1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6276 OF 2009 Mohinderkumar C. Mehta & Ors. .. Petitioners versus Amriksingh & Ors. .. Respondents Mr.R.Narula alongwith Mr.Dasgupta i/by Jhangiani Narula & Associates for the petitioners. Mr.M.P.Vashi i/by M.P.Associates for the respondent Nos.1 to 5. CORAM : A.S.OKA, J. DATE : 17th September 2009. ORAL JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The challenge in this writ petition under Article 227 of the Constitution of India by the petitioners who are the legal representatives of the original plaintiff is to the order of the trial Court dated 15th January 2009 by which Interim Notice No.550 of 1990 was restored to file of the trial Court subject to payment of costs 2. The petitioner are the legal representatives of the original plaintiff. The suit was filed by the plaintiff in the year 1984 against the predecessor respondents for eviction. The respondents-plaintiffs are the legal representatives of the original defendant. The ex-parte decree was passed in the said suit on 17th September 1985. Interim Notice No.286 of 1988 was taken out by the original defendant for setting aside the ex-parte decree. The said notice was taken out on 28th March 2 1988. On 26th June 1990, the said Interim Notice for setting aside the ex-parte decree was dismissed for default. On 14th August 1990, Interim Notice No.550 of 1990 which is subject matter of the present petition was taken out by the original defendant for restoration of Interim Notice No.286 of 1988. It is this Interim Notice No.550 of 1990 has been restored by the impugned order. 3. On 2nd January 1986, the original plaintiff expired. Interim Notice No.796 of 1991 was taken out by the original defendant for bringing the legal representatives of the original plaintiff on the record of the said Interim Notice No. 550 of 1990. Even the said Interim Notice No.796 of 1991 was dismissed in default and therefore Interim Notice No.136 of 1996 was taken out by the original defendant praying for restoration of Interim Notice No.796 of 1991. On 21st April 1997 Interim Notice No.136 of 1996 was made absolute and Interim Notice No. 796 of 1991 taken out by the original defendant for bringing the legal representatives of the original plaintiff on record was restored to the file. On 19th June 2000 both the pending notices, namely, Notice No.550 of 1990 and 796 of 1991 were dismissed for default. In July 2000, the defendant filed Interim Notice No.488 of 2000 in which a prayer was made for restoration of Notice No.796 of 1991. The said notice was allowed and Interim Notice No.796 of 1991 was restored to the file. The said Notice No.796 of 1991 was eventually made absolute and heirs of the plaintiff were brought on record in Notice No.550 of 1990. After the amendment was carried out on 23rd February 2002, the original defendant expired. Therefore, the present respondents filed Interim Notice No. 1567 of 2003 for bringing their names on record of the Interim Notice No.550 of 1990. When the said Interim Notice No.1567 of 2003 was on board, on 21st July 2004 the trial Court directed the respondents to produce the death certificate of 3 the original defendant. It is stated that on 10th August 2004, the trial Court noticed that Interim Notice No.550 of 1990 was already dismissed for default on 19th June 2000 and was not restored till that date. Therefore, on 23rd September 2004 the respondents filed Misc.Notice No.679 of 2004 for restoring the Notice No. 550 of 1990. The said Notice for restoration was dismissed by the trial Court and an appeal was preferred by the respondents. During the pendency of the appeal, the Interim Notice No.1567 of 2003 taken out by the respondents before the trial Court for bringing their names on record was dismissed by the trial Court. By order dated 15th January 2009 the appeal bench of the Small Causes Court allowed the appeal and restored Notice No.550 of 1990. 4. The learned counsel appearing for the petitioner submitted that as a result of the consistent defaults on the part of the respondents or their predecessor, a decree passed in the year 1985 in the suit of the year 1984 still continues to be subject matter of pending proceedings. He pointed out that the facts on record disclose that the respondents and their predecessor were continuously negligent in prosecuting the proceedings and therefore number of proceedings taken out by them were dismissed in default. He pointed out that Interim Notice No.550 of 1990 for restoration of the notice taken out for setting aside ex-parte decree was dismissed for default on 19th June 2000 and though the original defendant had knowledge about the said order, he did not apply for restoration of the said notice during his life time and application for restoration was made by the respondents in September 2004. He submitted that there is no explanation whatsoever for the said delay of more than four years. He submitted that no argument is necessary to show that the respondents and their predecessor are guilty of negligence. As a result, the petitioners have suffered prejudice. He submitted that there was no 4 explanation for delay of four years and therefore the Interim Notice No.550 of 1990 could not have been restored. He submitted that the grounds taken by the respondents in Misc.Notice No.679 of 2004 are false to their knowledge. In as much as respondents and their predecessor were all along aware of the fact that the Notice No.550 of 1990 was dismissed way back on 19th June 2000. He pointed out that in any event, the Interim Notice No.1567 of 2003 taken out by the respondents for bringing their names on record stands dismissed during the pendency of the appeal and therefore Interim Notice No.550 of 1990 cannot proceed. He, therefore, submitted that the impugned order deserves to be quashed and set aside. The learned counsel appearing for the respondents supported the impugned judgment and order. 5. I have carefully considered the submissions. In so far as this petition is concerned, only limited controversy is whether order of the Appellate Court restoring the Interim Notice No.550 of 1990 is justified. It must be stated here that on 19th June 2000, the said Interim Notice No.550 of 1990 and Interim Notice No.796 of 1991 filed therein for bringing the legal representatives of the deceased plaintiff on record were dismissed for default. Immediately, on 11th July 2000 the original defendant took out Interim Notice No.488 of 2000 for setting aside the said order dated 19th June 2000 but the prayer made therein was confined to restoration of Interim Notice No.796 of 2009. The said Notice No.488 of 2000 was allowed and Interim Notice No.796 of 1991 was restored to the file. It is pertinent to note that the said Interim Notice which was restored was for bringing the legal representatives of the original plaintiff on record in Interim Notice No.550 of 1990. On 21st June 2001, the said notice No.796 of 1991 for bringing heirs of the plaintiff on record in Interim Notice No.390 of 1990 was 5 made absolute and in fact the original defendant was permitted to carry out amendment to said Interim Notice No.550 of 1990. Thereafter, the original defendant expired. The notice No.1567 of 2003 taken out by the respondents herein for bringing their names on record in Interim Notice No.550 of 1990 was entertained by the trial Court and in fact a direction was issued in the said notice to the respondents to produce death certificate of the defendant. The specific case of the respondents is that on 10th August 2004 the trial Court noticed that Interim Notice No.550 of 1990 stood dismissed for default on 19th July 2000 and the same was not restored. The fact that the trial Court allowed Interim Notice No.796 of 1991 and even allowed the respondents to carry out amendment in the Interim Notice No.550 of 1990 for bringing the legal heirs of the plaintiff on record shows that all the parties concerned were under impression that the Interim Notice No.550 of 1990 was pending. Even an application made by the respondents for bringing their names on record was entertained by the trial Court. All these aspects show that till August 2004, everyone was under impression that Interim Notice No.550 of 1990 was pending. Thereafter on 23rd September 2004 an application for restoration of the said Interim Notice No.550 of 1990 was made by the respondents which has been allowed by the impugned order. The effect of the impugned order is that the said Interim Notice No.550 of 1990 for restoration of application for setting aside the ex-parte decree has been restored and it will be for the trial Court to decide whether a case is made out for setting aside the ex-parte decree. It is not possible to find fault with the discretionary order passed by the Appellate Court of restoration of Notice No.590 of 1990. It is obvious that the effect of dismissal of Interim Notice No.1567 of 2003 will have to be considered by the trial Court when Interim Notice No.550 of 6 1990 is taken up for hearing and all contentions of the petitioner in that behalf are expressly kept open. 6. Subject to what is observed above, the writ petition is rejected. Hearing of Interim Notice No.550 of 1990 is expedited and the said notice shall be disposed of before the end of November 2009. (A.S.OKA,J)