1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3000 OF 2009 Mrs. Kanchandevi S. Dhakad. ..Petitioner. V/s. Rangshardha Hotels Pvt.Ltd. & Ors. ..Respondents. Mr.V.A.Thorat i/b P.D.Jain & Co. for petitioner. Mr.Parikh & Mrs. Sheela Balsari i/b. M/s. Kanga & Co. for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Parikh waives notice for Respondent No.1, the sole contesting Respondent. 3. As short question is involved, Petition is taken up for final hearing forthwith by consent. 4. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and order dated 31st January, 2009, passed below Delay(amendment) Application No.228 of 2008 filed in 2 Notice of Motion whereby the Petitioner prays for condonation of delay in filing Notice of Motion for setting aside exparte decree dated 17th April, 2007 passed against the Petitioner/Defendant No.1. The Court below has rejected the said application and as a consequence thereof, the Notice of Motion also stood disposed of. The Court below has adverted to several aspects in the impugned Judgment which runs into about 12 pages. However, the sole question that ought to have been considered by the lower Court is whether there was sufficient cause for condoning delay in filing Notice of Motion. 5. According to the Petitioner, the Petitioner acquired knowledge about the exparte decree only on 30th September, 2008 and for which reason the Notice of Motion filed on 15th October, 2008, will have to be treated well within time. On the other hand, according to the Respondent No.1, the plea taken by the Petitioner that she had acquired knowledge about the passing of exparte decree only on 30th September, 2008, is false and dishonest. Whereas, the fact of exparte decree passed on 17th April, 2007 was communicated to the petitioner alongwith the covering letter dated 15th July, 2008, which was duly served on the Petitioner. The fact that the envelop sent by 3 the Respondent No.1 was received by the Petitioner herself is not in dispute. The Petitioner however, asserts that the documents contained in the said envelop were blank papers. The stand so taken will have to be established by the Petitioner. If the Petitioner fails to establish that stand, obviously the Court would be justified in concluding that the plea is dishonest and false, for which reason no indulgence be shown to such litigant. However, in the present case, in paragraph-9 of the impugned Judgment the Court has answered the issue on the basis of probabilities. It is common ground that the Petitioner did not enter the witness box to substantiate the plea taken that what was received by her on 15th July, 2008 was only an envelop containing blank papers. If the Petitioner had entered the witness box, the Respondent No.1 could have cross-examined the Petitioner so as to demonstrate the falsity of her claim. However, neither the Petitioner entered the witness box nor the lower Court called upon the Petitioner to establish that fact. 6. In the circumstances, the appropriate course, to my mind, is to relegate the parties before the lower Court which in turn will permit the parties to 4 produce such oral and documentary evidence as may be relevant to answer the point in issue of limitation. If the Court were to accept the stand of the Petitioner, it would necessarily follow that the Notice of Motion as filed within 30 days from the knowledge of exparte decree was within limitation and that would be sufficient cause to condone the delay. All questions in this behalf are left open. The Petitioner shall file affidavit in lieu of examination in chief and then make herself available for cross-examination, if called upon by the Respondent No.1. It will be open to the Respondent No.1 to produce such evidence, oral or documentary on the issue of limitation. As aforesaid all question in that behalf are left open. 7. Counsel for the Respondent No.1 submits that the Court may place on record that after possession was taken from the Defendant No.1/Petitioner on 15th July, 2008, the Respondent No.1 has since inducted Montize Financial Services Pvt.Ltd. on leave and licence basis in terms of the agreement dated 24th February, 2009. It is not necessary for me to dilate on this aspect any further in the present proceeding. 8. Petition disposed of on the above terms. 5 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)