: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1775 of 2008 NOTICE OF MOTION NO.1775 of 2008 NOTICE OF MOTION NO.1775 of 2008 IN IN IN SUIT NO.356 of 1989 SUIT NO.356 of 1989 SUIT NO.356 of 1989 Shri Purushottam Narain Bokade .. Plaintiff. Versus M/s.Red Rose Construction & Ors. .. Defendants. Mr.Prashant More i/b.Ms.Kanchan Chindarkar for the plaintiff. None for the defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 23rd September, 2008. DATE : 23rd September, 2008. DATE : 23rd September, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. The plaintiff instituted the suit against defendant No.1, a partnership firm and defendant Nos.2 and 3 as its partners so as to have specific performance of Agreement dated 5.11.1985 in regard to Flat No.4 which is, more particularly, described in the prayer clause (b) of : 2 : the plaint. 2. It is seen that during the pendency of the suit, the plaintiff had taken out notice of motion being Motion No.512 of 1989 and pending the motion, the Receiver, High Court, Bombay was appointed and the plaintiff was appointed as the agent of the Court Receiver. Plaintiff admits that he took possession of the suit flat and while the suit flat was under his occupation, behind his back one person by name Mr.Roy Fernandes broke open the suit flat and took possession of the suit flat and the said Mr.Roy Fernandes is presently occupying the suit flat. 3. It is seen that the suit came to be dismissed for want of prosecution by order dated 16.10.2007. It is the case of the plaintiff that plaintiff was busy in attending to the proceedings before the Receiver and he had changed his residential address and that he was also busy in attending to his ailing sister. According to plaintiff, the Advocate for the plaintiff could not contact him and the plaintiff also one way and the other could not remain present in the court so as to attend to the suit. It is seen that on 21.8.2007, when the matter was before the court, learned Advocate for the plaintiff informed the : 3 : court that the plaintiff has taken away the papers from his office and there are no instructions coming from the plaintiff. Assurance was given to the court by the learned Advocate for the plaintiff that he would make efforts to contact the plaintiff and the matter was adjourned. Ultimately, on 16.10.2007, the court passed an order directing the plaintiff to file evidence affidavit within 2 weeks, failing which, the suit was to stand dismissed for want of prosecution without any further order from the court and no specific arrangements were provided in the said order dated 16.10.2007 as to what shall happen to the appointment of the Court Receiver, High Court, Bombay. With this, the suit came to be dismissed on 16.10.2007. 4. The plaintiff has candidly stated in his affidavit-in-support of the motion that after completing the formalities with the Court Receiver’s office, he contacted his previous Advocate and at that time, he came to know about the position of the suit i.e. dismissal of the suit. He applied for certified copy of the order dated 16.10.2007 on 29.2.2008. He received the copy on 3.3.2008. He engaged a new Advocate, who attended to the matter and filed the present notice of motion dated : 4 : 25.4.2008. 5. The plaintiff has relied upon the suit Agreement by which the defendants had agreed to sell the flat to the plaintiff and the same goes to show that the plaintiff had agreed to purchase the suit flat for a sum of Rs.1,23,000/- and on the date when the suit Agreement dated 5.11.1985 was entered into, the plaintiff had paid to the defendants, a sum of Rs.88,000/-. The Plaintiff had also paid a sum of Rs.10,000/- to the defendants some time in the month of November, 1985. A reference to these 2 figures is found in the order dated 11.3.1993 passed in Motion No.512 of 1989. The plaintiff had also deposited an amount of Rs.35,000/- in this court and a reference to this is also found in the order dated 11.3.1993 in Motion No.512 of 1989. The court while passing the order on Motion No.512 of 1989, did consider the fact that the plaintiff had paid a sum of Rs.1,23,000/- to the defendants and that is how, the court appointed a Receiver, High Court, Bombay in support of the suit flat and appointed the plaintiff as the agent of the Court Receiver without security or guarantee. All this will go to show that the plaintiff had paid full consideration to the defendants or had deposited the same in the court. At : 5 : the stage of hearing of this notice of motion, learned Advocate for the plaintiff made a statement across the Bar that the defendants had withdrawn the sum of Rs.35,000/- which was deposited by the plaintiff in or about April, 1993. All this will go to show that the defendants have received full consideration as per the suit Agreement. 6. The defendant No.3 has been served with the present notice of motion and he has accepted the same for himself as well as for defendant No.1. Defendant No.2 is reported to have expired and that is how the notice of motion cannot sustain sofar as defendant No.2 is concerned. It appears that the plaintiff does not know the particulars of the heirs of the defendant No.2 and, therefore, as of today, application for bringing heirs of defendant No.2 on record is not being filed. Defendant No.3 has not come forward to file any affidavit-in-reply to the present notice of motion. 7. I have heard learned Advocate Mr.More appearing on behalf of the plaintiffs. I have perused the record and understood the facts as to how the suit came to be dismissed. The record shows that the plaintiff was not attending to the suit as diligently as he ought to have : 6 : been. One reason which appears on the basis of the record that he was appointed as the agent of the Court Receiver and he was engulfed in the process of taking possession. It also appears that he reposed full confidence in his Advocate. It is seen that the plaintiff did not keep rapport with his Advocate and the reason which is put forth is his change of address and his sister’s illness. The reasons supplied by the plaintiff that he could not keep contact with his Advocate are not very much convincing. It is seen that the plaintiff did not prosecute the suit till its dismissal in a vigilant manner. At the same time, one important factor which weighs in favour of the plaintiff is that in a suit for specific performance for a purchase of a flat, the plaintiff has paid the entire consideration of Rs.1,23,000/- to the defendants and defendants have received the said amount because the last instalment of Rs.35,000/- which was deposited in the court by the plaintiff has been withdrawn by the defendants. 8. In my view, the plaintiff’s conduct in paying/depositing full consideration towards suit flat outweigh the other factors, namely, he was not attending to the suit diligently. The record shows that the suit : 7 : was dismissed in the peculiar facts and the plaintiff has not been able to enjoy the fruits of the litigation in the sense that after depositing the full consideration, the end result is, the suit is dismissed. In my view, in a peculiar case like this, the court has to lean in favour of the plaintiff and allow the plaintiff to prosecute the suit, particularly because the defendants have not filed any affidavit-in-reply to the present notice of motion. If the present suit is not restored, it will result in causing injustice to the plaintiff, who has deposited the entire consideration in regard to the suit flat. The plaintiff has lost on the count of taking possession of the suit flat as an agent of the Court Receiver inasmuch as some third party has trespassed upon the suit flat and there again, the plaintiff is deprived of the peaceful enjoyment of the suit flat. On this ground also, the plaintiff is a looser. 9. In my view, the only way to redeem the plaintiff to a situation which was in existence prior to 16.10.2007 is to set aside the order of dismissal of the suit and allow the plaintiff to prosecute the suit with whatever outcome which may turn out. It is also on the backdrop that the defendants are not attending to the suit in a : 8 : diligent manner. If the defendants would have opposed the prayers for restoration of the suit, things would have been different. In the circumstances mentioned aforesaid, I am inclined to restore the suit to the file of this suit by condoning the delay. 10. Sofar as the person, who is presently occupying the suit flat, certain orders are passed below the court receiver’s report so as to see that he does not create any third party rights and/or part with the possession of the suit flat till 30.9.2008. The said third party has not moved the court for setting aside the said order. In the circumstances, it is necessary to continue that order so that the plaintiff would be able to take appropriate steps to protect his interest in the suit flat by taking out appropriate interim relief application. 11. Before I part with the judgement, it is required to be mentioned that the defendant No.2 has expired and hence the notice of motion will have to be dismissed sofar as defendant No.2 is concerned. 12. For the reasons mentioned aforesaid, I pass the following order :- : 9 : O R D E R O R D E R O R D E R i) Notice of Motion is made absolute in terms of prayer clauses (a) and (b). There shall be no order as to costs. ii) Suit is restored to the file of this court. The earlier interim order directing the plaintiff as the agent of the court receiver is restored to the file of this court. iii) The person, who is presently occupying the suit flat by name Mr.Roy Fernandes has already been ordered as not to create any third party rights and/or part with the possession of the suit flat. It is hereby reiterated that the said Mr.Roy Fernandes shall not create any third party rights and/or part with the possession in respect of the suit flat till further orders. iv) The plaintiff is at liberty to take out appropriate proceedings so as to protect his interest in respect of the suit flat. : 10 : 13. Suit set down for directions on 15.10.2008. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)