1 (906)AO.368.2009 with CAA.444.2009.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL/CRIMINAL JURISDICTION APPEAL FROM ORDER NO. 368 OF 2009 WITH CIVIL APPLICAATION NO. 444 OF 2009 Bhupendranath H. Kapur ...Appellant (Orig.Defdt.No.1) Vs. Dolly A. Kapur & Ors. ...Respondents Mr. V.A. Thorat, Advocate i/b. Mr. N.H. Shukla, Advocate for the Appellant Mr. M.C. Hegde, Advocate for Respondent No.1 Mr. N.V. Walawalkar, Sr. Counsel i/b. Mr. P.M. Shah for Respondent Nos.2 & 3. CORAM : SMT. ROSHAN DALVI, J. DATED : 26TH AUGUST, 2011 P.C. : 1. There are various litigations between the parties who are essentially brothers and their family members. In one such litigation an ex- parte decree came to be passed against the Appellant herein which was sought to be set aside and which has not been allowed to be set aside resulting in this appeal. 2. The ex-parte decree came to be passed on 29th October 1999 in a suit filed by the Respondent for a declaration that the Defendant in the suit had no right, title or interest in the suit property and for injunction in respect thereof. The decree was obviously not sought to be executed because, if that was done the fact of passing of the decree would have been made known to the Defendant in the suit. 3. The Defendant in the suit being the Appellant herein had filed a 2 (906)AO.368.2009 with CAA.444.2009.sxw substantive suit in this Court being Suit No.4776/1995 on 18th December 1997. The written statement of the Defendant in that suit who was the Plaintiff who obtained the ex-parte decree was filed on 25th Jaunary 2001. That suit was for recovery of possession and other ancillary reliefs. 4. The averments in paragraph 5 of the plaint relate to the earlier suit filed in the City Civil Court by the Defendant in that suit. Despite the fact that that suit also related to the same property claimed by the Defendant it was not mentioned that that suit was decreed ex-parte. That fact was a relevant fact which was not stated. 5. The parties had had certain physical altercations also resulting in a complaint filed before the police leading to a criminal prosecution. The son of the Defendant against whom the ex-parte decree was passed was one of the witnesses on his behalf as a complainant. He was asked the status of that civil suit and the decree passed therein in his cross examination. He stated that he did know about the decree passed against his father and that he never tried to find out the fate of that suit. He happens to be an Advocate of this Court. The certified copy of the exparte decree came to be exhibited in that suit as Exhibit-130. In the order of the Sessions Court in that criminal prosecution passed on 27th August 2005 references have been made to that litigation and the ex-parte decree. 6. It is contended on behalf of the Respondent that at least from the date of the judgment in the Sessions Case, the Defendant in the suit came to know of that decree under the above circumstances. It is 3 (906)AO.368.2009 with CAA.444.2009.sxw contended on behalf of the Appellant that since the criminal prosecution is launched by the State merely upon his complaint he did not know of the observations in that judgment. It is also argued that that was attended by a different Advocate and that even his civil Advocate would not have fully grasped the observation as perceptions of the Advocates on the civil and criminal side, with regard to the importance of the relevant facts and issues, differ. 7. In yet another suit filed by the Defendant against whom the ex-parte decree came to be passed in the City Civil Court being Suit No. 3153/2006 also for recovery of possession, a written statement was filed by the Plaintiff in this suit on 14th October 2006. In paragraph 4 of the written statement filed by the Respondent herein this fact was specifically mentioned. It is from this date that the knowledge of the decree is claimed. 8. The case of the Defendant is that the suit was adjourned sine die and thereafter he lost track of the suit. In effect he had filed substantive suit for recovery of possession thereafter. A similar such suit was also filed by his brother. 9. This is a classic case of needless litigations leading to needless anxiety and the consequent failure to pursue those litigations. The parties litigated on the civil as well as criminal sides. There are various suits and cross suits with regard to the same property. The ultimate relief in all the suits on merits would be the same. The Defendant who lost track of the proceedings leading to the ex-parte decree was the architect of his own misfortune resulting from his 4 (906)AO.368.2009 with CAA.444.2009.sxw own conduct in needlessly prosecuting various suits essentially for the same relief. 10.Counsel on his behalf essentially appeals to the Court for mercy in allowing him to prosecute his suit on merits. It can be seen that because the parties have been litigating essentially for a single relief, the grant of a decree in one of the litigations ex-parte and without considering the merits of the case would adversely effect his rights in all the litigations. In view of so many litigations it cannot be determined which of the brothers was a trespasser and which of the brothers would be entitled to recovery of possession ultimately when all the merits are considered. Though it is seen that the Defendant in the suit decreed ex-parte indeed did not pursue his defence though he litigated separately, equity demands that he be allowed to do so upon he realising that he lost track of one of the many suits. 11.A judgment in the case of P.K. Ramachandran Vs. State of Kerala AIR 1998 SC 2276 relied upon by Mr. Walawalkar is one of the cases in which delay has not been condoned upon sufficient cause not being seen. There are indeed a host of judgments where under rather similar circumstances delay has been condoned. In this case it would be more so because the parties require to be heard on merits which would essentially be the same evidence in all of the aforesaid litigations. However in view of the total carelessness of the son of the Defendant, though he is an Advocate of the Court, in even finding out what happened to the suit filed against his father and of the Defendant himself adjudicating in civil as well as in criminal Courts instead of diligently defending the suit filed against himself, 5 (906)AO.368.2009 with CAA.444.2009.sxw he could be allowed to prosecute his defence on merits only upon payment of heavy costs. 12.Upon the Defendant in the suit paying costs fixed at Rs.1 lakh within 2 weeks from today the ex-parte decree passed would be set aside. 13.Consequently, the impugned order is set aside and is modified accordingly. 14.This order is stayed for 3 weeks. 15.Appeal from Order is disposed off accordingly. (SMT. ROSHAN DALVI, J.)