1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1474 OF 2008 M.V.Rakshe & Ors. .. Petitioners Versus M/s.Skylark Build .. Respondent Mr.S.H.Ghogare for petitioner Mr.P.S.Dani i/b. Chitnis Vaithy & Co. for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 5th March 2008 P.C. . This petition is directed against the order passed by the trial court setting aside its ex parte judgement and decree in Suit No.5238 of 2003 on the application of original defendant. 2. The suit was decreed ex parte admittedly. The contention raised before me by Mr.Ghogre is that the judgement and decree is on the merits of 2 the case. Inviting my attention to the Roznama, it is urged that firstly the suit was adjourned simplicitor and later on specific directions were given for filing of written statement. When the defendant neither appeared nor filed his written statement, that the suit was placed for recording of evidence of petitioner plaintiff. Evidence was recorded and, thereafter, the judgement was pronounced. Such a judgement and order/decree cannot be set aside in an application under Order 9 Rule 13 of C.P.C. and the remedy of the defendant was elsewhere. 3. Assuming without admitting that the application was maintainable, no sufficient cause has been shown for the non appearance on the relevant date. Learned Judge, therefore, could not have set aside the decree and the order is patently erroneous and without jurisdiction. 4. Mr.Ghogre has tendered a copy of roznama. 3 The Roznama depicts that after the suit was listed some time in 2003, it was adjourned for the purpose of enabling the defendant to file reply to the notice of motion. In the entire year viz., 2004, the suit was not taken up by the City Civil Court as the Board was discharged from time to time. On one occasion, the petitioner’s notice of motion for interim relief also was placed for dismissal. Thereafter, the notice of motion was taken up and directions were issued to file a reply thereto. During the pendency of the same, the learned Judge relying upon the fact that the defendant was absent on two occasions, directed that notice of motion and the suit be taken up together. The decision to proceed ex parte has been rendered on 2nd March 2005 and, thereafter, on 3rd March 2005, the evidence was recorded and the suit was decreed. 5. To my mind, even the directions with regard to the notice of motion being taken up 4 along with the suit or if the defendant desires to file written statement, it should do it before a particular date, are issued behind the back of the defendant and in the absence of their Advocate. Thus, it is not a case where the suit proceeded for want of defence within the meaning of subject provisions so that the remedy would be only to impugn the order in the suit, in appeal. This is a case where the matter proceeded for want of appearance of the defendant through out and that is how the motion for restoration was considered. In the facts of this case, it is not possible to accede to the submissions of Mr.Ghogre that the notice of motion was not the remedy but the defendant should have challenged the judgement and decree rendered on merits, in appeal. 6. That apart in para 4 of the impugned order, learned Judge has assigned cogent and satisfactory reasons which would demonstrate that 5 the original defendant was prevented from appearing and defending the suit. Sufficient cause has been shown for non appearance in the court. The settled principle that the Act of Court prejudices no one has been applied in exercising the discretion and granting liberty to the defendant to defend the suit. In such circumstances, this Court should not substitute its views and arrive at a conclusion other than the one rendered by the Court below. The discretion is not exercised arbitrarily or capriciously either. This is not a fit case of interference under Article 227 of the Constitution of India. Petition dismissed. 7. However, in the peculiar facts of this case, the trial court to endeavour and dispose of the suit as expeditiously as possible and needless to state that if the defendant does not cooperate in the early disposal, the Court can proceed in the absence of the defendant. 6 (S.C.Dharmadhikari, J)