1 WPNo.614.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 614 OF 2011 Shakuntala Shyam Sunder Mankani & anr. ... Petitioners v/s Malti Sanjay Mankani & ors. ... Respondents Mr.Shyam Mehta i/by Akshay Patil, Faisal Sayeed and Mayur Bhojwani i/by Manilal Kher Ambalal & co. for the petitioners. Mr.S.P.Kanuga i/by Mr.Hitesh Vyas for Resp.Nos.1 to 4. CORAM: B.R. GAVAI, J. DATED: 30TH MARCH, 2011 P.C.: 1. Rule. Rule made returnable forthwith by consent. 2. The petition challenges the order dated 16.12.2010 vide which the City Civil Court Judge has, dismissed the Long Cause Suit No.985 of 2006, filed by the present petitioners. 3. The parties are related to each other. The petitioners are parents of respondent No.5. Respondent No.5 was married to respondent No.1. It appears that there was a 2 WPNo.614.11 matrimonial dispute between respondent Nos.1 and 5 which has given rise to some other proceeding. It is the contention of the petitioners that there is a decree of divorce by the competent Court at Dubai, however, the same is disputed by respondent No.1. 4. The petitioners have filed the suit praying for an injunction restraining respondent Nos.1 to 4 for interfering with the possession of the suit property which, according to them, is owned by them. In the said suit, a notice of motion was taken out for temporary injunction. The same was allowed. An appeal against the said order was preferred before the this Court. This Court vide order dated 6.9.2010 in Appeal From Order Nos.921 of 2008 and 920 of 2008 disposed of the appeal by directing the Trial Court to decide the suit as expeditiously as possible and in any case preferably within six months from the date of receipt of the order. The learned Trial Court also directed to consider the Notice of Motion No.789 of 2006 filed by respondent No.1 for restoration of the possession. According to the petitioners, the said order was received by the Trial Court on 15.11.2010. Thereafter, for the first time, the suit was fixed on 2.12.2010, on which date the issues came to be framed. On the said date, the Trial Court directed the petitioners to file an affidavit in lieu of examination-in-chief by 16.12.2010. On 3 WPNo.614.11 the said date, an application came to be filed for an adjournment on the ground that though the petitioners have booked their tickets from Dubai, they could not travel as they were medically advised not to do so. The said application is rejected. Being aggrieved thereby, the present petition is filed. 5. Shri Mehta, the learned counsel appearing on behalf of the petitioners submits that the learned Trial Court has grossly erred in dismissing the suit on the ground that the orders of this Court were not complied with. He submits that on account of the bonafide reason, the petitioners could not remain present on 16.12.2010. It is submitted that the said ground was not sufficient for dismissal of the suit. 6. Shri Kanuga, the learned counsel appearing on behalf of the respondents vehemently opposes the petition. He submits that respondent No.1 who is helpless lady is being driven to unnecessary litigation by the petitioners. It is further submitted that she is made to suffer hardship at the instance of the petitioners. The learned counsel therefore submits that the conduct of the petitioners disentitles them to get an equitable relief. 7. When this Court had directed the learned Trial Judge to 4 WPNo.614.11 decide the suit within a stipulated period, the petitioners ought to have complied with the order passed by the learned Trial Judge so as to enable him to decide the suit within the stipulated period. 8. However, I find that absence on only one date was not a ground sufficient for passing such an harsh order as of dismissal of the suit. In order to compensate the prejudice that is caused to respondent No.1, the learned Trial Court could have saddled exemplary costs. I find that, in the interest of justice, the parties should get their dispute decided on merits. 9. In that view of the matter, the following order is passed:- O R D E R (i) The impugned order dated 16.12.2010 whereby dismissal of the suit is caused, is set aside. (ii) The suit is restored to the file of the learned Trial Judge to the position it existed on the date on which it was dismissed. (iii) The petitioners shall remain present before the 5 WPNo.614.11 Trial Court on 11.4.2010. The petitioner who wants to be examined as a witness will remain present before the Trial Court on 11.4.2011 on which date if the matter is not on board, the application would be made by the petitioners for taking the matter on board which application shall be allowed by the Trial Court. On the said date, the petitioner who desires to be examined as a witness, shall file his affidavit in lieu of examination-in-chief. Since the schedule is fixed by this Court and the respondents are represented before this Court, the respondent/their counsel shall remain present on the said date. The petitioners’ witness shall thereafter remain present on the dates scheduled by the learned Trial Judge for the cross-examination of the said witness. It is made clear that, no adjournment shall be granted to the petitioners’ witness on any count. Since the period fixed by this Court dated 6.9.2010 has already been expired, the Trial Judge is now directed to decide the suit within a period of three months from today. Needless to say that the parties shall cooperate the Trial Court to decide the matter within the stipulated period. (iv) The petition is however allowed subject to payment of costs which are quantified at Rs.50,000/-. The costs to be paid by the petitioners to the respondent No.1 on 11.4.2011 in the presence of the learned Trial Court Judge by the 6 WPNo.614.11 crossed cheque or by the Demand Draft. (v) The petitioners undertake to produce a copy of this order before the learned Trial Court on 11.4.2011. Parties and the learned Trial Judge to act on the authenticated copy of this order. 7 WPNo.614.11