1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 280 OF 2009 IN NOTICE OF MOTION NO. 1622 OF 2007 IN SUIT NO. 2865 OF 1994 M/s Woodlands Garden Cafe .. Appellant Versus Shankar Bhima Pawar and another .. Respondents Mr Omar Khaiyam Shaikh i/by Mishra & Co. for the Appellant Mr. Shailesh Shah a/w Ms. Naina Kapadia i/by Pandya Gandhi & Co. for the respondents CORAM : B.H. MARLAPALLE & SMT. V. K. TAHILRAMANI, JJ. DATE : 4 th March, 2010 P.C.: 1. Heard Mr. Omar Sheikh, instructed by M/s. Mishra & Co. for the appellant and Mr. Shailesh Shah appears for the respondents. 2. In Suit No. 2865 of 1994 the appellant was defendant No.1-A. The plaintiffs and defendant Nos. 7 to 23 are the beneficiaries of the private trust known as Parikh Goradia Trust. Defendant Nos. 2 to 6 are 2 the trustees of the same trust. The defendants appeared in the suit through an Advocate but did not take any steps by filing written statement to contest the suit. 3. It was alleged by the plaintiffs that by an agreement purportedly executed on 6 th October, 1978, the trust had opted to sale a part of the trust properties to defendant no.1 and 1(A) and defendants have caused considerable damages to the properties retained by the trust. It was also claimed that defendant no.1 and 1(A) had also prevented the trust from utilising the property, admeasuring 5000 sq.feet retained by the trust. 4. The learned trial Judge noted that the learned advocate representing the defendants had placed before the Court a copy of the letter dated 20 th September, 2003 addressed by him to defendants 1 and 1(a) and claimed that he had no instructions even when the decree was passed on 7 th October 2003. Under these circumstances, the suit came to be decreased as follows: “ i)Defendant Nos. 1 and 1(a) are ordered and decreed to pay to the Plaintiff and the beneficiaries of the said trust a sum of Rs.77,02,500/- with interest thereon at the rate of 6% per annum from the date of filing of the suit till payment and/or realisation. 3 ii) The suit is also decreed in terms of prayers (b), (c) and (g) against Defendant Nos. 1 and 1(a).” 5. Notice of Motion No.1622 of 2007 was taken out by the present appellant to set aside the decree dated 7 th October, 2003 and the same has been dismissed for non prosecution by the impugned order dated 2 nd March,2009. 6. The learned trial Judge, noted that the motion had appeared on board on 22.10.2008 when none appeared for defendant no.1 and 1(A) and on the next date i.e. 4.12.2008, it was noticed that the plaintiffs were not even served with a copy of the motion. 7. On 14.1.2009 Shri K.Ramesh, representative of defendant no.1(A) appeared and again sought time till 21.1.2009. Again on 21.1.2009 as well as 28.1.2009 and 29.1.2009 time was sought by the representative of Defendant No.1(A). 8. On 3.2.2009, the learned Advocate appearing for defendant no.1 (A) sought discharge on the ground that he was not receiving any instructions from the said defendant. Considering the same, the trial Court directed the learned Advocate to give notice to defendant No.1(A) recoding that he would seek discharge on the adjourned date and that defendant should remain present before the Court on 11.2.2009. On 4 2.3.2009 when the motion was taken up for hearing, the learned Advocate for defendant no.1(A) produced her letter dated 5.2.2009 and stated that despite the reminders, defendant-1(A) did not come forward to give instructions. The learned Advocate, therefore, sought discharge which was granted. The partner of Defendant No.1(A) appeared before the court in person and sought time but could not explain as to why no instructions were given to the Advocate to proceed with the Notice of Motion, despite repeated adjournments. He was also unable to explain why no alternative arrangements were made until 2 nd March, 2009 despite being put to notice by his advocate on 5 th February, 2009. It was under these circumstances, the Notice of Motion was dismissed for non prosecution, by the impugned order dated 5.2.2009. 9. The relief as granted by the learned trial Judge on 7.10.2002 shows that it was not an ex-parte decree under Order IX Rule 6 of the Civil Procedure Code and in fact the Court had exercised its power under Order VIII Rule 5 of the Civil procedure Code. No appeal was filed against the said decree. Even while passing the decree, the learned trial Judge noted that despite requests for adjournment made by Mr. Raja, learned Advocate appearing for the defendants, he could not receive any instructions, and therefore the suit came to be decreed on the basis of the evidence placed on record by the plaintiffs. Thus, the appellant was consistent in not prosecuting its cause. 5 10. Mr. Shah, the learned counsel for the plaintiff has invited our attention to the judgment of this Court in the case of Laxman Zingraji Adhau Vs. Sushila Zinguji Thakre &others (1996 (1) Mh.L.J. 67) in support of his contentions that the Notice of Motion was not maintainable and the only remedy available to the present appellant is to file an appeal against the decree. 11. We have considered the arguments advanced by the learned counsel for the parties as well as the reasons set out in the impugned order and we are satisfied that no interference is called for in the same, in this appeal. 12. Hence this appeal fails and the same is hereby dismissed. We clarify that an appeal against the decree dated 7.10.2003 if filed as per law, that shall be decided without being influenced by this order. (SMT. V. K. TAHILRAMANI, J.) (B.H. MARLAPALLE, J.)