1 AO-1074-04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 1074 OF 2004 IN NOTICE OF MOTION NO. 2126 OF 2004 IN L.C. SUIT NO. 1407 OF 1999 Sports Field Construction ) a Partnership Firm registered under ) the Indian Partnership Act having its ) office at Survey No.41, Oshiwara, Near ) Lokhandwala Complex,Andheri (W), ) Mumbai 400 058. ).. Appellant (Orig. Plaintiff) Versus 1. The Bombay Municipal Corporation ) a Statutory Body formed and ) established under the Bombay ) Municipal Corporation Act, 1888 ) havig its principal place of business ) a Municipal Corporation Building ) Mahapalika Marg, Fort, ) Bombay - 400 001. ) 2. State of Maharashtra, ) Mantralaya, Bomba 400 032. ) 3. District Inspector of Land Records ) and City Survey Officer No.4, ) having its office at Chauba Chandan, ) Jogeshwari, Mumbai and ) presently at City Survey Office, ) Andheri, Sardar Vallabhai Patel ) Nagar Road, Near MTNL, ) Versova, Andheri (W), ) Bombay 400 058. ) 2 AO-1074-04.sxw 4. Master Clock and Watch Works Pvt.Ltd.) having its office at Saki Vihar Road, ) Powai, Bombay 400 072. ) 5. Ajmera Housing Corporation having ) its office at Hanuman Building, 1st Floor,) 308, Petit Nariman Street, Bombay. ) 6. Shri Swami Samarth C.H.S.Ltd., ) (proposed) ) through its Chief Promoter, ) V.P.Mahajan having its office at 11A, ) Suyesh Gokhale Rd., Near ) Amarhind Mandal, Dadar, Bombay. ) 7. Oshiwara land Development ) Corporation Pvt.Ltd. having its office ) at 71/73, Botwala Building, Bombay ) Samachar Marg, Mumbai 400 023. ) and also having its branch office at ) 3, Usha Kiran, M.M. Marg, ) Mumbai 400 006. ) 8. Samarth Development Corporation ) having its office at 11/A, Suyesh ) Gokhale Road, Near Amarhind ) Mandal, Dadar, Boombay 400 028. ). Respondents (Org. Defendants) Mr. Mayur Khandeparkar i/b. Kanga & Co.,Advocates, for the appellant Mrs.K.K.Soraan,Advocate for the respondent No.1. Smt. S.V.Sonavane, AGP, for the respondent No.2. Mr. Nimay dave, i/b. K.D.Abichandani,Advocate, for the respondent No.4. CORAM: J.H.BHATIA,J. DATE : 8th June, 2011. JUDGMENT: 3 AO-1074-04.sxw 1. Heard the learned Counsel for the parties. 2. The appellant had filed L.C. Suit no.1407 of 1994 against the respondents alleging some encroachment on its land and wrong alignment at the time of measurement by the authorities. Several Notices of Motion were also filed. The suit along with a contempt Notice of Motion was dismissed in default on 17.4.2004 on the ground that none for the plaintiff nor its Advocate was present when the matter was called on that day. The plaintiff took out Notice of Motion No.2126 of 2004 on 14.5.2004 for recalling the order dated 17.4.2004 and to restore the suit along with the contempt Notice of Motion. The said Notice of Motion for restoration came to be dismissed by the learned Judge, City Civil Court by the impugned order dated 6.10.2004. That order is challenged in the present appeal by the original plaintiff. 3. In the affidavit in support of the Notice of Motion for restoration, the history of litigation between the parties was given. It was stated that on certain occasions, the board was discharged and the matter was adjourned from time to time. Because of pre-commitment of business, the deponent V.V.Kamat, the partner of the plaintiff, who is looking after the suit, was out of Bombay from 4 AO-1074-04.sxw 15.4.2004 till 9.5.2004. and therefore he could not attend the Court on that day. After returning when he enquired with the clerk of the Advocate about the status of the matter, he came to know that the suit as well as the contempt Notice of Motion were dismissed in default. According to him, promptly on 13.5.2004, a precipe for search of the record was filed and after confirmation that suit as well as contempt Notice of Motion were dismissed in default, immediately on next day, the Notice of Motion was taken out for recalling the order of dismissal and for restoration of the suit as well as the contempt Notice of Motion to its original position. 4. The learned Judge observed that the person who wants restoration of proceedings has to demonstrate sufficient cause for being prevented in attending the matter when it was called. The trial Court noted that the plaintiff as well as its Advocate had not kept the track of the matter and that shows the slackness in attending the matter. It was noted that the plaintiff or his Advocate had not attended when the matter was called on 4.7.2003, 3.2.2004, 16.2.2004 and again on 8.4.2004. The trial Court also noted that age of the matter being alarming does not demonstrate that the suit should be restored to original position as the plaintiff had failed to show sufficient ground to keep himself away from the matter when it was called. 5 AO-1074-04.sxw 5. It appears from the affidavit of V.V.Kamat filed in support of the Notice of Motion, and it is also not disputed that along with the suit filed in 1994, a Notice of Motion was also filed which was dismissed in June 1998 and that order was challenged by the plaintiff in the High Court and that High Court had clarified that defendant No.4 shall avail the FSI except the FSI in respect of the disputed portion i.e. 263.87 sq. mtr. Thereafter, the trial Court had directed to fix stone pegs on the site for the purpose of demarcation. The plaintiff filed contempt Notice of Motion No.2383 of 1999 which was pending for about 5 years till 17.4.2004 when it was dismissed in default along with the suit. It is also material to note that the suit summons was served on the defendants on 16.3.1999 and till the suit was dismissed, the defendants had not filed written statement even though they had appeared in the matter and participated in the different Notices of Motion. The contempt Notice of Motion as well as the Chamber Summons were taken out by them. 6. Order IX of C.P.C. deals with the appearance of parties and consequences of their non-appearance at different stages. Order IX Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim. Under Order IX Rule 12, 6 AO-1074-04.sxw where the plaintiff or defendant who has been ordered to appear in person, does not appear in person or shows sufficient cause to the satisfaction of the Court for failing to appear, the consequences would follow. It means if the plaintiff is ordered to appear in person and if he remains absent without sufficient cause, the suit can be dismissed in default. From the language of Order IX Rule 8, it is clear that if the plaintiff does not appear when the suit is called on for hearing, then only suit can be dismissed. But if the matter is not fixed for hearing on a particular date, it cannot be dismissed in default for non-appearance of the plaintiff. Order XIV provides for settlement of issues. Naturally, the stage of settlement of issues comes after the defendant has filed the written statement. Order XV provides that if the parties are not at issue, suit may be disposed of at the first hearing. So, if the parties are not at issue, the matter may be fixed for hearing and it may be disposed of on the first day. If the parties are at issue, under Order XVI, the witnesses may be summoned. Order XVIII deals with hearing of the suit and examination of witnesses. Under Order XVII Rule 1, the Court may grant time and adjourn the hearing. Under Order XVII Rule 2, where, on any day to which the hearing of the suit is adjourned, parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. It means if the defendant does not appear at the time of hearing, the suit may 7 AO-1074-04.sxw proceed exparte and if the plaintiff does not appear, suit may be dismissed in default under Order IX Rule8. The crux of Order IX Rule 8 and Order XVII Rule 2 is that matter should have been fixed for hearing. 7. In the present case, even though the defendants were served with the summons to file written statement and for settlement of issues in the year 1999, they had not cared to file written statement till 17.4.2004 when the suit was dismissed in default. On that day, on the daily board, the suit was shown for direction and not for hearing. In view of the fact that defendants had not filed written statement inspite of service of summons for so many years, the only direction which could have been given would be to proceed without written statement. As the matter was not fixed for hearing on that day, the suit could not have been dismissed merely because the plaintiff or its advocate did not attend the Court when the matter was called on that day.. There is no provision in the Civil Procedure Code except the provisions referred to above under which the suit could be dismissed on the ground that the plaintiff or his Advocate was not present when the suit was called, particularly when it was not fixed for hearing. From this, it is clear that the order dated 17.4.2004 dismissing the suit in default was per-se wrong and illegal. 8 AO-1074-04.sxw 8. As noted above, the plaintiff had promptly taken out the Notice of Motion for restoration of the suit and the contempt Notice of Motion by explaining that during the relevant period during April-May 2004, he was out of Mumbai because of pre-commitments of business and immediately after coming back to Mumbai, he enquired about the status of the matter and on 13.5.2004 it was confirmed that the matter was dismissed in default and on the very next day he moved an application for restoration. The learned Judge of the City Civil Court did not properly appreciate the explanation and dismissed the matter only on the ground that there was no record that the boards were discharged as alleged in the affidavit and also on the ground the suit was very old. The learned Judge did not notice that the plaintiff was not at fault for the suit remaining pending for such a long period. The learned Judge failed to know that the defendants had not filed written statement for about 5 years after service of summons for filing the written statement and because of that the suit was pending. In view of this, it is clear that the impugned order was passed without proper application of mind. In view of the facts and circumstances, the Notice of Motion for restoration of suit and the contempt Notice of Motion should have been allowed in the interest of justice. 9. For the aforesaid reasons, the appeal is allowed. The impugned order 9 AO-1074-04.sxw is hereby set aside. Notice of Motion is hereby allowed and the order dated 17.4.2004 dismissing the suit and the Notice of Motion is also hereby set aside. The suit and the said contempt Notice of Motion are hereby restored to same stage, at which they were dismissed, with the interim relief which was operating at that time. 10. The parties shall appear before the Court on 27.6.2011. As the suit is now pending since 1994, the trial Court shall expedite and dispose of the same as early as possible, and preferably within six months. 11. In case any action for contempt is sought to be taken by the plaintiff against the defendants for anything done from the date of dismissal of the suit till this day, the defendants shall be at liberty to point out that there was no order in force during the said period. (J.H.BHATIA,J.)