1 ao783-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO.783 OF 2010 ALONGWITH CIVIL APPLICATION NO. 971 OF 2010 Suresh Kesur Bhondve .. Appellant V/s. Prakash Hastimal Godiya .. Respondent ..... Mr. S. S. Kulkarni for the appellant. Mr. R. S. Khadapkar for the respondent. ..... CORAM : A. S. OKA, J. DATE : APRIL 28, 2011. P.C.:- On the earlier date, the parties were put to notice that the Appeal will be taken up for final disposal. 2. The appellant is the defendant and the respondent is the plaintiff. The respondent filed a suit for specific performance of an agreement for sale of the suit property. The suit was decreed ex- parte on 29th September, 2007. 2 ao783-10 3. An application was made by the appellant under Rule 13 of Order IX of the Code of Civil Procedure 1908 (hereinafter referred to as “the said Act”) for setting aside the ex-parte decree. By the impugned order, the learned trial Judge has declined to set aside the decree and the said application has been dismissed. 3. The learned counsel appearing for the appellant invited attention of the Court to the averments made in the application for setting side ex-parte decree. He pointed out that the appellant had engaged an advocate and that the appellant had given all the instructions to the advocate. It is stated that the advocate had informed the appellant that he will be inform the appellant to attend the Court at the stage of hearing and it was not necessary for him to attend the Court on the dates fixed. He pointed out that as a result of the advice of the Advocate, the appellant did not remain present in the trial Court except on 8th December, 2006, when his Advocate was out of station. He stated that in view of the averments made in the application, the ex-parte decree ought to have been set aside. He submitted that the advocate of the appellant did not inform the appellant about the requirement of filing of the written statement 3 ao783-10 and therefore, the appellant may be permitted to file the written statement. 4. The learned counsel appearing for the respondent invited attention of the Court to the Roznama of the proceedings. He pointed out that on 24th July, 2006, the trial Court passed an order to proceed with the suit without written statement and, thereafter, several dates were fixed in the suit. The learned counsel invited attention of the Court to the finding recorded by the trial Court on this aspect. He pointed out that on 8th December 2006, the appellant himself had moved an application at Exhibit 16 for adjournment and thus, the appellant was aware about the progress of the suit. He submitted that no interference is called for. He submitted that even if this Court is inclined to interfere, the order of the trial Court directing that the suit will be proceed without written statement may not be set aside and at the highest the suit can be ordered to proceed from the stage at which the decree was passed. 5. I have given careful consideration to the submissions. In paragraph Nos. 3 and 4 of the application for setting aside the 4 ao783-10 decree, the appellant has specifically stated that he went by the advice of his advocate. He stated that his Advocate did not inform him that a written statement was required to be filed. He further stated that he had given all the instructions and information to his advocate. He specifically stated that his advocate had informed him not to attend the Court till the suit reaches the stage of hearing. He has alleged that his advocate represented to him that he will informed by sending a letter as and when his presence is required in the Court. The appellant stated that on every date he used to meet his advocate and that is how when his Advocate was out of station on 8th December, 2006, the appellant himself attended the Court and tendered an application for adjournment. 6. The trial Court in the impugned order has pointed out that notwithstanding grant of adjournments, written statement was not filed and therefore, on 24th July, 2006, an order was passed by the trial Court to proceed with the the suit without written statement. The trial Court has recorded that on 8th December, 2006, the appellant appeared and applied for adjournment and thereafter, he did not appear. The reasons for non appearance of the appellant are 5 ao783-10 clearly set out in paragraph Nos. 3 and 4 of the application. The fact that the appellant attended the Court on 8th December, 2006, when his advocate was out of station shows that there is a substance in the case made out by the appellant that he used to regularly meet his advocate. The case made out by the appellant is that he did not attend the Court subsequently as he was not called upon by his advocate to attend the Court. There was no reason to disbelieve the case made out by the appellant. In view of the said averments in paragraph Nos. 3 and 4, a case was made out for setting aside the ex- parte decree of drastic nature. 7. It is true that while setting aside the ex-parte decree, in absence of specific prayer, this Court cannot set aside the order passed by the trial Court to proceed with the suit without written statement. However, after restoration of the suit, it will be always open for the appellant to apply to the trial Court for setting aside the said order. If such application is made, the trial Court is bound to decide the same in accordance with law after considering the objections of the respondent. 6 ao783-10 8. Considering the extent of the suit property and the location of the suit property, the respondent will have to be compensated by ordering payment of costs of Rs.50,000/-. The learned counsel appearing for the appellant states that a Demand Draft in the sum of Rs.50,000/- drawn in favour of the respondent is ready and the same will be handed over either to the respondent or the advocate representing the respondent in the trial Court. This statement is accepted. 9. Hence, I pass the following order: :: O R D E R :: i. The impugned order is quashed and set aside. ii. Misc. Civil Application No. 734 of 2008 filed by the appellant is allowed. Decree passed by the learned Civil Judge, Senior Division Pune, is set aside and Special Civil Suit No.633 of 2006 is restored to the file of the trial Court. 7 ao783-10 iii. The appellant will deposit a demand draft in the sum of Rs.50,000/- drawn in favour of the respondent on the record of the trial Court on or before 10th June, 2011. The respondent shall receive the said Demand Draft from the trial Court. iv. Payment of costs in the aforesaid manner will be a condition precedent. v. Hearing of the suit is expedited. vi. It will be open for the appellant to take out appropriate application before the trial Court for setting aside the order of the trial Court to proceed with the suit without written statement. The respondent will be entitled to raise all permissible objections to such application. If such application is made, it will be decided in accordance with law. 8 ao783-10 vii. Appeal is allowed in the above terms. viii. Civil Application No.971 of 2010 does not survive and the same is accordingly disposed of. JUDGE