(1) lpa18-16-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 18 OF 2011 IN WRIT PETITION NO. 7053 OF 2008 Sau. Ratnabai @ Ratnaprabha Jaideepsingh Sisodiya and another APPELLANTS VERSUS Laxman Rambhau Chaudhari & others RESPONDENTS WITH LETTERS PATENT APPEAL NO. 16 OF 2011 IN WRIT PETITION NO. 7053 OF 2008 Laxman Rambhau Chaudhari and others APPELLANTS VERSUS Sau. Ratnabai Jaideepsing Sisodiya and others. RESPONDENTS .... Mr. S.G. Karlekar, advocate for the appellants in Letters Patent Appeal No. 18/2011 and for the respondent Nos. 1 and 2 in Letters Patent Appeal No. 16/2011. Mr. Mukul Kulkarni, advocate holding for Mr. A.H. Koralkar, advocate for the appellants in Letters Patent Appeal No. 16/2011. .... CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. DATE : 4th MAY, 2011 ORAL ORDER : 1. Admit. By consent the appeals are heard finally forthwith. (2) lpa18-16-11 2. The Letters Patent Appeal No. 16/2011 has been filed by the defendants in the Suit being Special Civil Suit No. 49/2001, filed in the Court of Civil Judge, Senior Division, Dhule. The Letters Patent Appeal No. 18/2011 has been filed by the plaintiffs in the said Suit. Both the Letters Patent Appeals are directed against the order of the learned Single Judge of this Court in Writ Petition No. 7053/2008. 3. The defendants had failed to file their written statement due to which the suit for specific performance filed by the plaintiffs was decreed on 30th August, 2003, exparte. The defendants were directed to execute the sale deed in respect of the suit property in favour of the plaintiffs immediately after the appeal period was over at the costs of the plaintiffs. The defendants were further restrained from alienating, mortgaging, selling and transferring the suit property to a third person. It appears that the defendants had filed Misc. Application no. 80 of 2003 for setting aside the ex-parte decree. The defendants contended that they had engaged an (3) lpa18-16-11 Advocate to appear for them but since he had not remained present, the matter proceeded without the written statement of the defendants. However, that application was rejected by the order dated 25th July, 2006. The defendants then filed Civil Appeal no. 71 of 2006 which was dismissed on 26th August, 2008 by the District Judge-3, Dhule. Hence, the present Appeals. 4. We have heard the learned counsel for the parties and in our opinion, this is a fit case where the learned Single Judge ought to have exercised his jurisdiction and set aside the ex-parte decree by imposing heavy costs on the defendants. 5. The learned counsel appearing for the plaintiffs contends that the Misc. Application filed by the defendants does not disclose sufficient cause for setting aside the ex-parte decree. He relies on the judgment of the Supreme Court in the case of 'Parimal Vs. Veena alias Bharati' 2011 AIR SCW 1233. According to him, the Misc. Application for setting aside the ex-parte decree is bereft of any sufficient or adequate cause for setting aside the decree. (4) lpa18-16-11 6. We have perused a copy of the Misc. Application no.80 of 2003, i.e. the application for setting aside the exparte decree. The defendants have contended that the matter went unattended due to no fault of theirs. They have indicated that they have engaged an Advocate to appear in the matter, however, he did not file the written statement within the stipulated time, nor did he participate in the further proceedings in the suit before the trial Court. They have also contended that one of the defendants was responsible for keeping a track of the matter before the Court, but he failed to do so because he was ill on sustaining a snake bite. It was not possible for the defendants to ascertain the progress of the matter before the Court. It is in these circumstances, that the matter proceeded unattended by the defendants and an ex-parte decree was passed against them. 7. We have perused the judgment of the Supreme Court in the case of Parimal Vs. Veena alias Bharati (supra). The Supreme Court has observed that a liberal attitude has to be adopted while setting (5) lpa18-16-11 aside the ex-parte decree, only when the statutory requirements under Order IX Rule 13 of the Code of Civil Procedure are met. The Apex Court has also observed that the test to be applied while determining an application under Order IX Rule 13 is whether the defendant honestly and sincerely intended to remain present when the suit was to be heard and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. The applicant in such a case must approach the Court with a reasonable defence. There cannot be a strait jacket formula of universal application while deciding an application under Order IX Rule 13 of the Code of Civil Procedure, observed the Apex Court. 8. Keeping these observations in mind, we have no hesitation in concluding that despite the best intentions of the defendants to be present in the Court for the matter, they were unable to do so. The intention to defend the suit is apparent from the fact that they had engaged an Advocate in the matter. Once an Advocate is engaged, a litigant expects that (6) lpa18-16-11 the Advocate would take all necessary steps to ensure that his client's interests in a particular case would be protected. The litigant is not expected to approach the Advocate every now and then to ascertain whether the Advocate has acted responsibly and in the best interests of his client. The Advocate in the present case was obviously negligent in attending the matter and filing the written statement. The defendants have indicated that one of them had undertaken the responsibility to attend the Court for the matter. He was injured because of a snake bite and, therefore, could not attend the Court when required. 9. Apart from this, we have found that the learned Single Judge has issued certain directions against the plaintiffs with respect to payment of Rs.5,00,000/- without the trial Court having directed so, while passing the decree. 10. In these circumstances, in our opinion, the learned Single Judge ought to have set aside the ex- parte decree as sufficient cause has been made out by the defendant for setting aside the decree. (7) lpa18-16-11 11. Accordingly, both the Letters Patent Appeals are allowed. The order passed by the learned Single Judge is set aside. The order passed by the District Judge-3, Dhule in Civil Appeal no. 71 of 2006 and by the Civil Judge Senior Division in Misc. Application no.80 of 2003 as well as the ex-parte decree passed in Special Civil Suit no. 49 of 2001 are set aside. The written statement of the defendants shall be filed on or before 10th June, 2011, failing which the earlier orders will revive. The written statement shall be accepted on payment of costs of Rs.5000/- (Rs.Five Thousand) to the plaintiffs within two (2) weeks from today. Since the suit has been filed in the year 2001, it is expedited. [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] NPJ/lpa18-16-11