1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 344 OF 2010 IN SPECIAL CIVIL SUIT NO. 522 OF 2008 1. Maruti Rama Sathe ] Age : 53 years, ] Occ.: Agriculturist ] R/o : Sathesai, Kolwali, ] Tal. Mawal, Dist. Pune ] ] 2. Shantabai Babu Taware ] Age : 71 years, ] Occ. : Household ] ] 3. Saibai Pandurang Ingulkar, ] Age : 66 years, ] Occ.: Household ] Appellants ] (Original Nos. 2 and 7 r/o Kunenama, ] defendants) Tal. Mawal, Dist. Pune ] through the Power of Attorney ] holder of Nos. 1 to 3 ] Dharmendra Surappa Shetty, ] Age : 42 years, ] R/o. : Shaha Chawl, Bhangarwadi, ] Lonavala, Tal. Maval, Dist. Pune ] ] 4. Anil Sawajibhai Vadgama, ] Age : 39 years, ] Occ. : Business, ] R/o : Kukuvilla Damodar Colony, ] Bhangarwadi, Lonavala, ] Tal. Mawal, Dist. Pune ] Vs. Anup Mohanlal Motwani ] Age : 59 years, Occ.: Business, ] Respondent 2 R/o : D-62, 6th Floor, Cozi House, ] (Original 251, Pali Hill, Bandra, Mumbai - 40 080 ] plaintiff) Mr. H.S.S. Murthy i/by Mr. Vikrant K. Narkar, Advocate for appellants. Mr. Jaydeep S. Deo, Advocate for respondent. Coram : A.P. Deshpande & Smt. R.P. SondurBaldota, JJ. Judgment reserved on : 6th April, 2010. Judgment pronounced on : 19th April 2010. Judgment (Per Smt. R.P. SondurBaldota, J.) 1. This is an appeal filed by the original defendants to challenge the judgment and decree dated 31st July 2009 of the trial Court allowing the suit filed by the respondent. It is taken up for final disposal at the stage of admission in view of the direction contained in the order dated 9th March 2010. Pursuant to the undertaking given by the appellants to the Court on that day, they have not filed compilation of all the relevant documents that form part of the record. 2. The respondent had filed Special Civil Suit No.522 of 2008 for a declaration that sale-deed dated 17th September 2007 executed by appellants No. 1 to 3 in favour of appellant no.4 in 3 respect of the suit land is null and void and not binding on him. He also sought a permanent injunction to restrain the appellant no. 4 from obstructing the respondent s possession over the suit land ’ and from creating any third party interest over the same. After the summons in the suit was served upon, appellants, appellants no. 1 to 3 appeared before the Court through Advocate Pradip Nanajkar on 8th August 2008. After receipt of writ of summons, appellants no. 1 to 3 appeared before the trial Court on 8th August 2008 and appellant no.4 on 8th April 2008 through their respective advocates. Thereafter however, they failed to file written statement and therefore the suit proceeded without written statement against them under Order VIII, Rule 10 Code of Civil Procedure. The respondent examined his witnesses and produced the documents relied upon by him. On appreciation of the oral and documentary evidence, the trial Court decreed the suit. 3. Admittedly the appellants have not filed application before the trial Court for setting aside the ex-parte decree. At ground (G) of the memo of appeal herein, they have attempted to explain non filing of the written statement. It is claimed therein that the appellants had entrusted all the papers concerning the suit to their 4 advocates and they were under genuine impression that the matter was being duly attended to. It is further claimed that both the advocates had orally assured that they would intimate the appellants about the dates and the developments in the proceedings. As the advocates failed to keep their assurance, the appellants were totally unaware of the order directing that the suit shall proceed for hearing exparte for want of written statement. Firstly, the above statements are not supported by any affidavit. Secondly, in our opinion, the same do not make out any reason for non filing written statement. If anything statements indicate complete negligence on the part of the appellants in attending to the proceedings filed against them. Therefore, in our opinion, there is no case made out by the appellants for setting aside the exparte decree. 4. As regards the appellant s challenge to the decree on merit, ’ Mr. Murthy, the learned counsel for the appellants has tried to take us through the exhaustive compilation of 25 documents running into 210 pages that the appellants seek to rely upon to contest the appeal on merit. Undisputedly these documents do not form part of the record of the trial Court. In that circumstance, they cannot 5 be looked into by the appellate court. Further, it is not possible for the appellants to produce these documents in the absence of the written statement wherein they need to plead their defence on merit based on the contents of the documents sought to be relied upon and then produce the documents by way of evidence. 5. In all the above circumstances, we find no merit in the appeal. There is no question based either on facts or in law falling for consideration of this court. The appeal therefore is dismissed. No order as to costs. (Smt. R.P. SondurBaldota, J) (A.P. Deshpande, J)