1 (CRA 305 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 305 OF 2011 Mrs.Halimabai Gulam Nabi ...Applicant Vs. Rajkumar Shivmurath Singh and Ors. ...Respondents ----- Mr.Y.E. Mooman for Applicant Mr.Tushar Dahibawkar i/b. Dahibawkar and Company for Respondent Nos.1,2 and 4 ----- CORAM: V.M. KANADE J. DATED: 27th June, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicant and the Respondents. 2. The Applicant is the Original Tenant and the Respondents are the Original Landlords (for the sake of convenience the parties shall be referred to as “the tenant and landlords”). 3. The landlords filed a suit for eviction against the tenant on the ground of arrears of rent and regular rent in the year 2001. The summons was duly served and, thereafter, an ex-parte decree was passed on 25.1.2002. Since no appearance was filed on behalf of the Defendant-tenant in spite of service of writ of summons, 2 (CRA 305 of 2011) the Misc. Notice was taken out by the landlords in the year 2006 and, thereafter, immediately an application was filed for setting aside the ex-parte decree. In the application, firstly, an averment was made that after the writ of summons was served, the tenant was paid a huge amount of money to the landlords and there was an agreement that the landlords would not proceed with the suit. It was contended that the tenant was under the genuine belief that the landlords would withdraw the suit and, therefore, no attempts were made to file appearance before the Trial Court. Secondly, it was stated in the application that the tenant was suffering from 'Tuberculosis' prior to filing of the suit and even at the time when the execution notice was issued. Reliance was placed on number of documents and medical records in support of the said statement. The Trial Court, however, dismissed the application for setting aside the ex-parte decree and this order was confirmed by the Lower Appellate Court. 4. Shri Mooman, the learned counsel appearing on behalf of the Applicant submits that both the Courts had not taken into consideration the medical documents which were brought on record and which were denied by the landlords in their affidavit in reply. It was submitted that since there was no denial by the landlords about the 3 (CRA 305 of 2011) contents of the said documents, it was the duty of both the Lower Courts to have taken into consideration the said documents and, therefore, should have accepted the medical ground as sufficient cause for condonation of delay. He invited my attention to the observations made by the Trial Court as well as the Lower Appellate Court on the said aspect. 5. In my view, submissions made by the learned counsel for the Applicant cannot be accepted. Both the Courts below have taken into consideration the various circumstances while deciding the application for setting aside the ex-parte decree. The Trial Court, firstly, has observed that there is no material on record to show that the Applicant-tenant was hospitalized and that she was enable to move. Secondly, the Court has also taken into consideration the report of the Bailiff, who has stated that when he went to serve the writ of summons, two other persons were found in the premises. The Lower Appellate Court also has considered this aspect and has also held that the said cause which is shown by the Applicant cannot be accepted as the sufficient cause. Since both the Courts below have applied their mind and have taken a view, it will not be possible to this Court to substitute the view taken by the Lower Court. This is not a case where both the Courts have not at all 4 (CRA 305 of 2011) considered the documents which are on record. Hence, no case is made out for interfering with the impugned orders passed by the Lower Courts. Civil Revision Application is dismissed. Civil Application does not survive and is also disposed of. Ad-interim order to continue for a period of eight weeks provided that the Applicant shall give an undertaking in the usual terms. (V.M. KANADE J.)