WP. 2553-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 2553 OF 2011 Rahil Dinanath Obhan ...Petitioner Vs. The Board of Trustees of the Port of Bombay ...Respondent *** Mr. Sanjay Jain a/w Ms. Sarika Mehra i/b LJ Law, for the Petitioner. Mr. Anil V. Anturkar, Amol Gupta i/b Motiwalla & Co., for Respondents. *** CORAM: V. M. KANADE J. DATE : APRIL 18, 2011 P.C. 1. On 13th April, 2011, writ petition was dismissed and reasons were to be recorded. Since the learned counsel for the petitioner wanted to submit his written submissions, following order was passed on 13th April, 2011. “1. For the reasons separately recorded, the writ petition is dismissed. 2. The learned counsel for the Petitioner submits that he shall submit his written submissions day after WP. 2553-11 - 2 - tomorrow. The learned counsel for the Petitioner argued at length and I had directed him to put his submissions in the written form along with judgments which will be taken into consideration, when the reasoned order is dictated in the open court. 3. It is needless to point out that it is always open for the Petitioner to approach the board for regularization since there is policy of the Bombay Port Trust, they can always explore that policy.” . In view of above, the reasoned order is as under- 2. Heard the learned counsel appearing on behalf of the petitioner and the respondent. The petitioner is aggrieved by the judgment and order dated 4th July, 2009, passed by the trial Court and the order dated 26th October 2010 passed by the Appellate Bench of the Small Causes Court. By the said orders, both the Courts below dismissed the application filed by the petitioners herein for setting aside the exparte decree dated 7th September 2000. 3. Brief facts are as under- . The respondent herein filed a suit against Dinanath Obhan who is deceased father of the petitioner herein. The said suit was filed for eviction of the original defendant from the property bearing No. 67 admeasuring 94.30 sq. meters, situate at 37, P. D’Mello Road, WP. 2553-11 - 3 - Elphinstone Estate, Bombay, on the ground of non payment of arrears of rent and subletting of suit premises. A written-statement was filed by the original defendant on 27-1-1988. An exparte decree was passed on 7-9-2000 and suit filed by the respondent/plaintiff was decreed. According to the petitioners herein, on 9th March, 2009 at about 3 p.m. the bailiff attached to the Small Causes Court informed the petitioner about the exparte decree dated 7th September 2000 and the order dated 22-10-2001 passed on the execution application. According to him, he was not aware of the said suit until he was informed by the bailiff. His father expired on 4th June, 2006. According to him, he was never informed by his father about pendency of the suit. He, therefore, filed an application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 on 16th March, 2009 for setting aside an exparte decree passed by the trial Court. Affidavit in reply was filed. The petitioner filed the rejoinder. The trial Court dismissed the application by an order dated 4-7-2009. The trial Court inter alia observed that sufficient cause was not shown for the inaction on the part of the petitioners herein. 4. The Appellate Court also by a well reasoned order dismissed the appeal filed by the petitioners herein. The learned counsel appearing on behalf of the petitioner submitted that father of the petitioner was WP. 2553-11 - 4 - suffering from heart decease and has undergone by-pass surgery at William Beumon Hospital (USA) and since then his heart is not functioning effectively. He further submitted that deceased had taken further treatment in the Jaslok Hospital in the year 1997, Breach Candy Hospital in the year 1997 and later in by Dr. N. H. Tandon of Tandon Hospital in the year 2000. It is submitted that he had undergone treatment at the Grant Medical Foundation, Pune from 2000 onwards. It is contended that memory of the deceased was weak and his heart was working to the extent of 20% and on account of his ailment he was unable to attend the Court. The learned counsel appearing for the petitioner vehemently argued that both the Courts below have committed grave error of law in not condoning the delay. He has given list of 12 judgments of the Supreme Courts and the various other High Courts in support of his contention. It is submitted that both the Courts below have erred in holding that no sufficient cause has been shown by the petitioner for condoning the delay of 8 and half years. It is submitted that the petitioner had submitted the medical papers of the doctors, who had treated the petitioner’s father. It is submitted that the lower Courts erred in not accepting explanation which was given by the petitioner that he came to know about the exparte decree only when the bailiff came to WP. 2553-11 - 5 - execute the warrant of possession. It is submitted that both the Courts below have erred in not accepting this reason. 5. In my view, the submissions made by the learned counsel for the petitioner cannot be accepted. Both the Courts below have given cogent reasons and I have considered the judgments on which reliance is placed by the learned counsel for the petitioner and in my view, both the Courts below have rightly rejected the application for condonation of delay. It is not possible to accept contention of the petitioner that his father never informed him about pendency of the suit from the time it was filed. After filing the written-statement, no steps were taken by the deceased father of the petitioner herein or by his advocate to contest the suit. The petitioner’s father died in the year 2006. Though the papers indicate that he was undergoing treatment, these papers, however, do not suggest that he was not in a position to move or confined to the bed. These papers definitely do not suggest that he was suffering from amnesia. Reliance is placed on number of judgments. In my view, ratio of these judgments will not apply to the facts of the present case. The trial Court has a discretion to consider whether the delay caused in filing an application for setting aside exparte should be condoned or not and if the trial Court comes to the conclusion that sufficient cause is not shown, WP. 2553-11 - 6 - in that event the trial Court is entitled to dismiss that application. Reliance was placed on the judgment of the Apex Court in the case of - N. Balkrishnan vs. M. Krishnamurthy [SCC (1998) 7 SCC 123]. In paragraph 13 of the said judgment, it is observed as under- “13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dialatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” 6. There cannot be any dispute regarding the observations made by the Apex Court. In the present case, though the trial Court and the lower Appellate Court has not used the exact words which are found in the said paragraph, perusal of the orders of both the Courts below WP. 2553-11 - 7 - reveal that both the Courts below have clearly considered conduct of the petitioner and the trial Court has noted that “the obstructionist No. 4 while defending the obstructionist Notice No. 87 of 2001 had specifically come to the Court with a case that the suit premises is in his possession on tenancy basis, which he received from the defendant. The inaction and silence on the part of the original defendant till 04-06-2006, therefore, clearly proves that he had not participated or cared about the pendency of suit against him just because he had parted with the premises by handing over the same to obstructionists No.4. As such, at the relevant time, defendant had deliberately taken himself away from the proceedings only because of this reason. 7. By making the said observation, the trial Court had clearly come to the conclusion that the explanation smack of mala fides or that it was putforth as a part of dilatory strategy. It is not necessary to refer all the judgments on which reliance is placed by the learned counsel for the petitioner since there cannot be any dispute about ratio of the judgments on which he has placed reliance. Hence, no case is made out for interfering with the orders passed by both the Courts below, while exercising jurisdiction under Art. 227 of the Constitution of India. Writ Petition is, therefore, dismissed. WP. 2553-11 - 8 - 8. At this stage, learned counsel for the petitioner seeks stay to the impugned orders passed by both the Courts below, for a period of 8 weeks. This request is opposed by the counsel for the respondent. Trial Court stayed the decree till December, 2010. No steps were taken thereafter about expeditious disposal of this writ petition. The petitioner has been adopting dilatory tactics to avoid execution of the decree. Hence, this request is declined. [ V. M. KANADE J.]