1 ndm 24 fa.570.10 anr IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 570 OF 2010 WITH CIVIL APPLICATION NO. 763 OF 2010 IN FIRST APPEAL NO. 570 OF 2010 Sudhakar Shankarrao Zende. ... APPELLANT Vs. Mrs. Sita Rajab Sayani. ... RESPONDENT -------- Mr. Mahadev J. Jamdar for the Appellant. Mr. Niranjan P. Shimpi for the Respondent. -------- CORAM : A.M. KHANWILKAR and A.A. SAYED, JJ. DATE : 28 th June, 2010. P.C. 1 Heard, the learned counsel for the parties. 2 Admit. 3 As short question is involved, the appeal is taken up for 2 hearing forthwith, by consent. 4 This appeal takes exception to the judgment and decree passed by the Civil Judge, Senior Division, Pune dated 23 rd September, 2009 in Special Civil Suit No. 480 of 2008. The trial Court has decreed the suit filed by the Respondent-plaintiff and has ordered the Appellant- defendant to deliver vacant possession of the suit flat to the Respondent- plaintiff and pay damages for unlawful use and occupation of the suit flat. Besides that, the trial Court ordered inquiry under Order 20, Rule 12 of the Civil Procedure Code for ascertaining the mense profit. In addition, the trial Court permanently restrained the Appellant-defendant from creating third party interest in the suit flat by way of any mode of transfer. 5 It is not in dispute that the defendant was duly served with the summons. The defendant entered appearance before the trial Court through advocate. However, the defendant failed to file written statement within the statutory time. Subsequent request made by the defendant for granting further time to file written statement was rejected and the Court proceeded with the trial by recording no written statement order. This decision was unsuccessfully challenged by the Appellant-defendant before this Court. In other words, order of no written statement passed against the Appellant-defendant has attained finality. Naturally, on account of no written statement order, the trial Court proceeded with the hearing of the suit. The trial Court called upon the plaintiff to produce 3 evidence. The plaintiff examined her power of attorney as her witness. The plaintiff’s witness was offered for cross-examination as noted in the order dated 13 th August 2009. Significantly, neither the defendant nor her advocate was present when the said order was passed on 13 th August, 2009. The hearing of the suit was deferred till 04 th September, 2009 (wrongly noted as 04/09/08 in the roznama). The office, however, rightly notified the matter on 04 th September, 2009. On that date, once again, neither the defendant nor the advocate for the defendant remained present in Court as is noted in the roznama. The trial Court deferred the hearing of the suit till 08 th September, 2009. Later on, the matter was listed on 08 th September, 2009 when the trial Court heard the arguments of the advocate for the plaintiff and posted the suit for pronouncement of judgment on 23 rd September, 2009. That is the position stated in the roznama dated 08 th September, 2009. The trial Court accordingly pronounced the impugned judgment and decree on 23 rd September, 2009. 6 Later on, the Appellant moved an application before the trial Court on 29 th September, 2009. It is stated in the said application that the Appellant was misled by the board issued by the Court for 04 th September, 2009. The matter was shown at serial No. 14 and in the remark column, it notified that the case stood adjourned to 25 th September, 2009. The fact that such noting is found on the board of 04 th September, 2009 is substantiated by the certified copy of the board 4 issued by the Court (at page No. 162 of the appeal paper-book). On this basis, it is asserted in the application filed by the Appellant that the Appellant was misled and therefore did not appear before the Court on 08 th September, 2009 when the suit proceeded for hearing and arguments of the advocate for the plaintiff were concluded. In this background, the Appellant prayed that the judgment and decree dated 23 rd September, 2009 be recalled and the Appellant be given an opportunity to contest the suit. That application came to be rejected by the trial Court on 29 th September, 2009 essentially on the ground that the suit is already disposed of. 7 The Appellant has therefore approached this Court by way of present First Appeal challenging the impugned judgment and decree. The principal grievance of the Appellant is that the Appellant did not get fair opportunity to contest the proceedings. In that, the Appellant was misled by the board issued by the Court dated 04 th September, 2009, which indicated that the matter stood adjourned to 25 th September, 2009. Instead, the suit proceeded for arguments on 08 th September, 2009 itself, which indeed was in accord with the order noted on 04 th September, 2009. The learned counsel for the Appellant submits that the Appellant had made out sufficient cause for setting aside of the impugned judgment and decree. In any case, this Court in exercise of its appellate jurisdiction ought to set aside the impugned judgment and decree so as to afford one opportunity to the Appellant to contest the proceedings in accordance 5 with law. The appeal, however, is resisted by the counsel for the respondent on the ground that the Appellant cannot justify his absence on 08 th September, 2009, by relying on the board issued by the Court dated 04 th September, 2009 and the noting made thereon, which gave impression that the suit was deferred to 25 th September, 2009. The learned counsel for the Respondent relied on the cause list issued by the Court dated 08 th September 2009 and 23 rd September, 2009, which gives complete name of the plaintiff as well as the Appellant. According to the Respondent, therefore, the explanation offered by the Appellant is not a sufficient cause, but only an attempt to prolong the proceedings and deny the fruits of the decree passed in favour of the Appellant. 8 Having considered the rival submissions without going into other questions raised in the appeal, we would confine the judgment on the principal question, as to whether the Appellant has made out sufficient cause for setting aside the impugned judgment and decree so as to relegate the parties before the trial Court for trial of the suit from the stage of cross-examination of the plaintiff’s witness. It is not in dispute that the certified copy of the roznama does indicate that the matter was listed on 13 th August, 2009 and was adjourned for cross-examination of the plaintiff’s witness. On that date, both parties were absent. Only the advocate for the plaintiff was present and the matter was deferred to 04 th September, 2009. However, roznama wrongly records the adjourned date as 04 th September, 2008. Nevertheless, the matter was listed before 6 the Court on 04 th September, 2009, on which date, it was deferred for argument to 08 th September, 2009. Once again, neither the defendant nor his advocate remained present in Court on 04 th September, 2009. The matter then proceeded before the Court on 08 th September, 2009. Even on this date neither the defendant nor his advocate was present. Thus, the arguments of the plaintiff’s advocate were concluded. The suit was then fixed for pronouncement of judgment on 23 rd September, 2009 as is noted in the roznama. Going on by the roznama, there is no difficulty in accepting the submission of the Respondent that the Appellant ought to have remained present before the Court on the adjourned dates. The explanation of the Appellant, however, is that the Appellant was misled by the board issued by the Court for 4 th September, 2009 and in particular, the noting made thereon that the case stands adjourned to 25 th September, 2009. The certified copy of the board issued by the Court has been placed on record. The correctness thereof is not disputed before us. Going by the certified copy of the board, it does give an impression that the case stood adjourned to 25 th September, 2009. Besides, the board does not indicate the name of the parties or for that matter the name of the advocate. The Appellant is entitled to cite the said board as sufficient cause for not appearing when the matter was listed on 04 th September, 2009. In any case, the Appellant is relying on the entry made on the board that the suit stood adjourned to 25 th September, 2009 and because of the said date, the Appellant was under impression that the matter would now be proceeded 7 on 25 th September, 2009. Whereas, the matter appeared before the Court on 08 th September, 2009. The learned counsel for the Respondent no doubt has relied on the board issued by the Court dated 08 th September, 2009. That mentions the present suit for final arguments at serial No.3. The board also mentions the names of the parties as well as the name of the advocate for the plaintiff. However, the name of the advocate for the defendant is not found even on this board. The noting on the board also mentions that the case stands adjourned to 23 rd September, 2009. The fact that the name of the defendant has been notified in the board for 08 th September, 2009 does not mean that the Respondent had notice thereof. Whereas, the Respondent is relying on the noting made on the board issued for 04 th September, 2009, which mentions the adjourned dated as 25 th September, 2009. Besides, the board for 8 th September, 2009, admittedly, does not display the name of the advocate for the defendant. In all probability, the advocate for the defendant must have overlooked the matter on that account. In other words, neither the advocate for the defendant nor the defendant can be attributed knowledge about the fact that the matter was adjourned to 23 rd September, 2009. Whereas, the noting on the board for 04 th September, 2009 indicated that the matter would proceed on 25 th September, 2009. Notably, even the board for 23 rd September, 2009 issued by the Court displays only the name of the advocate for the plaintiff and not of the advocate for the defendant. The case was notified at serial No.1 and the names of the parties are also found in the said cause list issued for 23 rd 8 September, 2009. Suffice it to observe that the Appellant has made out sufficient cause for not appearing on the relevant dates. The Appellant is therefore, entitled for one indulgence in the interest of justice. Moreso because, in the fact situation of the present case, the confusion has occurred on account of mistake of the Court, which is due to incorrect publication of the board for 04 th September, 2009 as well as the subsequent boards for 8 th September, 2009 and 23 rd September, 2009 respectively. We have already elaborated about the drawbacks in the said boards in the earlier part of the order, which we do not intend to repeat. 9 In our opinion, the impugned judgment and decree will have to be set aside and instead the parties will have to be relegated before the trial Court for continuation of trial from the stage of cross-examination of the plaintiff’s witness. 10 Accordingly, we set aside the impugned judgment and decree and instead restore the suit to the file of the trial Court to its original number for continuing the same from the stage of the cross- examination of the plaintiff’s witness. The parties shall appear before the trial Court on 16 th July, 2010 on which date, the trial Court may proceed with the cross-examination of the plaintiff’s witness or assign some suitable date as may be convenient to it while ensuring that the suit is finally disposed of not later than 30 th September, 2010. This indulgence is 9 shown on condition that the Appellant shall pay costs to the Respondent quantified at Rs.10,000/- and/or deposit the same in the trial Court. The Appellant undertakes to pay that amount within a period of two weeks from today and produce the receipt thereof in the trial Court. Payment of costs is a condition precedent for restoration of suit and continuation of the trial on terms referred to earlier. 11 Office shall ensure that the original record and proceedings is sent back to the trial Court on or before 15 th July, 2010, if necessary, by deputing special messenger. 12 In view of the disposal of the appeal, Civil Application does not survive and the same is disposed of accordingly. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]