: 1 : 6946-11-WP-Judgment=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6946 OF 2011 M/s. Mahek Developers & Ors. .. Petitioners v/s. Mr. Godfrey D’Silva & Ors. .. Respondents ......... Mr. A.S. Khandeparkar i/b D. Brijesh for the petitioners Mr. Ashish Kamat i/b Suresh Thaker for respondent nos. 1 and 2. ......... CORAM : R.Y.GANOO, J DATE : 8th SEPTEMBER,2011. ORAL JUDGEMENT : 1. Rule. 2. Rule made returnable forthwith. Learned advocate appearing on behalf of the respondent nos. 1 and 2 waives service of the notice. By consent, petition is taken up for hearing forthwith. 3. By this petition, the petitioners have challenged order dated 18th July, 2011 passed in Notice of Motion No.3143 of 2010 in S.C. Suit No.1623 of 2009. : 2 : 6946-11-WP-Judgment=.sxw 4. The respondent nos. 1 and 2 had filed the suit against the petitioners and two other persons in the City Civil Court at Mumbai for certain reliefs. Writ of Summons was served upon the petitioners. They had engaged an advocate and attended to the said suit. According to the petitioners, when they realized that the petitioners’ advocate is not attending to the matter properly, they expressed their displeasure and that is how said advocate returned the papers to the petitioners and on account of that, the petitioners were required to engage a new advocate and, therefore, after engaging new advocate, when the matter was on board on 9th September, 2010, one learned advocate expressed his desire to file Vakalatnama and undertook to file Vakalatnama. The learned Judge of the City Civil Court, Mumbai declined to accept Vakalatnama on the ground that the suit was posted for ex-parte decree by order dated 10th June, 2010. The petitioners, claim that they applied for certified copies of the order dated 10th June, 2010 and after getting the necessary copy, took out the aforesaid notice of motion by filing the same on 26th November, 2010. The learned Judge of the City Civiil Court, Mumbai has rejected the said motion by order dated : 3 : 6946-11-WP-Judgment=.sxw 18th July, 2011 as mentioned aforesaid. 5. I have heard learned Counsel on both sides. Learned advocate for the petitioners submitted that on account of negligence on the part of the earlier advocate, the petitioners could not get proper advice and ultimately the written statement could not be filed, despite service of the writ of summons on 7th September, 2009 and that is how, order dated 10th June, 2010 came to be passed. He submitted that the view taken by the learned Judge of the City Civil Court, Mumbai that the petitioners have failed to make out a case that they have engaged an advocate, that the said petitioners neglected the matter and that the petitioners could not produce material to show that the advocate neglected the matter, is incorrect. In the matter of engagement of lawyer and steps taken by the lawyer thereto, there could not be a documentary evidence. According to learned advocate Mr. Khandeparkar after realising that order is passed against the petitioners on 10th June, 2010 directing that suit should proceed ex-parte, the petitioners have taken steps and have ultimately filed the notice of motion. Learned advocate for the petitioners relied upon the judgment in the case of Mont Blanc : 4 : 6946-11-WP-Judgment=.sxw Properties and Industries Ltd. Vs. Mont Blanc Co-operative Housing Society, 2009(2), Bom. C.R.505. Learned Counsel Mr. Khandeparkar submitted that though the suit was posted for ex- parte, till today the suit is not decided and, therefore, if the petitioners are granted time to file written statement, no prejudice wold be caused and that the respondent nos. 1 and 2 can be suitably compensated for the inconvenience which they suffered in the past. 6. As against this, learned advocate on behalf of the respondent nos. 1 and 2 supported the order passed by the learned Judge of the City Civil Court, Mumbai. Learned advocate Mr. Kamat for the respondents submitted that the petitioners have exhibited negligence even after the petitioners realised that order dated 10th June, 2010 has been passed and that they did not take active steps after engaging the new lawyer on 9th September, 2010. Learned advocate Mr. Kamat submitted that the petitioners have not explained as to why the petitioners took time to file the aforesaid notice of motion. Mr. Kamat submitted that judgment in the case of of the Mont Blanc Properties and Industries Ltd. Vs. Mont Blanc Co- operative Housing Society would not be applicable to the facts of this : 5 : 6946-11-WP-Judgment=.sxw case on the ground that even after engaging the new lawyer, the petitioners have exhibited negligence. They have not acted promptly, particularly when, they came to know that order dated 10th June, 2010 was against the interest of the petitioners. Learned advocate Mr. Kamat further submitted that the submission that payment of costs would compensate the respondent nos. 1 and 2 should not be accepted looking to the conduct of the petitioners. 7. It is to be noted that the petitioner no.1 is a partnership firm and has two partners. The copy of Roznama, annexed to the petition clearly indicates that the representative of the petitioners appeared in their capacity as defendants only on 11th August, 2009. Thereafter all along, till 9th September 2010, neither the advocate for petitioner nor any partner nor any representative appeared before the Court on the respective dates. Surely, if the petitioners had engaged an advocate, said advocate should have appeared before the Court at least once or twice. Surely, on the given dates when the advocate has not appeared, it was the duty of the petitioners to see that the case does not go unattended. This will clearly go to show that the partners of petitioners did not care to attend to the matter at all : 6 : 6946-11-WP-Judgment=.sxw after 11th August, 2009. The petitioners claim that their earlier advocate informed them that the suit is on board on 9th September, 2010 and therefore they engaged new advocate. It is seen that the petitioners came to know only on 9th September, 2010 about order dated 10th June, 2010 when their new advocate appeared before the Court. All this will clearly go to show that none of the petitioners had interest in the matter and tried to know what has happened in the suit up to 9th September, 2010. The aforesaid conduct on the part of the petitioners clearly indicates that petitioners were negligent in attending to the suit. They did not file written statement and allow the learned Judge to pass the order that suit could proceed ex-parte. 8. Assuming that the stand of the petitioners is correct as regards misconduct on the part of earlier advocate and appointment of new advocate on 9th September, 2010, the subsequent conduct on the part of the petitioners shows that they were negligent in attending to the matter. The petitioners claim that they applied for the certified copy of the Roznama on 21st September, 2010. It is not the case of the petitioners that they were not having papers concerning : 7 : 6946-11-WP-Judgment=.sxw the case. In order to understand what has happened in the matter prior to 9th September, 2010, the petitioners could have simply taken inspection of the record by following the procedure provided in accordance with law. The petitioners were not required to annex certified copy of the order dated 10th June, 2010 along with the notice of motion. Therefore, the explanation given by the petitioners that time was taken to procure certified copies of the Roznama cannot be accepted. The petitioners claim that they got certified copy of the Roznama on 27th September, 2010. The petitioners did not take active steps even thereafter. 9. The Notice of Motion taken out by the petitioners mentions that the affidavit dated 20th October, 2010 would be used in support of the Notice of Motion. The petitioners have not explained as to why the petitioners could not file the Notice of Motion soon after 21st / 27th September, 2010. They have not explained the delay in a satisfactory manner for the period 9th September, 2010 to 19th October, 2010. 10. The petitioners claim that as the Court was not available on 20th : 8 : 6946-11-WP-Judgment=.sxw October, 2010, the Notice of Motion could not be filed. This explanation given by the petitioners cannot be accepted. As per the procedure followed in City Civil Court, Mumbai, the Notice of Motion has to be filed in the Office. It is never filed in the Court directly. Hence, this explanation is untenable and cannot be accepted. 11. The petitioners claim that advocate for petitioners lost his briefcase in which original affidavit in support of Notice of Motion dated 20th October, 2010 was kept. The petitioners claim that next date after 20th October, 2010 was 26th November, 2010 and therefore, new affidavit was affirmed on 26th November, 2010 and the notice of motion was filed in the Court on 26th November, 2010. In the affidavit in rejoinder filed in the notice of motion dated 18th January, 2011, it is admitted that the advocate got his briefcase after filing of affidavit dated 26th November, 2011. This will mean that the petitioners or their advocate had necessary papers to engross new affidavit, which was affirmed on 26th November, 2011 without the papers which were in bag, which had lost. The petitioners claim that as next dated was 26th November, 2010 the Notice of Motion : 9 : 6946-11-WP-Judgment=.sxw was filed on 26th November, 2010. I have already observed that notice of motion is not to be filed directly in Court and it has to be filed in the office. Hence, this explanation cannot be accepted. 12. It is pertinent to note that the petitioners have not filed affidavit of the concerned advocate who had misplaced his bag. Hence, the word of the petitioners in that behalf cannot be accepted. 13. For the aforesaid reasons the explanation offered as to what happened on or after 20th October, 2010 till 26th November, 2010 cannot be accepted. 14. The learned Counsel for the petitioners had to concede that in the original motion, there was a note that affidavit affirmed on 20th October, 2010 shall be used in support of the notice of motion, whereas the affidavit affirmed on 26th November, 2010 has been filed in the Court in support of the notice of motion. If these are the factual aspects, one has to come to the conclusion that the notice of motion which was taken out was not supported by an affidavit to which a reference is made in the motion, namely affidavit dated 20th : 10 : 6946-11-WP-Judgment=.sxw October, 2010. A new affidavit dated 26th November, 2010 was utilised as an affidavit in support of the notice of motion. This is contrary to the procedure for taking out the notice of motion. This is also one ground to indicate the manner in which the petitioners attended to the litigation. 15. For the reasons mentioned aforesaid, I hold that the petitioners have exhibited negligence even after they came to know the order passed by the Court by which the suit was posted for ex-parte. The petitioners exhibited negligence in the matter of filing the notice of motion. It was well within the capacity of the petitioners to file appropriate notice of motion as early as possible keeping in view the delay which has occasioned prior to 9th September, 2009. The conduct of the petitioners shows that they were negligent and, therefore, the notice of motion was rightly rejected. 16. Learned Counsel appearing on behalf of the petitioners had relied upon the judgment in the case of Mont Blanc Properties and Industries Ltd. Vs. Mont Blanc Co-operative Housing Society. The petitioners would not be able to get the benefit of said judgment as : 11 : 6946-11-WP-Judgment=.sxw at every stage of the proceedings, the petitioners have exhibited negligence. 17. For the reasons mentioned aforesaid, I am rejecting the stand taken by the petitioners that they have explained the delay in a proper manner. The argument advanced by the Counsel for the petitioners that no prejudice would be caused to the respondent nos. 1 and 2 if the written statement is allowed to be taken on record, cannot be accepted. On account of non filing of the written statement, the petitioners are entitled to proceed in the suit without written statement. The argument advanced by learned advocate for the petitioners that payment of costs would compensate respondent nos. 1 and 2, cannot be applied in the facts and circumstances of the case. 18. For the reasons mentioned aforesaid, this petition is dismissed with no order as to costs. (R.Y.GANOO, J.)