1 WP-2938-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 2938 OF 2010 Sanjay Janu Khadse, ) Age 44 years, occupation Business, ) residing at Hose NO.1428, At Post ) Jejuri, Taluka Purandhar, Dist. Pune. ).. Petitioner/Orig.Defendant) Versus 1) Radheshyam Gopala Bamble ) Age 40 years, occupation ) Business, residing at Hose ) No.1337, At Post Taluka ) Purandare, District Pune. ) 2) Sanjay Shankar Kamble, ) Advocate, High Court ) R/o at : Flat No.04, WB-4/8, ) Ajamera Complex, ) Pimpri, Pune 41108. )..Respondents Mr.P.B.Gujar,Advocate, for the petitioner. Mr.A.M.Joshi,Advocate for the respondent No.1. Mr. Ramdas Hake, i/b. S.P.Kadam, Advocate, for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 28th September, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. The respondent No.1, who is the original plaintiff, had filed Special 2 WP-2938-10.sxw Civil Suit No.311/2005 for specific performance of contract for sale of the suit premises described in para 2 of the plaint situated at land admeasuring 2 Ares out of Gat no.1094. According to him, the defendant, who is the present petitioner, had agreed to sell the property for amount of Rs.3,80,000/- and had received amount of Rs.93,000/- as earnest money. The suit was contested by the defendant by filing written statement. The trial Court had also heard an application for temporary injunction and had restrained the defendant from creating any third party interest upon the land abutting the suit house. On 11.2.2008, the suit came to be decreed. On that day and on other dates before that when the suit was fixed for recording evidence and final hearing, neither the defendant nor his Advocate had appeared. On 27.10.2009, the defendant filed an application under Order IX Rule 13, C.P.C. for setting aside the ex-parte decree along with an application for condonation of delay. He explained that he had engaged Advocate Sanjay Kamble to conduct the suit on his behalf. However, the said Advocate had never informed him about the dates fixed in that matter and, therefore, he could not appear. Even after the decree was passed on 11.12.2008, said Advocate had never informed about the said decree. On 29.7.2009, the Bailiff of the Court had come to his house for execution of the decree. On that day, the bailiff returned because the defendant was not present at his house. Next day, the defendant went to the District Court to enquire and on that day also he could not contact his Advocate 3 WP-2938-10.sxw Sanjay Kamble, but from some other source, he came to know that the suit was decreed on 11.12.2008. After getting this information, on 30.7.2009 itself he moved an application for certified copy of the judgment and decree which he got on 1.9.2009. After that, he contacted an Advocate at Mumbai. The said Advocate, on 16.9.2009, asked him to obtain certified copies of Roznama. On 17.9.2009, he applied for the same and on 14.10.2009, he got certified copies. Then again he contacted the lawyer at Mumbai, who advised him to file an applicatin for setting aside the ex-parte decree before the trial Court. From 17.10.2009, there were Diwali holidays to the Court. On 27.10.2009, he filed the application. 3. The application was opposed and all the reasons given by the defendant were denied by the plaintiff. The trial Court, being not satisfied with the explanation, rejected the application. Hence, this petition. 4. On perusal of the Roznama, it appears that initialy, the defendant used to appear. His Advocate also appeared. He had filed written statement on 20.6.2005 and had He also filed reply to the application Exhibit 5 for interim relief. The matter was posted on several dates for hearing of the application Ex.5. During that period, the Advocate for the defendant used to be present. On 31.1.2006, the interim order was passed on application Ex.5. Roznama reveals 4 WP-2938-10.sxw that after that for about two years, the case was not taken on board. It was taken up on 17.3.2008 when the plaintiff filed his own affidavit in evidence and applied for filing certain documents. The matter was adjourned for cross- examination to 15.4.2008. Thereafter, whenever the matter was on board, neither the defendant nor his advocate was present and finally the suit was decreed on 11.12.2008. 5. From this, it appears that after the order was passed on the Application Ex.5, no further progress was made in the matter for about two years. The defendant had engaged an Advocate on his behalf and therefore, when he matter was not being taken up on board for long time, he was not expected to come to Court again and again to find out the status of the matter. He could rely on the communication from his Advocate about further developments and naturally, he would come to the Court if the Advocate would ask him but in this case, even the Advocate did not appear. Even though the Advocate Sanjay Kamble, who is impleaded as respondent No.2 in this petition, has filed his affidavit in reply, he has not given any details as to when he had informed the defendant about dates. Even though in para 4 of the affidavit, it is stated that defendant had taken away the papers and proceedings from him, he has not given dates of the same. Even though he stated that the defendant had told him that he 5 WP-2938-10.sxw would take care of the matter, he stated that after arguing the application on 13.1.2006 he i.e. the advocate had attended the proceedings on 4 - 5 occasions till 15.9.2008. If the brief was taken away from him, after disposal of the application Ex.5, it is not clear what was the reason for him to attend the Court thereafter. It is material to note that from 17.3.2008, the matter was on board for evidence or for cross-examination or for arguments, but not on a single date, said Advocate had ever appeared. The Roznama of the trial Court does not provide corroboration to the contentions of the Advocate Sanjay Kamble in his affidavit. Taking into consideration these facts, there is reason to believe that the Advocate had neither attended the Court himself nor he had informed the defendant about the progress in the matter. Therefore, it can also be believed that the defendant came to know about passing of the ex-parte decree for the first time on 29.7.2009 and he has explained the delay as to how thereafter he made applications for obtaining certified copies, getting legal opinion and then finally filing application for setting aside ex-parte decree and condonation of delay. 6. In my view, the explanation given by him was satisfactory and there was no reason to disbelieve the same. The learned trial Court took very technical view in rejecting the application for condonation of delay. In the present case, the dispute is about the land with house standing on it. The stakes are very heavy for 6 WP-2938-10.sxw the parties and particularly for the defendant. 7. In M.K. Prasad v. P.Arumugam AIR 2001 SC 2497, the facts and circumstances, to some extent, were similar to the facts of the present case. In that case also, the Counsel for the appellant had left without informing him and on that ground, the application for condonation of delay was filed along with the application for setting aside the exparte decree. The Supreme Court observed thus in paras 6:- "6. In any case in which a decree is passed ex parte, the defendant can apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Art. 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of S. 5 of the 7 WP-2938-10.sxw Limitation Act and seek its condonation by satisfying the Court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the Statute." 8. The learned Counsel for the respondent-plaintiff placed reliance upon Mahabir Singh vs. Subhash & Ors. (2008) 1 SCC 358. In fact, in that case the Supreme Court only held that for the purpose of limitation in respect of applicability of Article 123 of the Limitation Act, period of limitation should be reckoned from the date of knowledge of passing of the ex-parte decree. In that case, the application was moved 1-1/2 years after the knowledge of the decree even according to the admission of the defendant. The facts of that case are totally different. 9. In view of the legal position explained by the Supreme Court in M.K.Prasad (supra), and the facts of the present case, I find that it would be in the interest of justice to condone the delay, which was properly explained by the defendant. The learned trial Court failed to appreciate the reasons given by the defendant and committed error in rejecting the application. 8 WP-2938-10.sxw 10. For the aforesaid reasons, the Writ Petition is allowed. The impugned order is set aside. The application moved by the defendant/petitioner is hereby allowed. Delay is condoned and the ex-parte decree stands set aside. The trial Court shall proceed with the suit as per law. The parties shall appear before the trial Court on 15.11.2010. Rule made absolute accordingly. (J.H.BHATIA,J.)