IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL REVISION APPLICATION NO.287 OF 2008 REVISION APPLICATION NO.287 OF 2008 REVISION APPLICATION NO.287 OF 2008 Jitgir Trading Co. Pvt. Ltd. ... Applicants & Anr. Vs. Ewrat Investment Limited ... Respondent Mr. Naidu with N.P. Dalvi i/by C.R. Naidu & Co. for applicants. Mr. Aspi Chinoy, Sr. Counsel with Vaibhav Mehta i/by D.C. Mehta & Associates for respondent. CORAM CORAM CORAM : S.J. VAZIFDAR, J : S.J. VAZIFDAR, J : S.J. VAZIFDAR, J. DATE DATE DATE : 2ND JULY, 2008 : 2ND JULY, 2008 : 2ND JULY, 2008 P.C. P.C. P.C. :- :- :- 1. Admit. At the request of parties heard finally. 2. This is a Revision Application against the order of the Appellate Court of the Small Causes Court confirming the decision of the learned trial Court dismissing the petitioners application for setting aside an ex-parte decree of eviction. 3. Normally in the revisional jurisdiction, the Court hesitates to interfere with the concurrent findings of fact. However, in the facts and circumstance of this case, I am inclined to set aside the order and in doing so, I proceed 2 on the basis of the admitted facts. 4. The suit was filed in the year 1994. The petitioners engaged an Advocate and filed their Written Statement. Thereafter the suit appeared on several occasions before the trial Court and was adjourned for various reasons including the absence of the respondents and its advocates. It is pertinent to note that the order of the learned Single Judge also records that the suit was adjourned from time to time mostly as the Advocates of the parties were absent. It was also adjourned on several occasions due to the matter not reaching hearing. 5. On 5th February, 2008, the evidence of the respondent was recorded. The petitioners and their advocates were absent. The evidence was not concluded on that date. Even the respondent’s evidence was not concluded on that day. 6. Thereafter four months later the respondent’s evidence was concluded only on 5th June, 2002 and suit was decreed by an exparte judgment dated 31st July, 2002. 3 7. It is important to note that even between 5th February 2002 and 5th June, 2002, the matter was adjourned from time to time including on the ground that the Court was not sitting and that the matter had not reached. 8. It appears that there was an Office Order No.76/2000 of the Small Causes Court transferring the matter from one Court to another Court and that the matter appeared on 13th March, 2001. What is important to note as far as the respondent is concerned is that the Roznama shows that on 23rd January, 2002, the petitioners were present in the Court. Based on this both the Courts have held that the petitioners contention that they were unaware of the transfer of the matter from one Court to another cannot be believed. This is the most important circumstance on which the impugned orders have been based. Both the Courts have observed that despite their presence on 23rd January, 2002, the petitioners failed to remain present on subsequent occasions. 9. However, from the record, it does not appear that the petitioners have been negligent in attending to the matter or that they deliberately 4 remained absent on the date when evidence was recorded. They engaged an Advocate. There is no allegation that they did not pay his fees. Both the parties had remained absent in the past on certain occasions. Strictly speaking on such occasions the suit itself could have been dismissed. 10. Mr. Naidu submitted that the Roznama wrongly records the presence of the petitioners’ officers on 23/1/2002. However as there has been no application to have the Roznama corrected, I cannot accept this submission. The petitioners have filed a complaint against their Advocate before the Consumer Forum, which is pending. 11. In these circumstances, I do not think it proper to preclude the petitioners from defending themselves. 12. The impugned order is set aside and the matter is remanded to the trial Court for disposal of the suit. The trial shall continue from the stage of cross-examination of the first witness. The respondent shall pay the costs of this C.R.A. fixed at Rs.15,000/-, within twelve weeks from 5 today. The operation of this order is stayed till 31st August, 2008.