through out negligent while contesting the suit. He submitted that the decree passed in the year 2009 in the suit of the year 1988 cannot be set aside. He submitted that the decree is passed on merits. 6. I have given careful consideration to the submissions. It is true that the suit is of the year 1988 and that an ex-parte decree passed earlier was set aside by this Court. The ex-parte decree was set aside as sufficient cause was made out by the first defendant. It must be noted here that the first defendant had filed written statement way back in the year June 1999 and had appointed an advocate to contest the suit. The issues were settled on 4th September 2000. Thereafter the suit did not appear on board for a long time. The suit appeared on board on 27th February 2008. The suit was adjourned to 16th April 2008 when the plaintiff was directed to file an affidavit in lieu of examination-in-chief and the documents. As the plaintiff did not comply with the said order, on 4th June 2008 this Court granted further time to the plaintiff subject to payment of costs of Rs.1,000/- to be paid to Kirtikar Law Library, High 4 Court, Mumbai. The order sheet shows that on 16th April 2008 and 4th June 2008, the advocate for the first defendant was present. The suit thereafter appeared before this Court on 15th January 2009 when learned counsel for the plaintiff was present but none appeared for the first defendant. That is how on 26th February 2009 a decree was passed by this Court. A perusal of the judgement of this Court shows that as the defendants were absent, the Court proceeded ex-parte against the defendants. The decree is not under Rule 5 or Rule 10 of Order VIII of the Code of Civil Procedure, 1908. The decree is on merits on the basis of evidence adduced by the plaintiff. 7. The suit has remained pending for such a long time. Till 4th June 2008, the advocate for the first defendant appeared before the Court. Thereafter the advocate did not appear and that is how an ex-parte decree has been passed. This is not a case where the first defendant was not desirous of contesting the suit. He had filed his written statement in the year 1999. He engaged services of a new advocate after an ex- parte decree was passed earlier. Only on 15th January 2009 and 26th February 2009 the advocate appointed by the first defendant remained absent. The learned counsel appearing for the plaintiff pointed out that he had personally informed the concerned advocate about the date fixed for hearing, but the advocate remained absent. The case made out in the affidavit in support of the notice of motion is that the first defendant was not made aware that the suit is fixed for hearing. The said case made out will have to be accepted. The fact remains that after the issues were 5 settled, for a period of eight years and more, the suit was never placed before the Court. 8. In the circumstances, a case is made out for setting aside the ex- parte decree. It is true that prejudice will be caused to the plaintiff as the suit is of the year 1988. The loss caused to the plaintiff can be compensated by ordering payment of exemplary costs. The amount of costs is fixed at Rs.35,000/-. 9. Hence, I pass following order :- (A) The Notice of Motion is made absolute in terms of prayer clauses (a) and (b) subject to the first defendant paying costs of Rs.35,000/- (Rs.Thirty five thousand only) to the plaintiff on or before 08th January 2009. Payment of costs shall be the condition precedent and if compliance is not made, the notice of motion shall stand dismissed; (B) It is made clear that if any interim-relief was operating during pendency of the suit, the same shall stand restored; (C) If compliance is made by the first defendant, the suit shall be fixed for recording of evidence on 22nd January 2010. It will be open for the plaintiff to file further affidavit in lieu of examination-in-chief; (D) The Notice of Motion is disposed of in the above terms. (A.S.OKA, J.)