AO. 716-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 716 OF 2010 Smt. Lilla M. Kamlani ... Appellant Vs. Anjali d/o Arjun N. Mirchandani & Ors. ... Respondents *** Mr. P. S. Dani, for the Appellants. *** CORAM : Smt. R. S. DALVI, J. DATE : AUGUST 20, 2011 PC. 1. This appeal is filed challenging the order of the City Civil Court, dated 20th March, 2009, upon the premise that it is an exparte order. The defendant was served with the summons and was represented by her advocate. She had filed her written- statement making several admissions. When the suit was taken up for hearing she was not present because her advocate had returned the papers and she could not trace out the number of the suit. That judgment is in fact passed under Order 12, Rule 6 of the Civil Procedure Code, upon the defendant having admitted the plaintiff’s claim. 2. The written-statement of the defendant shows the admissions. The defendant has admitted the execution of the agreement between the parties. Under the agreement, she had AO. 716-10 - 2 - kept only one-third portion of the flat for her own use until her death. The remainder of the flat had been sold for consideration under the agreement. She was only entitled to personally live in one-third of the suit flats until her death. She could not create any third party rights or even bring in paying guests. In her written statement she has denied that she was creating third party rights. She has claimed that one German lady is only a bona fide guest. She also stated that she had no desire to earn money from the flat. She only submitted that until her death, the plaintiff had no right in the premises under the admittedly executed agreement. 3. However, the appellant had only a personal right of residence. She now lives with her married daughter in another premises. The specific personal right, therefore, could be transferred to anyone. She, therefore, cannot induct any other party, whether they are her relatives or not in the suit flat. 4. Upon her own case of the execution of the agreement in such unique terms, she has shown that there are no issues between the parties left to be decided. The learned Judge considered the plaintiff’s evidence and her defence on merits and decreed the suit on admission under Order 12, Rule 6 of the Civil Procedure Code. Her application under Order 9, Rule 13, therefore, cannot lie. The learned Judge in the impugned order considered the parameters of the aforesaid provisions correctly. Her case that she be heard was correctly negatived in view of AO. 716-10 - 3 - her admissions. The dismissal of the Notice of Motion, therefore, cannot be interfered with and there is no reason to re- hear the parties in the suit upon the defendant’s admission. Hence, appeal is dismissed. [ Smt. R. S. DALVI, J. ]