1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2740 OF 2009 IN SUIT NO.34 OF 1997 Chandramohan Laxman Rane .. Plaintiff versus Ashok Laxman Rane .. Defendant Mr.Nitin Vhatkar for the plaintiff. Mr.Vachan Bodke i/by Chitnis Vaithy & Co for the defendant. CORAM : A.S.OKA, J. DATE : 23rd November 2009. P.C: . I have heard the submissions of the learned counsel appearing for the defendant in support of the notice of motion on the earlier date. I have heard the submissions of the learned counsel appearing for the plaintiff who has opposed this notice of motion. 2. The plaintiff and defendant are brothers. The plaintiff filed the present suit inter alia for declaration that both the plaintiff and defendant are entitled to 50% share each in the suit flat more particularly described in the plaint. A decree for partition and accounts was prayed for. The suit was decreed on 22nd April 2009. The prayer in the notice of motion is for setting aside the said ex-parte decree. 2 3. The learned counsel appearing for the defendant has invited my attention to averments made in the affidavit-in-support of the notice of motion. He submitted that there was an agreement entered into between the plaintiff and the defendant on 22nd September 1995 under which the plaintiff had agreed to relinquish his right, title and interest in respect of the suit flat in lieu of the defendant acquiring a self-contained flat consisting of one room and kitchen at Goregaon, Bombay at his cost. He placed reliance on a declaration dated 22nd December 1997 executed by the plaintiff which is annexed to the affidavit in support. He submitted that the advocate engaged by the defendant inadvertently failed to file vakalatnama and after the defendant became aware of the decree, he has immediately filed the present notice of motion. 4. Though the plaintiff has not filed reply, the learned counsel appearing for the plaintiff submitted that the present notice of motion invoking Rule 13 of Order IX of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) is not maintainable in as much as the decree passed cannot be said to be an ex-parte decree under Order IX of the said Code. He submitted that the writ of summons was duly served to the defendant and the ground pleaded by the defendant that his advocate did not file vakalatnama is not at all a sufficient ground to set aside the decree. He submitted that decree passed in the suit of the year 1997 may not be set aside. He submitted that the plaintiff is a senior citizen and in any case he has one half share in the suit flat. He, therefore, submitted that the notice of 3 motion deserves to be dismissed. He submitted that in fact the earlier Court noted that a valuer has been appointed by the Commissioner for taking accounts. He submitted that the plaintiff has paid a sum of Rs.25,000/- as valuer’s fee and valuer’s report is already on record. He submitted that the earlier order dated 1st October 2009 passed by this Court shows that this Court never intended to set aside the decree. 5. The learned counsel appearing for the defendant submitted that written statement of the defendant is ready. He stated that the defendant is ready and willing to re-imburse the costs of Rs.25,000/- incurred by the plaintiff. He states that the defendant is ready and willing to pay a sum of Rs.15,000/- to the plaintiff by way of costs of this notice of motion. Accordingly, a sum of Rs.40,000/- has been paid by the defendant to the plaintiff and the said amount has been accepted by the plaintiff without prejudice to his rights and contentions. 6. I have carefully considered the submissions. On plain reading of the judgment and order dated 22nd April 2009 passed by this Court, it appears that the decree passed is neither under Rule 10 nor under Rule 5 of Order VIII of the said Code. In fact, an affidavit-in-lieu of examination-in-chief was ordered to be filed by this Court and accordingly, examination-in-chief in the form of affidavit was filed by the plaintiff. This Court has observed that the case of plaintiff has been duly established on the basis of the oral and documentary evidence. Therefore, the decree of this Court is not passed in 4 default of filing written statement. Therefore, the notice of motion invoking Rule 13 of Order IX of the said Code is maintainable. 7. As far as order dated 1st October 2009 passed by this Court is concerned, it refers to appointment of valuer in execution proceedings. By no stretch of imagination the said order can be construed as order indicating that this Court was not inclined to set aside the ex-parte decree. 8. The suit is between brothers. Reliance has been placed by the defendant on alleged family arrangement between the parties under which according to him, the plaintiff agreed to relinquish his alleged right, title and interest in respect of the suit flat in lieu of the defendant acquiring a self- contained flat for the plaintiff at Goregaon, Bombay. The contention of the defendant is that he accordingly acquired a flat. 9. In paragraph 10 of the affidavit-in-support, the defendant has stated that though he had engaged services of an advocate, vakalatnama was not filed by the said advocate due to inadvertence. He has stated that he received a letter dated 15th July 2009 from the advocate for the plaintiff regarding the meeting fixed before the Commissioner for taking accounts. He stated that from the said letter, the defendant became aware that an ex- parte decree has been passed on 22nd April 2009. Accordingly, present notice of motion is taken out on 30th July 2009. 10. The case made out by the defendant is that he had engaged services 5 of an advocate who did not file vakalatnama. Considering the averments made in the affidavit in support of the notice of motion, a case is made out for setting aside the ex-parte decree. The costs amount of Rs.15,000/- has been already paid by the defendant to the plaintiff and in addition to that sum of of Rs.25,000/- has been paid to the plaintiff on account of valuer’s remuneration. To avoid any prejudice to the plaintiff, written statement which is kept ready by the defendant can be immediately taken on record and the suit can be expeditiously heard. 11. Hence, I pass the following order: : O R D E R : (a) Notice of motion is made absolute in terms of prayer clauses (a) to (c) subject to costs of Rs.15,000/-. (b) The costs amount of Rs.15,000/- and additional amount of Rs. 25,000/- has been already paid by the defendant to the plaintiff. (c) The written statement tendered by the defendant is taken on record. (d) The suit shall be set down on 14th December 2009 for settlement of issues. (A.S.OKA,J)