1 (WP243.97) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.243 OF 1997 Shri Brij Mohan Maraj & Ors .... Petitioners. v/s Shri Kaniyalal V. Chindramani and Ors .... Respondents. Mr. R.A. Thorat for the Petitioners. None for the Respondents. CORAM: V. M. KANADE, J. DATE : 13th June, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioners. None appears on behalf of Respondents though they are served. 2. Brief facts are as under:- 3. Petitioners are original Plaintiffs and Respondents are original Defendants. A suit was filed by the Plaintiffs against the Defendants for eviction on various grounds under the 2 (WP243.97) Bombay Rent Act. Admittedly, summons was served and in spite of service of writ of summons, Defendants did not appear in Trial Court and, therefore, ex parte decree was passed on 01/07/1977. Thereafter, execution proceedings were initiated. The notice of execution was also served on 23/4/1981. This notice was made absolute and the decree was executed on 4/9/1981 and possession of the suit flat was handed over to the Plaintiffs. Thereafter, application under Order IX Rule 13 of the Civil Procedure Code was filed on 07/09/1981. Trial Court dismissed the said application on 31/8/1994. Against this order, Defendants preferred an appeal. The lower Appellate Court, however, allowed the appeal and set aside the ex parte decree passed by the Trial Court. Being aggrieved by the said order, Petitioners herein have preferred this Petition under Article 227 of the Constitution of India. 4. It is submitted by the learned Counsel appearing on behalf of the Petitioners that, firstly, delay in filing the application was not explained. It is submitted that in spite of service of writ of summons, no appearance was filed by the Defendants. No Written Statement was filed. Even after ex parte decree was passed in 1977, notice of execution was also served. It is submitted that the lower Appellate Court, however, without giving cogent reasons, condoned the delay which was caused in filing the application under Order IX Rule 13. Secondly, it is submitted that the lower Appellate 3 (WP243.97) Court was impressed by the fact that the original Defendant became owner of the suit flat since share certificate was transferred in her name and, therefore, decree could not have been passed against her. It is submitted that the lower Appellate Court could not have taken into consideration the said share certificate which was not part of the record and since the Defendants had not shown the sufficient cause for condonation of delay, there was no occasion for the lower Appellate Court to have relied on any other documentary evidence. It is submitted that without prejudice to the said submission, even otherwise, Petitioners had filed a suit in the City Civil Court. In the said suit, the Court had specifically held that original Defendant No.3 was not the owner of the premises. The learned Counsel for the Petitioners invited my attention to the additional affidavit which has been filed on behalf of the Petitioners to which a copy of the judgment and order of the City Civil Court in Suit No.3138 of 1982 is annexed. The share certificate is also annexed to the said additional affidavit, which shows that the share certificate stands in the name of the Petitioner No. 5A herein. 5. In my view, Trial Court clearly committed an error of law which is apparent on the face of record. Delay of 4 years in filing the application under Order IX Rule 13 has not been satisfactorily explained and, therefore, the lower Appellate Court could not have relied upon documentary 4 (WP243.97) evidence alone for the purpose of setting aside the ex parte decree, particularly when the said documentary evidence was not proved by the Defendants. The ex parte decree was also executed by the time application for setting aside the ex parte decree under Order IX Rule 13 was filed. Even otherwise, from the judgment and order passed by the City Civil Court, it is apparent that original Defendant could not establish that she was the owner of the suit flat. It appears that, even otherwise, Respondents/Defendants are not keen in pursuing this writ Petition. Though advocate has been appointed by the Respondents, none has appeared on behalf of the Respondents. The judgment and order passed by the lower Appellate Court, therefore will have to be set aside. 6. Writ Petition is accordingly allowed in terms of prayer clause (b). (V.M. KANADE, J.) 5 (WP243.97)