1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3596 OF 2008 IN NOTICE OF MOTION NO. 3986 OF 2005 IN SUIT NO. 3387 OF 2005 Smita Rajesh Chawan & Anr. ...Plaintiffs vs. Shubhangi Sudhakar Dhuru & Ors. ...Defendants and The Court Receiver, High Court, Bombay ...Respondent Mr.P.G. Lad for Applicant in support of Notice of Motion/original Defendant Nos.1 to 3. Mr.Vishal Ghosalkar for the Plaintiffs. Mr.Gaurav Agarwal i/b. M/s.JPS Legal for Respondent No.9. Mr.Tanvir Shaikh for Respondent No.11. CORAM : V.M. KANADE, J. DATED : SEPTEMBER 29, 2009 P.C. :- 1 This notice of motion is taken out by the defendant nos.1 to 3 to the suit for setting aside 2 the order passed by this Court dated 9.9.2008 in Notice of Motion No.3986/2005 in Suit No.3387/2005. In the affidavit in support of the said motion, it is stated that the said defendants were never served with the papers and proceedings in the said notice of motion and the plaintiffs by playing fraud upon the court snatched the order dated 9.9.2008. It is, therefore, submitted that the said order was passed though the said Notice of Motion was not served upon the said defendants. It is further stated that therefore, the order dated 9.9.2008 be set aside and the said notice of motion be restored to the file. The plaintiffs had taken out the said notice of motion. In the said notice of motion, ad-interim relief was granted by Justice Vazifdar and the parties were directed to maintain status quo. On the said date, Advocate P.G. Lad appeared on behalf of defendant no.6. The Court has observed that despite service of notice on the other defendants, the other defendants are not present. Thereafter, the notice of motion was finally disposed of by Justice Nirgude 3 by order dated 9.9.2008. The plaintiffs were directed to withdraw the motion as against defendant nos.7 and 8. Defendant Nos.9, 11 and 12 were present in the Court. Counsel for the plaintiffs, however, withdrew the motion as against defendant no.12 and the motion was pressed as against defendant nos.1 to 6. Justice Nirgude after perusing the affidavit of service has observed that the defendant nos.1 to 6 were properly served with the notice of motion and thereafter, proceeded to pass order on merits of the notice of motion. 2 Shri P.G. Lad who now appears on behalf of defendant nos.1 to 6 has submitted that from the said affidavit of service, it is apparent that the defendant nos.1, 3 and 5 were not served and therefore, an exparte order was passed against the said defendants and therefore, under Order 9 Rule 13, the said order was liable to be set aside since it was passed without hearing the said defendants. He, therefore, submitted that the said Notice of 4 Motion No.3986/2005 be restored. 3 In my view, the said submission cannot be accepted. At the ad-interim stage, P.G. Lad appeared on behalf of defendant no.6 which is noted in the ad-interim order dated 23.12.2005, in the said order also it has been recorded that despite notice only defendant no.6 has appeared. Though Shri P.G. Lad appeared on behalf of defendant no.6 when the Notice of Motion was heard by Justice S.J. Vazifdar on 23.12.2005, he did not represent defendant no.6 on 9.9.2008 when the matter was heard by Justice A.V. Nirgude.. He submitted that since his Vakalatnama was not filed, he did not appear on behalf of the said defendant on that date. The submission of the learned Counsel Shri P.G. Lad is that the finding recorded by Justice Nirgude that the defendants were properly served is incorrect. He submitted therefor, since the defendants were not properly served, the order is liable to be set aside. 5 4 In my view, since Justice A.V. Nirgude has observed that the defendants are served after going through the affidavit of service, it will not be open for the defendants to challenge the findings again before this court and it cannot be said, therefore, this motion is filed under Order 9 Rule 13 since the learned Single Judge has proceeded on the footing that the defendants though they were served and did not appear at the hearing of the notice of motion. The remedy of the defendants would be to challenge the order of the learned Single Judge by filing an appeal, if so advised and establish that the finding recorded by the learned Single Judge was incorrect. There is no merit in the submission made by the Counsel for the defendants. 5 Notice of Motion, therefore, is dismissed on the ground that it is not maintainable. Liberty is granted to the defendants to take out appropriate proceedings. 6 6 At this stage, learned Counsel for the defendants submits that the ad-interim order passed by Justice Savant on 10th October, 2008 be continued. This request is declined. (V.M. KANADE, J.)