1 952.ca1166.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.952 OF 2010 Roshni Cooperative Housing Society Ltd .. Appellant Vs. Hindustan Petroleum Corporation ... Respondent Mr.S.G.Deshmukh i.b Mr.M.S.Kumthekar and Mr.S.S.Kudalkar for Appellant Mr.Minoo Sisodia and Ms Raina Bhagatwala i.b.M/s Rustomji & Ginwala for Respt no.1. Mr.M.H.Kazi for Respt nos. 2,4 and 5. CORAM : J.H. BHATIA, J. DATE : 24th August, 2010. P.C. 1. Heard learned counsel for the parties. 2. The appeal is directed against order dated 16.7.2010 passed by the trial court allowing Notice of Motion No. 1440 of 2010 whereby ex parte decree passed in suit no. 1038 of 2007 dated 3.12.2009 was set aside. The learned counsel for the appellant, who is the original plaintiff, contends that the respondent-defendant remained absent during the trial of the suit for a long time and finally on 3.12.2009 decree was passed. In June, 2009 defendant moved a Notice of Motion for setting aside the exparte 2 952.ca1166.sxw decree. According to him, such a Notice of Motion could have been filed within 30 days from the date of decree in view of the provisions of section 123 of the Limitation Act. He also contended that the trial court has not stated anywhere that he was satisfied that the defendants were prevented by sufficient cause from appearing in the matter and therefore, the impugned order is bad-in-law and is liable to be set aside. Learned counsel for defendant- respondent on the other hand pointed out that earlier Notice of Motion filed by the plaintiff for interim relief was rejected by the trial court and against that order the plaintiff had preferred an appeal before the High court and advocate for the plaintiff had sought an adjournment in the trial court on the ground that the appeal was pending in high court and also that the said advocate had on 2.4.2009 told the advocate for the defendant that he would be seeking adjournment in the suit till the Appeal was decided and in view of this the defendant and his advocate did not appear in the matter as the appeal was still pending. 3. After perusal of the proceeding sheet in the suit, it appears that on 4.5.2007 Notice of motion filed by the plaintiff was dismissed by the trial court and against 3 952.ca1166.sxw that the plaintiff had preferred A.O.No.520 of 2007. This court had not granted any stay to the proceedings in the suit and issues were framed on 8.12.2009. The record reveals that the plaintiff s advocate was seeking adjournments from January, 2009. The roznama dated 2.4.2009 reveals that advocate for both parties were present on that day and the advocate for plaintiff had submitted before the trial court that as the A.O. was pending in the high court against the order passed by the trial court he wanted an adjournment and with consent suit was adjourned. According to the learned counsel for the defendant, on that day the advocate for the plaintiff had assured the advocate for the defendant that he would be seeking adjournment till the A.O. was finally decided. In view of this statement the defendant and his advocate were not present before the trial court whenever the matter was called thereafter. It appears that from the next date i.e. 10.6.2009 till the suit was finally decreed on 3.12.09 the defendant and his counsel were absent. It is true that on 18.9.09 Civil Application filed by the plaintiff in A.O. before this court was rejected but, admittedly the A.O.is still pending. Learned counsel for respondent/defendant states that in view of the statement made by the advocate for plaintiff on 2.4.2009 the defendant and his advocate 4 952.ca1166.sxw were absent and they came to know about the ex parte decree only on 12.6.2010 and from that day within limitation of 30 days the Notice of Motion was filed for setting aside the exparte decree under Order 9 Rule 13 of the Code of Civil Procedure. 4. Taking into consideration all the facts and circumstances noted above, there is reason to believe that due to the statement made by the advocate for plaintiff on 2.4.2009 the defendant and his advocate were misled and therefore, they remained absent presuming that the suit would be adjourned till the A.O. was decided. The A.O. is still pending. However, in June, 2010 they came to know about the decree when the decree was sought to be executed and promptly they moved an application for setting aside the ex parte decree. In view of the circumstances stated above, the defendant was continuously under an impression that the suit will be adjourned till decision of A.O. and those were sufficient reason which prevented the defendant form appearing before the trial court. Taking into consideration these circumstances, I find no reason to interfere in the impugned order passed by the trial court. 5 952.ca1166.sxw 5. For the aforesaid reasons, appeal stands dismissed. As the appeal itself is disposed of, Civil Application No. 1166/10 does not survive and stands disposed of accordingly. 6. At this stage, learned counsel for the plaintiff/appellant makes a request to continue the ad- interim stay to the impugned order setting aside the decree. Stay shall continue for a period of six weeks from this date with the condition that the plaintiff shall not be entitled to act upon the exparte decree. J. H. BHATIA, J