1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 630 OF 2008. 1. Mr.Shiva Subhan Gandhi s/o Shri Suban S. Gandhi major in age, Indian National, BG-1,Antrix Manor, Dabolim, Goa. 2. Mr. Shravan S. Gandhi, s/o Shri Suban S. Gandhi, Major in age, Indian national, BG-1, Antriox Manor, Dabolim, Goa. .... Petitioners. Versus 1. Mr.Suban S.Gandhi Son of S.P. Gubban Chetiyar, Major in age, R/o. P. No.205, Near Busy Bee High School, Vasco da Gama. 2. Mrs. Raji Subhan Gandhi, w/o. Subhan Gandhi, R/o. P. No.205, Near Busy Bee High School, Vasco da Gama. ..... Respondents. Mr. Rohit Bras de Sa, Advocate for the petitioners. Mr. S. Padiyar, Advocate for the respondents. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT : 7 TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT:13 TH JANUARY, 2009 . 2 JUDGMENT : 1. Rule, returnable forthwith. Heard with consent of the parties. 2. This is a writ petition against the order passed by the Civil Judge, Junior Division, Vasco thereby, he refused to condone delay in preferring the application for setting aside ex-parte decree, filed by the original defendants / petitioners. 3. In brief, the facts of the case, are as follows : The petitioners and the respondents are closely related to each other. The petitioners are the sons of the respondents. The respondents instituted a suit for injunction against the defendants / petitioners restraining them from entering into the suit shops and interfering with their business. The suit came to be instituted on 04.11.2003. Pursuant to the summons issued to the petitioners/ defendants, petitioners / defendants appeared before the Court and filed written statement. It is alleged by the petitioners that after they filed written statement, there was a meeting between them and their parents i.e. plaintiffs/ respondents on 4.3.2004. In that meeting, the dispute was 3 resolved and it was agreed that the respondents/ plaintiffs would withdraw the suit. The petitioners/ defendants were, therefore, under impression that the respondents/ plaintiffs would withdraw the suit and, therefore, did not care for the same. On 13.5.2008, the defendants/ petitioners had gone to the office of the Chartered Accountant, where they came to know that an ex-parte decree has been passed against them. They immediately contacted a new Counsel to take note of the record and found that on 10.08.2004, the Counsel for the defendants/ petitioners had made the submission that the defendants are not contacting him and he would like to withdraw his appearance. It is the contention of the petitioners/ defendants that Shri Kenkre Advocate never informed them about the withdrawal of his appearance and the Court had passed ex-parte order and decree. 4. The defendants were never aware of the pendency of the suit since it was agreed to be withdrawn. Further it is the contention of the petitioners/ defendants that they immediately contacted the Counsel, obtained copies and filed the application for setting aside ex-parte decree and submit that delay for preferring such an application, be condoned. 5. This application was resisted by the plaintiffs/ 4 respondents. The plaintiffs/ respondents submit that there was no meeting whatsoever between the plaintiffs and defendants on 4.3.2004 as alleged. They had never agreed to withdraw the suit. On the other hand, it is the contention of the plaintiffs that the defendants had themselves gone to their Lawyer Shri Kenkre on 14.06.2004, they had collected the papers, issued an acknowledgment and had even taken consent of Shri Kenkre to engage a new Counsel. It is submitted by the plaintiffs, therefore, that there was no question of Shri Kenkre giving any notice since the documents were collected by the defendants and in spite of this, they did not go to the Court and find out what has happened to the suit and this is a sheer negligence on the part of the defendants. They contend that the application for delay condonation should, therefore, be rejected. The defendants have filed rejoinder and have denied the allegation that they had contacted their Lawyer Shri Kenkre and that they had issued any acknowledgment and had given consent for withdrawal. 6. The learned Judge of the Trial Court, found that no sufficient ground for condonation of delay, is made out and, therefore, the application for condonation of delay in preferring the application for setting aside ex-parte decree, was liable to be rejected. Holding so, the application was rejected. The defendants/ petitioners feel aggrieved and 5 prefer this writ petition. 7. I have heard the learned Counsel for the petitioners and respondents. The reasons for condonation of delay, have to be considered in the context of the fact that the suit was filed by the parents of the defendants for injunction restraining them from entering into the business premises. The fact that the father and the mother were required to institute the suit against the sons and that too for an injunction, clearly suggests that the relations between the parties were strained. 8. It is the case of the petitioners that there was a meeting between the plaintiffs/ respondents and defendants/ petitioners after written statement was filed in the suit and it was agreed that the plaintiffs/respondents would withdraw the suit. It is the contention of the defendants that they were under impression that the suit would be withdrawn. In any case, this contention cannot, prima facie, be accepted firstly because of the fact that the relations were strained and it is hard to believe that there would be settlement without anything being reduced into writing particularly when the suit itself, was pending. Secondly, it is not the contention of the defendants that they ever went to the their Lawyer to inform that the suit is settled out of the Court and the plaintiffs are to withdraw the suit. If there was settlement, it is 6 hard to believe once again that the defendants would fail to inform the Lawyer of dispute having been settled. On the other hand, rojnama of the suit, shows that on 04.03.2004, defendants/ petitioners' Counsel filed an application for time to file additional written statement and the matter stood adjourned to 06.04.2004. On 06.04.2004, once again, the defendants' Advocate sought time to file additional written statement and the matter stood adjourned to 08.06.2004. On 08.06.2004, the Counsel for the defendants, informed the Court that he intends to serve a notice on his client of withdrawal of his appearance. The Court passed an order directing the learned Counsel to file a copy of the notice and acknowledgment by 10.08.2004. On 10.08.2004, the Counsel for the defendants remained absent and the Court passed an ex-parte order. 9. The learned Counsel for the petitioners submits that the Counsel for the defendants, did not give any notice to the defendants and yet remained absent and that too without withdrawing the power. He submits that the blame cannot be put, therefore, at the door of the innocent defendants/ petitioners. He submits that had the Counsel given notice, his client would have attended the Court or engaged another Counsel. It is contended that under such circumstances, the absence of the defendants, was bonafide and, therefore, the delay should be condoned. 7 10. The petitioners/ defendants, however, do not seem to have come before the Court with clean hands. If the matter was settled out of the Court, it was their bounden duty to inform their Counsel by going to him and informing that the matter is settled and he should inform the Court that matter is settled and is required to be withdrawn. The defendants did not contact the Lawyer after such alleged settlement out of the Court. The next important thing that needs consideration, is that the respondents/ plaintiffs have placed on record the letter of consent given by Shri Kenkre Advocate for engagement of another Counsel by the defendants and also acknowledgment of receipt of the papers by the defendants from their Counsel. This happened on 14.06.2004. Thus, it is apparent that the defendants themselves had taken away the papers and had even obtained the consent of the Lawyer to engage another Counsel. This has been much prior to the ex-parte order passed against them. It must be assumed that the Counsel for the petitioners, had sought to withdraw his appearance because the defendants/ petitioners must not have given instructions. It must be assumed that the Counsel must have informed of the next date. There was no difficulty for the defendants / petitioners to appear before the Court any time before 10.08.2004 or even on 10.08.2004 and there was no reason at all for Advocate Kenkre, in fact, to remain present before the Court on 8 10.08.2004 since he had given consent for withdrawal of his appearance and the defendants had taken away the papers. It is solely due to the negligence and casual approach of the defendants that the Court passed an ex-parte order and decree. 11. The learned Counsel for the petitioners/ defendants had relied on the decision of the Supreme Court in the case of Sushila Narahari Versus Nandkumar reported in (1996) 5 Supreme Court Cases 529. The decision has no bearing on the case at hand as the defendants/ petitioners themselves contacted the Lawyer, sought permission from him to engage another Lawyer and even collected their papers. There was no need for the petitioners' Counsel to once again serve notice against them. If he had, therefore, not appeared before the Court, it could not be said that he did not appear without notice. The decision has no bearing on the case. 12. The learned Counsel for the petitioners/ defendants submits that the Court should not have relied on the acknowledgment and consent of the Lawyer as according to the defendants, they never went to Shri Kenkre and never sought his consent. This contention cannot be accepted. There is no reason for the Lawyer to fabricate such documents at all. 9 13. The petitioners/defendants submit that they came to know about the decree from their Chartered Accountant. His name is not disclosed in the application. His affidavit is not filed. No reason is disclosed why the Chartered Accountant would come to know that such a decree has been passed against the defendants / petitioners. The Chartered Accountant is not a Lawyer and does not go to the Court and is not expected to know about the decision. This source of information, also does not appear to be probable and, therefore, the contention of the defendants that they came to know about the decision only through the Chartered Accountant on 13.05.2008, cannot be accepted. 14. The conclusions that can be drawn, are that the petitioners have raised the plea of settlement which appears to be improbable. The defendants did not contact their Lawyer and remained complacent and failed to take further steps to defend themselves. The complacency is nothing short of negligence. The delay of 3 years is inordinate. The learned Judge of the Trial Court, did not commit any error in rejecting the application. There is no substance in the petition. It is dismissed. 15. Rule is discharged. C. L. PANGARKAR, J. SMA 10