: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3223 OF 2008 IN SUIT NO.1485 OF 1998 Shantilal C. Rathod & Anr. ....Plaintiffs V/s. Satish S. Gupte ....Defendant Mr.R.C. Shah i/b M/s.Vinod Mistry & Co. for the Plaintiffs. Mr.E.P. Bharucha, Senior Counsel with Mr.Vinod Kothari and Mr.Nitin Parekh i/b M/s.Apex Law Partner for the Defendant. CORAM : S.J. VAZIFDAR, J. DATED : 14TH JANUARY, 2009. P.C. : 1. This is a Notice of Motion for setting aside of an ex-parte order dated 26.9.2007. Two contentions have been raised on behalf of the Plaintiffs. Firstly, it is contended that the Notice of Motion is not maintainable. The merits of the Defendant’s contention have also be considered. 2. The Defendant finds himself in an extremely unfortunate situation. He has for ten years been suffering from various maladies including cancer and has undergone aggressive medical treatment and is undergoing treatment for the same. : 2 : 3. The ex-parte decree is passed in a suit for specific performance of an alleged oral agreement for sale of an extremely valuable property namely about 10,000 sq.ft of the land situated in Mahim for a sum of Rs.20,00,000/-. The Plaintiffs are builders. 4. At the outset, it is pertinent to note that though the suit was filed on 11.2.1997 after removal of the office objections, it was admitted only on 13.4.1998. Further for over ten years, the summons was not even served upon the Defendant. It was served only on 26.7.2006. In the meantime, interlocutory applications had been taken out by the Plaintiffs which however were served on the Defendant. Be that as it may, there was no requirement for the Defendant to file the written statement atleast for a period of twelve weeks after 26.7.2006 i.e. the date on which the summons was served. 5. In the affidavit in support of the Notice of Motion, the Defendant has set out in detail the extremely unfortunate circumstances he found himself in. It is sufficient to set out only paragraph 3 of the affidavit in support which indicates the same and reads as under :- "3. I say that the present Suit is filed for specific performance of an alleged oral Agreement by the Plaintiffs for sale of the : 3 : suit property, the terms whereof have been set out in paragraph 4 of the Plaint and in alternative there are two prayers. The first prayer is for decree of damages and the second for refund of the consideration of Rs.20 lakhs paid by the Plaintiff to me together with interest. I say that in 1998, I suffered attach of "Carcinoma of Lower Esophagus" as a result of which I was unable to live a regular and healthy life. I say that since then I have had on regular basis faced with various other illness and could not recoup from the same. I say that my health was deteriorating on daily basis and I was not conducting my daily affairs including attending to my work and other related issues including the suit in question. I say that despite regular mediation and treatment from the regular doctors my health did not improve and to the contrary was deteriorating on daily basis and such situation continued over the period of next 4 to 5 years. As there was no improvement in my health, for the treatment of the same I was admitted in the Lilavati Hospital on 31.07.2003 where I was operated upon and one third of the "LOWER ESOPHAGUS" was removed. I say that I was discharged from the hospital after 22 days on 22nd August, 2003. I say that after discharge from the hospital, I was very weak, in poor health and needed constant medical care. I say that after surgery for removal of one third of "LOWER ESOPHAGUS", there were further complications for which I had to do the Upper GI Endoscopy on 28th August, 2004 and was confined to complete bed rest. In the month of May 2005, again I had to undergo "ENDOSCOPY" for the Ulcer of the "MID OESOPHAGUS". I say that because of the further complications and ailment in the "UPPER ESOPHAGUS" I again had to do "ENDOSCOPY" at Shreeji Imaging. I was diagonised with "REFLUX ESOPHAGUS" i.e. "SQUAMOUS CARCINOMA" at Lilavati Hospital. I say that since I am about 69 years of age, the surgery and subsequent recurrent problems of Ulcer and the heavy medication which I had to take to curtail the Tumour made me weak, feeble and I was unable to attend to my day to day routine. Beside, the Doctors treating me had also advised me complete bed rest. I : 4 : say that when the decree was passed I was in bed and unable to move around and had no care taker beside me. I say that it is only in the month of December, 2007 after some recovery, I was permitted by the doctors to move around. I say that from April, 2005 till 1st week of December, 2007 I was confined to bed, as I was advised complete bed rest by the doctors treating me for the aforementioned ailments. I say in view of my ill health, I was prevented from causing appearance before this Hon’ble High Court subsequent to receipt of the Writ of Summons and at the time of hearing of the Suit. I say that in view of my continuous medical treatment and ill health, I was unable to move around and not attending to my work and other related issues. I was not informed by the Advocate who had earlier appeared at the interim stage that no Vakalatnama was filed in the suit and that I am required to appear. I say that I was unaware of the service of writ of summons upon me and hence was not in a position to give instructions to any one including the Advocate who appeared earlier to take necessary steps to protect my interest in the matter. I say that due to my being confined to bed I was unable to engage and instruct an Advocate to appear in the above matter for me and also on my behalf. Hereto annexed and marked Exhibits "A" is the copy of the Doctor’s Certificate, Exhibit "B" is the copy of Diagnostic Report of Bhartiya Arogya Nidhi Hospital, Exhibit "C" is the copy of bill of Shreeji Imaging and Exhibit "D" is the copy of Report of Lilavati Hospital given in respect of my treatments, ailments and status of my health. I crave leave to refer to/rely on documents in that behalf." . There is nothing to indicate that what is stated therein is incorrect. In view thereof, it is understandable that the Defendant has made out more than just a strong prima-facie case for setting aside an ex-parte decree. A refusal to pass an order would be unfair to the Defendant who has already suffered : 5 : considerably and continue to suffer from the above illness. Added to this is the fact that the summons itself was served only after ten years. It is pertinent to note that the Plaintiffs themselves had remained absent on several occasions namely on 3.3.2006, 10.3.2006 and 10.4.2006. It is important to note that the Defendant had in fact participated in the interlocutory proceedings throughout. 6. Mr.Shah submitted that the decree has been passed under Order 8 Rule 5 of C.P.C. and not under Order 9 Rule 6 of C.P.C. and the Notice of Motion is therefore not maintainable. 7. A plain reading of the judgment and decree indicates clearly that it was passed under Order 9 Rule 6 of C.P.C. The very first sentence of the judgment and decree states that the suit is listed under the caption "undefended suits for ex-parte decree". It is true that on 19.9.2006, the following order was passed :- "No W/S is filed. Suit transferred to the list of Undefended Suits. To be on board after 2 wks." . The order did not specifically state that it : 6 : was for an ex-parte decree. The board however showed the matter as an undefended suit for ex-parte decree. The judgment indicates that the learned Judge proceeded on that basis while passing the ex-parte decree. The learned Judge does not indicate that though the board listed the suit under the said caption, he was not proceeding with the matter as such. This is further fortified by the following observations of the learned Judge in paragraph 8 :- "8. As stated earlier, the Defendant has not chosen to defend the suit and therefore, the suit has been listed under the caption "Undefended suits for ex-parte decree". 8. The mere fact that the Plaintiffs chose to lead evidence before the learned Judge is not conclusive of the matter. Even while proceeding under Order 9 Rule 6 of C.P.C., the Court is entitled to do so. 9. In view of the judgment of the Division Bench of His Court in Dhanwantrai R. Joshi v. Satish J. Dave and Ors., 1999(1) BCR 97 and in view of the above observations, this Notice of Motion is maintainable. 10. In the circumstances, the Notice of Motion is : 7 : made absolute in terms of prayers (a) and (b). The written statement shall be filed within eight weeks from today.