cra124.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 124 OF 2010 M/s. Jain Irrigations Systems Ltd. ...Petitioner Versus Zygo Flowers Limited ...Respondent ..... Mr. K.C. Sant, advocate for the petitioner Mr. V.J. Dixit, senior counsel h/f Mr. L.V. Sangit, advocate for respondent ..... CORAM: R.M. BORDE, J. DATED: 18TH APRIL, 2011 PER COURT:- 1 An application tendered by the respondent-original defendant for setting aside exparte decree passed in Special Civil Suit No. 113 of 2000 on 15.9.2004 came to be allowed. Exparte decree passed by the trial court has been set aside and the order passed by the trial court on 29.4.2010 is subject matter of challenge in this Civil Revision Application. 2 The petitioner-plaintiff instituted a suit claiming recovery of amount of Rs.10,44,414/-, being Special Civil Suit No. 113 of 2000 in cra124.10 -2- the court of learned C.J.S.D. Jalgaon. The suit came to be decreed exparte by the trial court on 15.9.2004. The defendant company presented an application to the trial court for setting aside the exparte decree in the month of March, 2005 alongwith an application seeking condonation of delay. The application seeking condonation of delay being Misc. Civil application No. 49 of 2005 was initially rejected by the trail court. The defendant, as such approached this court by filing writ petition bearing No.2073 of 2007, which came to be allowed subject to payment of costs of Rs.10,000/-. The defendant was also directed to deposit the decreetal amount to the tune of Rs.10.00 lacs in this Court, which the defendant has deposited. It is informed that the amount deposited by the defendant has been transmitted to the trial Court. After decision in the writ petition No. 2073 of 2007, the trial court took up the application tendered by the defendant for setting aside exparte decree, which came to be allowed. 3 Counsel appearing for the plaintiff-petitioner vehemently contended that the application does not satisfy requirement of Order IX Rule 13 of Code of Civil Procedure 1908, much less sufficient cause has not been demonstrated for setting aside exparte decree and as such the trial court ought not to have allowed the application. It is also contended that one of the reasons recorded in the order is in respect of transfer of suit from one court to another, in respect of which, cra124.10 -3- according to the defendant, notice was not served. Counsel appearing for the petitioner contends that in law there is no requirement of service of notice on transfer of the suit and in the instant case, as the defendant remained idle and even did not bother to file written statement, now cannot be permitted to make grievance in respect of failure to issue notice on transfer suit. 4 Counsel appearing for the respondent has supported the order passed by the trial court. 5 I have heard arguments advanced by the counsel for the petitioner at length and perused the order passed by the trial court. 6 It is to be noted that initially an application tendered by the respondent-original defendant seeking condonation of delay of 145 days in presenting application requesting to set aside the exparte decree was rejected by the trail court and as such the defendant was required to approach this court by presenting writ petition. The writ petition No. 2073 of 2007 presented by the defendant requesting for condonation of delay of 145 days in presenting application requesting for setting aside exparte decree has been allowed by this Court subject to payment of costs of Rs.10,000/-. It is also pointed out that decreetal amount of Rs.10.00 lacs has been deposited by the cra124.10 -4- defendant in pursuance to the directives issued by this Court and the said amount has been transmitted to the trial court. This is relevant consideration for not causing interference in the order passed by the trial court. Looking to the fact that the defendant has deposited the decreetal amount, it can reasonably be inferred that the defendant is not trying to evade the financial liability and is only interested in protracting the litigation. 7 Counsel appearing for the petitioner has placed reliance on the judgment of the Apex Court in the case of Parimal Vs. Veena alias Bharti (2011 AIR SCW 1233). The matter before the Apex Court was in respect of matrimonial dispute between husband and wife and decree for divorce was claimed by the husband by presenting an application on 27.4.1989 under Section 13(1) (i-a) and (i-b) of Hindu Marriage Act 1955. The wife in the said matter failed to cause her appearance and even refused to accept notice. She was required to be served through paper publication. Decree of divorce was passed by the trial court on 28.11.1989. It is also a fact noted in the said judgment that two years after passing of the decree of divorce, the husband got married and has two sons aged 17 and 18 years respectively from the said marriage. Wife presented an application 4 years after passing exparte decree of divorce requesting for setting aside the same. The trial court refused to cause interference in the cra124.10 -5- matter. Whereas the High Court on entertaining the appeal caused interference. In the background of the case, considering the expression “sufficient cause” in para 9 of the judgment, the Apex Court has also referred to the catena of cases and observed in para 11 of the judgment, which reads thus:- “11. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).” 8 Considering these aspects, the reliance placed by the appellant on the judgment cited supra is misplaced, as the facts and circumstances in which the Apex Court was required to cause cra124.10 -6- interference are greatly differed from facts arising in the instant matter. 9 It is to be noted that the suit presented by the plaintiff in the instant matter is for recovery of amount of Rs.10,44,414/- and that defendant has deposited an amount of Rs.10.00 lacs in pursuance to the directives issued by this court. The considerations applied by High Court while deciding writ petition No. 2073 of 2007, while directing condonation of delay of 145 days occurred in presenting application for setting aside ex-parte decree can also be equally made applicable and those considerations are relevant for deciding application for setting aside ex-parte decree, in the facts and circumstances of this case. 10 For the reasons recorded above, this court need not exercise its discretion and cause interference in the order passed by the trial court directing to set aside the exparte decree. Revision application is devoid of substance and same stands rejected. (R.M. BORDE, J.) rlj/