*1* NMS-3410-11.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3410 OF 2011 IN SUIT NO.1998 OF 2006 Uttam Mulchand Amarnani ... Plaintiff V/s. Hanifa Ahmed Chohan & Ors. ... Defendants Ms. R.C. Nichani, i/b. M/s. Mahesh Jani & Co., for the Plaintiff. Mr. Firoz Pooniwala, i/b. Mr. Y.R. Shah, for Defendant Nos.1 to 6. CORAM : S.C. DHARMADHIKARI, J. DATE : 14 th December, 2011. P.C. : 1. This is a Notice of Motion by the Defendants to set aside the ex-parte order in Notice of Motion No.2253 of 2006, which was moved by the Plaintiff in the Suit. 2. The order was passed on 11th November, 2011. It is stated in the order itself that the Defendant and her Advocate are absent. 3. From the record it appears that there were more than one Defendants to the Suit. The Plaintiff has amended the plaint on 19th June, 2009, pursuant to an order dated 9th June, 2009. Now, in addition to Defendant No.1 Hanifa Ahmed Chohan, Defendant Nos.2, 3, 4, 5 and 6 have been impleaded. This Notice of Motion is stated to have been moved by Defendant Nos.1 to 4. 4. From a perusal of the order itself it is clear that the Defendant and her Advocate were absent. In this Notice of Motion, which is to set aside the ex- *2* NMS-3410-11.sxw parte order, it is stated by the Defendant No.1 that she had engaged Mr. K.P. Ravi, Advocate, since 2006. Somewhere in July, 2011, Mr. K.P. Ravi informed her that due to certain personal difficulties he was unable to attend the matter any further and requested to contact some other Advocate. The Defendant No.1, who has filed the affidavit-in-support, states that she approached the present Advocate, who requested her to get a no objection certificate from the earlier Advocate Mr. K.P. Ravi. She, therefore, approached Mr. K.P. Ravi, Advocate, for obtaining his no objection for engagement of another Advocate. However, she was informed by Mr. K.P. Ravi, Advocate, that now he will attend the matter and that is how she decided to continue with Mr. K.P. Ravi, Advocate. On the date on which the matter was listed, i.e. on 19th July, 2011, the affidavit states that no fixed date or notified date was given. However, the matter was listed before this Court on 11th November, 2011. The name of the Advocate K.P. Ravi was shown on the board. However, the record indicates that Mr. K.P. Ravi, Advocate, was absent. It is stated that the Defendant No.1 came to know of the order on 17th November, 2011. Shri K.P. Ravi was contacted thereafter by her and he informed her that he had missed the matter and did not attend it due to lack of knowledge. It is in such circumstances that she states that, although she was in regular touch with the Advocate, but he failed to appear on the date on which the ex-parte order was passed and even prior thereto failed to inform her of the adjourned date of hearing. It is in such circumstances that she prays that she has an excellent chance of succeeding on merits and, therefore, an opportunity be given to her to place her version before this Court. The ex-parte order be, therefore, set aside. 5. This is the affidavit-in-support from her on 21st November, 2011 and it appears that there is an additional affidavit filed on behalf of the Defendant No.1 and that appears to be dealing with the merits of the case. The Plaintiff has opposed this Notice of Motion by filing an affidavit-in-reply and pointing out that a false story has been placed before the Court. The entire version is false because the Defendant No.1 was represented by Mr. M.C. Moholkar, *3* NMS-3410-11.sxw Advocate. It is stated that the order passed is not ex-parte because this Court has gone through the version in the affidavit of Defendant No.1. There was an earlier order dated 11th August, 2006 passed on the very same Notice of Motion ordering the Defendant No.1 to remove herself from the suit premises. It is stated that the Defendant No.1 was not represented by Mr. K.P. Ravi but by Mr. M.C. Moholkar, whereas Advocate K.P. Ravi was Advocate for Defendant Nos.2 to 4 in the Suit. Reference is made to the earlier order and it is stated that, now, conveniently the allegations are made against the Advocate but the version of the Advocate has not been placed on record, namely, that he missed the matter. Therefore, the presumption that on account of the mistake of the Advocate or his negligence, the client should not suffer need not be raised in this case. The Defendant No.1 is in the habit of taking such stand whenever it suits and is convenient to her, although she was fully aware that the matter was adjourned repeatedly and she has failed to engage an Advocate. The Court gave her last opportunity and that is how the order passed on 11th November, 2011 cannot be said to be ex-parte or without giving her any opportunity of being heard. Therefore, it is requested that the Notice of Motion be dismissed. 6. It is on such material that I have heard Mr. Pooniwala, the learned Counsel appearing on behalf of Defendant Nos.1 to 4, and Ms. Nichani, the learned Counsel appearing on behalf of the Plaintiff. With their assistance, I have perused the Notice of Motion, the affidavits and the order dated 11th November, 2011. The order of this Court proceeds on the basis that the Defendant and her Advocate are absent. The Court records that the Defendant has appeared on earlier dates and has filed an affidavit-in-reply. The order proceeds on the merits of that matter. From the record it appears that the Court seemed to be unaware of the fact that there were more than one Defendants to this Suit. The Court has proceeded on the premise that there is only one Defendant and she and her Advocate are absent. *4* NMS-3410-11.sxw 7. Be that as it may, even if there is one Defendant and she and her Advocate were absent and the Court has passed an order on merits, it is still an ex-parte order. That order is passed without giving any opportunity to the Advocate to argue the case. The order passed is directing shifting of the Defendant to the transit accommodation. If at all there was to be an order of eviction of the Defendant Hanifa Ahmed Chohan, the least that was expected was that she is given an opportunity to argue her case and place her version. The name of her Advocate was duly shown on the board. If the name of her Advocate was shown and if he was not present to argue the case, then I do not see how the Defendant can be faulted for not remaining present and when she states before the Court that her Advocate had failed to inform her. Later on, the Advocate stated that he missed the matter and did not attend it. It is in such circumstances that I am of the opinion that the Defendant need not suffer for the fault of her Advocate. The Defendant had taken every care and it has been placed on affidavit that although she desired to engage another Advocate, her present Advocate had sought an NOC from an earlier Advocate. That is how she approached Mr. Ravi and sought his NOC and he assured her that he would continue to attend the case by regularly remaining present at the date and time when it is placed for final disposal. When he failed to do so, although assured, then this is a clear case where on account of negligence on the part of the Advocate, the parties need not suffer. 8. For all these reasons, the order dated 11th November, 2011 is set aside. The Notice of Motion No.2253 of 2006 in Suit No.1998 of 2006 stand restored to the file of this Court and be placed on board for hearing and final disposal peremptorily on 21st December, 2011. 9. The Defendant Nos.1 to 4 to pay costs quantified at Rs.5,000/-. Costs are condition precedent. (S.C. Dharmadhikari, J.)