1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5663 OF 2008 Loveline Madanmohan Kapoor. ..Petitioner. V/s. Roopmahal CHS Ltd. & Ors. ..Respondents. Mr.S.M.Khaire for petitioner. Mr.Denzil D’Mello for Respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 30, 2008. DATE : AUGUST 30, 2008. DATE : AUGUST 30, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The first grievance of the Petitioner before this Court is that the specific case made out by the Petitioner in paragraph-8 of the affidavit in support of the Chamber Summons was that neither the Petitioner nor the Plaintiff was aware about the dismissal of the Suit in terms of the Order dated 31st March, 1999. Insofar as the assertion that the Petitioner was not aware, the Petitioner was competent to depose that fact on the basis of his personal knowledge. However, the fact that the Plaintiff herself was not aware about the dismissal of the Suit in terms of the Order dated 31st March, 2 1999 during her life time when she died on 2nd June, 2000 cannot be said to be within the personal knowledge of the Petitioner. The Petitioner is expected to establish that fact on the basis of contemporaneous record or circumstances, emerging from the record to support that position. That is not the specific case made out in the affidavit as filed. The Court below nevertheless has tested the argument of the Petitioner and has negatived the same in paragraph-8 of the impugned Judgment. The Court below has found as follows: "Though it has been contended by the Ld. Advocate for Applicant that prior to death of Ms.Daman Chavla, he was ill but no reasonable ground has been shown to show that prior to her death she was not in a position to contact her advocate or she was not in position to make application for setting aside dismissal." 3. The finding so recorded by the trial Court cannot be said to be improper or devoid of merits. That is a possible view on the question of fact asserted by the Petitioner. If there is no material forthcoming to establish the position that the Plaintiff herself was not aware about the dismissal of the suit on 31st March, 1999 during her life time till 2nd June, 2000, the fact that the Petitioner was 3 unaware of that position does not take the matter any further. The Petitioner would step into the shoes of the Plaintiff who has allowed the suit to go by default in terms of the Order dated 31st March, 1999. The Petitioner for the first time moved the trial Court on 16th August, 2004. Whether the Petitioner in his own right is entitled to ask for relief in the application is a different matter. In the first place, the Plaintiff who has allowed the suit to go by default will have to explain the circumstances for remaining absent on 31st March, 1999 and the fact emanating from contemporaneous record to show that the Plaintiff herself was unaware of that position during her life time. No such material has been produced by the Petitioner. If it is so, the ultimate conclusion reached by the trial Court cannot be faulted. 4. The next argument of the Petitioner is with reference to the averments made in paragraph-15 of the rejoinder affidavit. It is stated in that affidavit that on 8th December, 1998, the trial Court had directed the Office to send a letter indicating the next adjourned date of the hearing of the matter and about adjournment on 31st March, 1999. However, no intimation letter was sent to the deceased 4 Plaintiff. As a result of which the Suit was dismissed for default on 31st March, 1999. This case has been made out for the first time in the rejoinder affidavit. Assuming that the Petitioner can be heard on this aspect, he will have to establish the ground on the basis of roznama for the relevant period and other documents, which would show that in fact the intimation was not sent by the Office to the Plaintiff or that intimation so sent by the Office was never received by the Plaintiff before the 31st March, 1999 or in time thereafter during her life time till 2nd June, 2000. It is only then the Petitioner would succeed in persuading the Court that this is one of the circumstance to be reckoned by the trial Court to accept his stand that the Plaintiff herself was unaware of the dismissal of the suit on 31st March, 1999. Significantly, this aspect of the matter has not been argued at all before the trial Court. I am inclined to take this view because such argument does not find place in paragraph-5 of the impugned Judgment. 5. Counsel for the Petitioner however, submits that he had specifically argued this point before the trial Court but unfortunately, the same is not adverted to in the impugned Judgment. He further 5 submits that the impugned Judgment was not dictated in open court but in Chamber, for which reason, it was not possible for him to bring to the notice of the trial Court and insist for inviting finding on that fact or circumstances, which according to him was relevant to decide the controversy in issue. 6. The correctness of the above position can be questioned by the Petitioner by way of appropriate application before the same Court. 7. In the circumstances, the Petitioner is permitted to take recourse to remedy of Review and/or such other application, as may be advised before the same Court, which will have to be decided on its own merits in accordance with the law. All questions in that behalf are left open. 8. According to the Counsel for the Respondent, above exercise before the lower Court is unnecessary as the Suit itself has become infructuous in view of the subsequent events. In my opinion, that aspect will have to be considered at the appropriate stage and is not relevant to answer the point in issue. 9. Petition disposed of on the above terms. 6 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)