-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.699 of 2008 Pramod Cooperative Housing Society Ltd. ..Petitioner vs. 1. The Maharashtra Housing and Area Development Authority and others ..Respondents Shri M.S.Bhandari i/b Smt.Suman Jain for petitioner. Shri M.V.Savant i/b Shri S.V.Parkhe for respondents. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 12th February, 2008 12th February, 2008 12th February, 2008 P.C. P.C. P.C. 1. By this petition under Article 227 of the Constitution of India, the petitioner Cooperative Housing Society is challenging the order dated 23rd August, 2007 in Notice of Motion No.2840 of 2007 in S.C.Suit No.6165 of 1996. 2. The Notice of Motion was taken out on 14th August, 2007 praying for quashing and setting aside the exparte order dated 1st February, 2002 and with a request that the delay in preferring the motion be condoned. -2- 3. It was the case of the petitioners/original plaintiffs that defendant no.3 appeared at the interim stage and subsequently he expired. After his death, defendant no.3’s heirs were added as defendants in pursuance of the order in Chamber Summons No.6261 of 2001. 4. On 1st February, 2002 in absence of the plaintiffs and their Advocate the Court passed the order dismissing the suit against defendant nos.3a to 3d only on the ground that record does not show service of writ of summons. The petitioners/plaintiffs pointed out that there was a change of Advocate and further that representatives of defendant no.3 having already appeared in the matter so also heirs having brought on record, in the peculiar facts of this case, the order dismissing the suit against the heirs be recalled. 5. This request was opposed by defendant no.3(b) on the ground that motion itself was not maintainable. It was contended that five and half years have lapsed from the date of order of dismissal of the suit and further the writ of summons being not issued is the ground for dismissal of the suit. There is no provision to -3- recall such an order and, therefore, the Notice of Motion be dismissed. It was contended that during the course of filing of the suit, several events have taken place and it is not permissible now to pray for restoration. 6. Reliance was placed upon the decision of this Court in the matter of V.Pankajkshi Vasudevan and others Vs. Jayant J.Patwardhan (2006(1) Mh.L.J.784). 7. The Trial Court has observed that the Notice of Motion is taken out by resorting to the provisions of Order 9 Rule 4 of the Code of Civil Procedure. The Trial Court observed that the lands of the plaintiffs and defendant no.2 are adjacent to each other. The original defendant was member of defendant no.2 society. There was a small piece of land on the boundary of the land of two societies. The case of the plaintiffs is that such a small plot cannot be allotted to third party or members of any society whereas the case of original defendant no.3 is that the first defendant Housing and Area Development Authority has allotted the plot to him. -4- 8. The Trial Court has observed that the roznama of 5th March, 2005 shows that the writ of summons came to be served on defendant nos.3(a) to 3(d) despite dismissal of the suit as against them and such service has no legal significance because the suit was already dismissed on 1st February, 2002. It is on such grounds and holding that five and half years delay is not explained but at the same time the learned Judge observed that request of the original plaintiffs can be accepted by awarding costs to the heirs of defendant no.3 but placing reliance upon this Court’s decision he proceeded to dismiss the Notice of Motion. 9. In my view, the learned Judge lost sight of the fact that every such order is capable of being recalled and set aside. There are inherent powers apart from the powers provided under the specific provisions. It is not as if this Court has ruled that the court in such circumstances is powerless to recall the order although it would result in injustice to the litigant. In the present case, the learned Judge was very well aware that the heirs of deceased defendant no.3 have been brought on record. Without noticing the order passed by -5- the Court dismissing the suit as against them, the writ of summons was served upon them. Once the learned Judge noticed that this was a case where under a bonafide mistake instead of praying for recalling of the order dismissing the suit the original plaintiffs went ahead and served the writ of summons. Thereafter they have explained that the delay has occurred on account of change of Advocate and they prayed that they are willing to compensate the heirs by payment of costs. This request was accepted as is clear from the order passed by the learned Judge, yet, he found himself bound by the judgment of this Court reported in 2006(1) Mh.L.J.784 (supra). 10. Reliance was placed before me by the learned Counsel appearing for defendant no.3(b) on this decision. The said decision must be seen as restricted to the facts of that case. The original plaintiffs before this Court filed the suit which came to be dismissed for want of prosecution on 16th April, 1993. The application to set aside the said order was filed on 31st March, 1997 but it was dismissed on 4th April, 1997 on the ground that in the suit filed in the year 1989 for more than 3 -6- years no steps were taken to serve the writ of summons on the sole defendant. Para 4 of the order passed by the Division Bench of this Court would demonstrate that the facts and gross delay was totally unexplained. It is in such circumstances that this Court disbelieved the version of the original plaintiff and even their Advocate who had filed the personal affidavit. It is in such circumstances and holding that there is gross negligence on the part of the original plaintiff that this Court dismissed the suit and that order was upheld in appeal by the Division Bench. Perusal of this decision would reveal that nowhere it is observed that the Court is powerless to entertain the request or that though the sufficient cause has been pointed out the request cannot be granted. 11. On the other hand, the Supreme Court has time and again emphasised that opportunity must be given to the litigant save and except in gross cases to contest the litigation on merits. The Supreme Court has held that no litigant is at advantage if an opportunity is denied to contest the case on merits unless the Court is of the opinion that the party is callous or negligent or the application seeking restoration -7- lacks bonafides, the Court must ordinarily grant such a request. If any reference is needed the decision of the Hon’ble Supreme Court reported in A.I.R.2003 S.C.4244 (Mithailal Dalsangar Singh and others Vs.Annabai Devram Kini and others) is enough. Applying the tests laid down in this decision, the learned Judge ought to have condoned the delay in taking out the Notice of Motion by imposing costs on the petitioners/original plaintiffs and granting them last opportunity to proceed with the matter as against the heirs and legal representatives of the deceased defendants. Such an opportunity could have been granted, in the peculiar facts of this case, when the heirs are contesting the Notice of Motion and atleast one of them had filed an affidavit opposing the request of the original plaintiff. Hyper technical view of the matter should not have been taken in the peculiar facts of this case. 12. For the reasons aforestated, the impugned order cannot be sustained. It is accordingly quashed and set aside. The Notice of Motion is made absolute in terms of prayer clauses (a) and (b) subject to the petitioners/original plaintiffs paying the costs quantified at -8- Rs.10,000/- to defendant nos.3(a) to 3(d). Shri Bhandari states that the writ of summons if already not served would be served upon these defendants within a period of four weeks from today. Costs to be paid within a period of four weeks from today. The Trial Court shall proceed with the suit thereafter on merits and in accordance with law. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)