1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.602 OF 2006 Smt. Manda M. Palwankar Age 56 years, Occ; Household, r/o C/o Mangesh Govalkar, 2/90 Saphalya Sadan, Sakharam Balaji Pawar Marg, Curry Road, Mumbai 400 013 ...Appellant. v/s. 1 Parshuram S. Gawade Adult, Indian Inhabitant, residing at Shivraj Bhavan, Room No.129, B.M.Marg, Elphinston Road, Mumbai 400 013 2 Bombay Building Repairs & Reconstruction Board, Grihanirman Bhavan, Bandra (East), Mumbai 400 050 ...Respondents. Mr. Uday R. Warunjikar , adv. For the Appellant. CORAM : J.H. BHATIA, J. DATED : AUGUST 9, 2011. ORAL JUDGMENT: 1 The present appellant and her husband Maininath had filed S.C.Suit No.7469 of 1986 seeking declaration that the defendant/respondent no.1 was in unauthorised occupation of the suit premises being R.No.129, Shivraj Bhavan, B.M. Marg, Elphinston Road, Mumbai 400 013 and had sought injunction directing the 2 defendant no.1 to remove himself from the suit premises and not to disturb possession of the plaintiff therein. Later on, it was revealed that Bombay Building Repairs & Reconstruction Board was to undertake re- development of the suit property and, therefore, occupants in the old building would be entitled to be rehabilitated in the new building. The defendant claims to be in occupation on the basis of leave and license agreement executed by father-in-law of the present appellant. In 1996 amendment was made in the plaint and the Bombay Building Repairs & Reconstruction Board was also impleaded as defendant no.2 in the suit. The suit could not be taken up for final hearing for a long time possibly because of the heavy pendency in the City Civil Court, Bombay. Therefore, sometimes in 1996 matter was kept in sine-die list. Suit came up on board sometimes in the year 2000. Thereafter, notices were issued to the parties. However, none of the plaintiffs appeared and in the result, suit came to be dismissed in default on 21st February, 2001. The present appellant, who was the plaintiff no.1, took out notice of motion for restoration of the suit. According to her, her husband had died in the year 1991 and her advocate had also died in the year 1998 when the suit was still on Sine-die list. Therefore, she lost track of the matter. She also contended that suit property is situated at Shivraj Bhavan, Room No.129, 3 B.M.Marg, Elphinston Road, Mumbai 400 013 but because of certain difficulties, she was required to stay at some other address. She is unemployed and because of weak financial condition also, she could not make proper arrangements to appear in the matter. Notice of motion was opposed. The trial Court by the impugned order rejected the notice of motion. That order is challenged in the present appeal. 2 Heard Mr. Warunjikar the learned counsel for the appellant. None appears for the respondents. On perusal of the impugned order and the relevant documents filed with the appeal, it is clear that though the suit was filed in 1986, no progress could be made till 1996. Suit was put on sine-die list and, therefore, no date was given to the parties for appearance in the matter. When the matter was on sine-die list, parties were not expected to attend the Court and go on making enquires about the future date. Suit was filed by the appellant/plaintiff no.1 and her husband/plaintiff no.2. According to her , her husband had died in 1991 and her advocate had also died in 1998 when the suit was still in sine- die list and, therefore, when the suit was again taken up on board naturally, there was no advocate to take care of the matter. She has explained the circumstances in which she could not come to know about the matter being taken on board and even about its dismissal for a long 4 time because , she had lost track of the suit. She was not residing at the given address and because of the poverty she could not engage any other lawyer to look after the matter. In the plaint, address of the plaintiffs as well as defendant was same, i.e., Shivraj Bhavan, Room No.129, B.M.Marg, Elphinston Road, Mumbai 400 013, i.e., the property in dispute. In Notice of Motion she had stated that she was residing at Room No.2, Saflya Building No.2, Room No.90-88m Near Curry Road Railway Station, Babaji Pawar Marg, Mumbai 400 012. This corroborates her contention that she had changed her address. Incidentally, in the notice of motion, it is nowhere stated that notice was served or not even though there was change in address, therefore, it may be presumed that notice was served, therefore, change of the address could not be a reason for her not getting information about the matter being taken on board. 3 The learned counsel for the appellant contended that after dismissal of the suit filed by the plaintiffs about the same property, defendant/respondent no.1 filed L.C.Suit No.4272 of 2001 seeking declaration of his right on that property. He has already received permanent alternative accommodation provided by Bombay Building Repairs & Reconstruction Board, in lieu of the suit property being 5 Shivraj Bhavan, Room No.129, B.M.Marg, Elphinston Road, Mumbai 400 013. In that suit, he has sought declaration of his right over the suit property of the present suit and consequent right of the alternative accommodation given to him. He also sought injunction against Bombay Building Repairs & Reconstruction Board in respect of the alternate accommodation. The present appellant is also defendant in that suit. That suit is still pending. The rights of the parties are still to be decided in that suit. Appellant is widow and appears to be coming from poor strata of the society. Right of allotment of permanent accommodation in the building constructed by Bombay Building Repairs & Reconstruction Board is very important and valuable right if considered from the scenario of the housing problem in the Mumbai City. In these circumstances, in spite of certain delays, latches and in spite of the fact that reasons given by the present appellant for restoration of the suit may not be very strong, in my opinion, it would be in the interest of justice that both the suits should be heard together as the evidence, which may be required to be led, may be same. 4 In view of the above circumstances, in the interest of justice, the appeal is allowed. The impugned order rejecting notice of motion is set aside. The Short Cause Suit No.7469 of 1986 is hereby restored to the 6 file. The learned Judge City Civil Court is hereby directed to take up the said suit for final hearing and disposal alongwith the L.C.Suit No.4272 of 2001 filed by the defendant/respondent no.1. (J.H. BHATIA,J.)