1 WP 3166 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3166 OF 2011 Kanchandevi w/o.late Sardarmal Lodha & Ors. ...Petitioners vs. Rajiv Vijay Ved ….Respondent ----- Mr.S.M. Gorwadkar i/b. Vaibhav Mehta & Associates for the Petitioners Mr. D.B. Sawant for Respondent ----- CORAM: V.M. KANADE J. DATED: 28th April, 2011 P.C. 1. The learned counsel appearing on behalf of the Petitioners and the Respondent. 2. The Petitioners are the original Defendants. They are aggrieved by an order passed by the Trial Court rejecting their application for restoration of the suit which was filed under Order 9 Rule 13 and which order was confirmed in appeal by the Appellate Bench of the Small Causes Court. 3. Brief facts are as under. The Respondent is the Plaintiff. He filed the suit against the Petitioners herein for eviction on the ground of non-user of the premises and secondly, on the ground that the Petitioner had acquired suitable alternate accommodation. The matter was initially pending in the 2 WP 3166 of 2011 Court Room no.12 and, thereafter, it was transferred to Court Room No.26. The Trial court passed an ex-parte decree on 6.9.2011. 4. It is submitted by the learned counsel appearing on behalf of the Petitioners that the Court had issued a notice informing him about the transfer of the case from Court Room No.12 to Court Room No.26 by letter dated 16.8.2001. It is submitted that the said letter was received on 1st September, 2001 and the Court's date which was mentioned in this letter was 31st of August, 2001. It is submitted that by that time, the Petitioners made inquiries in the office. The ex-parte order was passed on 6.9.2001. The Petitioners, therefore, immediately within one month filed an application for setting aside the ex-parte order. It is submitted that both the lower Courts did not take into consideration this aspect and, therefore, committed an error of law which is apparent on the face of record. In support of the said submissions, he relied on a judgment of the Apex Court in the case of Reena Sadh vs. Anjana Enterprises [(2008) 12 Supreme Court Cases 589] and also relied on another of the Apex Court in the case of G.P. Srivastava vs. R.K. Raizada and Ors. [(2000) 3 Supreme Court Cases 54]. 3 WP 3166 of 2011 5. On the other hand, the learned counsel appearing on behalf of the Respondent submitted that the Court on earlier at least 4 to 5 occasions had sent notices. First notice was sent on 21st October,2000. Second notice was sent on 21st January, 2001, third notice was sent on 24th April, 2001 and fourth notice was sent on 18th August, 2009. It was further submitted that in all 18 dates adjournments were sought by the Respondents on frivolous grounds. It was submitted that both the Courts had rightly dismissed the application of the Petitioners. 6. In my view, there is some substance in the submissions made by the learned counsel for the Petitioners. Once the matter is transferred to one Court to another, it is the duty of the Court to ensure that sufficient notice is give to both the parties before the next date. In the present case, though the next date was 31st of August, 2001, the Petitioners received the notice on 1st September, 2001 and before they could make enquiry, ex-parte decree was passed on 6th September, 2001. Apart from that, merely because he has remained absent on earlier date that itself cannot treated as a ground for non setting aside the ex-parte order since the Court condoned the absence of the Defendants by granting adjournment. Moreover, the application for setting aside 4 WP 3166 of 2011 ex-parte was filed within one month, this facts shows that the Petitioners are not diligent in pursuing the matter. Both the Courts ought to have taken into consideration the fact that the notice of transfer was served on the Defendants after the date which was given or communicated. The ratio of the judgment, therefore, in the case of G.P. Srivastava (supra) and f Reena Sadh (supra) would clearly apply to the facts of the present case. 7. Hence, impugned order of both the Courts below are set aside. The suit is restored to the file on the condition that the Petitioners are directed to deposit costs to the tune of Rs.15,000/-, to be paid to the Respondents within six weeks from today. The trial is expedited. The Trial Court to decide the suit expeditiously within a period of four months from June, 2011. No further adjournment should be taken by the Petitioners herein. If the Court finds that dilatory tactics are being adopted by the Defendants, appropriate orders may be passed. The Petitioners-Defendants and the Respondent shall report to the Trial court on 13th of June, 2011. Writ Petition is disposed of. (V.M. KANADE J.)