1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.761 OF 2007 Ravindra Balaram Dhuru & ors ..Appellants V/s. Suryavanshi Kshatriya Dnyati Samaj ..Respondents & ors Mr.A.K.Abhyankar, Senior Counsel h/f. Mr.Nitin V. Mhatre, advocate, for the appellants Mr.G.S.Godbole with Mr.Vivek Walawalkar a/w.Sameer Bhalekar, advocate, for the respondent Nos.1, 2, 5, 6 & 13 to 16 CORAM : J.H.BHATIA, J. DATE : 15TH JANUARY, 2008 P.C. . Heard the learned counsel for the parties. Defendant No.1/Respondent No.1 is a trust and other defendants/respondents are the trustees. It is the case of the plaintiffs/appellants that their ancestor Kashinath Devji Dhuru had by a registered document gifted the suit property to Suryavanshi Kshatriya Dnyati Samaj & constitued the trust respondent No.1. The plaintiffs filed a suit 2 No.2208 of 2004 against the defendants contending that the present trustees of defendant No.1 trust were acting in breach of the terms of the settlement and by the said suit, they are seeking certain other directions. They had also taken out Notice of Motion for temporary injunction and the temporary injunction was granted against the defendants. Against that order, the defendants had preferred an appeal before the High Court. Even, though, the appeal has been admitted, the stay was not granted to the temporary injunction against the defendants. The issues in the suit were framed on 3rd November, 2007. Thereafter, on two or three occasions the plaintiffs and their advocate could not appear due to the reasons explained by them. On 14th March, 2007, as the plaintiffs and their advocate were absent, the suit came to be dismissed in default. On 27th August, 2007, the plaintiffs took out Notice of Motion No.2984 of 2007 for setting aside the order of dismissal in default. In the said Notice of Motion, they also sought an 3 order for condonation of delay for filing the said Notice of Motion. They also sought directions that interim injunction which was granted earlier should be restored. The Notice of Motion was opposed by the defendants. After hearing both the parties, the trial Court by the impugned order dated 7th September, 2007, rejected the Notice of Motion. This is how the plaintiffs have preferred the appeal against the said order. 2. The record reveals that the issues were framed on 3rd November, 2007 and thereafter, the matter was adjourned to 15th December, 2006 for filing affidavit in evidence. On 15th December, 2006 none was present for the plaintiffs and the matter was adjourned to 19th January, 2007 for same purpose. On the next date i.e.on 17th February, 2007 the matter was adjourned because the Presiding Officer was on leave. On 14th March, 2007 again none was present for the plaintiff and on that day the suit came to be dismissed for default. Thus, 4 it appears that after framing the issues the matter was adjourned for three dates. In paragraph 9 of this affidavit filed by plaintiff No.2 it is contended, that plaintiff No.1, who is aged about 85 years used to lookafter the matter but he was not keeping well since December, 2006 and in the month of February and March, 2007, he was advised rest for three to four weeks. Subsequently, in the year 2007, he was required to be admitted in P.D.Hinduja Hospital, Mahim, Mumbai and due to this reason, he could not appear before the Court on the dates. In paragraph 10, plaintiff No.2, who was aged about 56 years, explained that as he had to frequently travel on account of his work and was under impression that plaintiff No.1 would be taking care of litigation as he was conversant with the same, he could not contact his advocate. In paragraph 11, it was explained that electronic diary of their advocate was lost on 3rd November, 2007 and the complete record was got spoiled. Clerk of their advocate had also left the job after 5 Winter Vacation. Due to these reasons, advocate lost track of the matter and in the second week of August, 2007, plaintiff No.2 made enquiry with their advocate and then it was revealed that the matter was dismissed in default on 14th March, 2007 Immediately thereafter, Notice of Motion was taken out for setting aside dismissal order for restoration of the suit filed. Thus, the explanation was given about the circumstances in which the plaintiffs could not appear before the Court. 3. The trial Court was not satisfied with reasons on the ground that plaintiff No.2, who was aged about 56 years had himself filed Notice of Motion and some other documents on earlier occasion and therefore, the reason does not appear to be correct. It appears that the trial Court took very strict view of the matter forgetting that the suit was not very old. Issues were framed on 3rd November, 2007 and out of the four dates which were 6 given thereafter, on one date Presiding Officer was also not available. In such circumstances, there was no possibility of the matter proceeding further. Even, though, the Court was justified in passing the order of dismissal in default on 14th March, 2007, the trial Court was not justified in rejecting the petition for setting aside the order of dismissal. Taking into consideration the fact that issues were framed recently. The plaintiffs and his counsel were absent only on two or three dates. The trial Court also did not bear in mind that the suit pertains to the trust. According to plaintiffs, the present trustees were acting in breach of the terms of the settlement. They had proved their prima facie case and their Notice of Motion for temporary injunction was granted. The trial Court did not note that even though, the defendants had challenged that order in appeal, the defendants had failed to secure any stay to that order. Taking into consideration these circumstances and the explanation given by the 7 plaintiff, in my considered opinion, interest of justice required that the delay should have been condoned and the Notice of Motion for setting aside dismissal order should have been granted. Even, though, the learned trial Court might be technically right but the order was not in the interest of justice. 4. Mr.Godbole, learned Counsel for defendants contends that the composite order has been passed by the trial Court rejecting the request for condonation of a delay in filing the application as well as rejecting the prayer for setting aside order of dismissal. According to him, rejection of request for condonation of a delay is not appealable under Order 43 of the Civil Procedure Code, 1908 and therefore, appeal is not tenable and the plaintiff should file Writ Petition but not appeal. I am not convinced with this contention because the learned trial Court did not reject Notice of Motion only on the ground that it 8 was filed after lapse of a period of limitation. Had the trial Court rejected the said Notice of Motion only on that ground, the plaintiffs could file Revision Application or Writ Petition. However, the trial Court proceeded to consider the application on merits and rejected the application for setting aside dismissal order on merits. The order rejecting the application for setting aside dismissal of the suit is appealable under Order 43 and therefore, any other orders which might have been passed along with the same can also be considered by this Court in appeal itself. There can be no justification to ask the plaintiffs to first file Revision Application or Writ Petition to the extent of delay in filing such application and then to file an appeal challenging the order rejecting request for setting aside dismissal of the suit. Such technical approach would only result in unnecessary and unwarranted litigation between the parties. 9 5. For the aforesaid reasons, the appeal is allowed. The impugned order is set aside. Notice of Motion is allowed. 6. Mr.Godbole, the learned counsel for the defendants contends that in view of the dismissal of the suit and due to lapse of a period of 10 months, the injunction order was not in force and therefore, the defendants have already commenced certain developments and have completed the work of construction. In support of this, he had also shown two photographs which appear to have been taken on 9th January, 2008. It appears that the construction work which is undertaken by the defendants is at very preliminary stage. I do not want to make any comment on this aspect at this stage. In my considered opinion, purpose of justice would be served, if the defendants are given liberty to bring this aspect to the notice of the trial Court, which may consider the request for 10 modification of the injunction order, if justice so requires. Liberty granted to the defendants accordingly. Oral request for stay to this order is rejected. (J.H.BHATIA, J.)