Shri Ajit Thakkar Vs Shri Bhaggal Kharbhan Kunbi

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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A.O.NO.420 OF 2005

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 Ajit Thakkar .. Appellant
 vs.

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 Bhaggal Kharbhan Kunbi .. Respondent.

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 Mr. N.V.Walavalkar with Rajan Kakkara for the
 Appellant.

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 Mr.M.r.Yadav for the Respondent.

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CORAM : A.S.OKA, J.

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DATED : 2nd May, 2005.

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P.C. :

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 1. Heard the Advocates appearing for the

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 parties.

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 2. The Appellant is the Original Defendant.

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 The Respondent is the Original Plaintiff. The
 Respondent had taken out the notice of motion for
 temporary injunction. Admittedly, reply was filed
 by the Appellant to the said Notice of Motion. The
 said Notice of Motion was kept for hearing on
 21.6.2004. It is the case of the Appellant that the
 Advocate appointed by the Appellant was attending to
 a matter in this Court and therefore he was not
 present. The learned trial Judge proceeded with the

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 hearing of the Notice of Motion in absence of the
 Appellant’s Advocate and the Notice of Motion was
 made absolute. Within one month from the date of
 the order, the Appellant had taken out the present
 Notice of Motion for setting aside the order passed
 on the Notice of Motion taken out by the Respondent
 and for restoration of the Notice of Motion. By the
 impugned order, the subsequent Notice of Motion
 taken out by the Appellant has been dismissed by
 holding that the earlier Notice of Motion has been
 decided on merits. It is not in dispute that in the
 present Notice of Motion taken out by the Appellant,
 there was an ad-interim relief granted by virtue of
 which order passed in Notice of Motion No.2454 of
 2003 taken out by the Respondent was stayed.

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 3. Shri Walavalkar, appearing for the Appellant
 submitted that when the Notice of Motion taken out

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 by the Respondent was admittedly heard in absence of
 the Advocate for the Appellant, the learned Judge
 ought to have allowed Notice of Motion and ought to
 have fixed the original Notice of Motion for
 hearing. He submitted that construction of building
 has been completed.

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 4. The learned Advocate for the Respondent

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 submitted that the Appellant has not done his duty
 by paying the requisite amount to the Respondent.
 He submitted that the Judge while deciding the
 Notice of Motion for injunction has considered the
 reply and other documents filed by the Appellant.
 He, therefore, submitted that no interference is
 called for.

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 5. I have considered the rival submissions. It
 is not in dispute that on 21.6.2004 when Notice of
 Motion 2454 of 2003 was heard, the Advocate for the
 Appellant was absent. In absence of the Advocate
 for Appellant, the learned trial Judge disposed of
 the Notice of Motion. The present Notice of Motion
 was taken out by the Appellant is for setting aside
 the order dated 21st June, 2004. In affidavit in
 support filed by the Appellant it was pointed out
 that the learned Advocate appointed by the Appellant
 was in this Court when the Notice of Motion was
 taken up for hearing. In my view, when the Notice
 of Motion was taken out by the Respondents was heard
 in absence of the advocate of the Appellant, the
 learned trial Judge ought to have given opportunity
 to the Appellant of being heard in the earlier
 Notice of Motion. This was not the case where the
 Appellant was negligent. The Appellant had

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 appointed an advocate and had filed affidavit in
 reply to the Notice of Motion. Only because his
 Advocate was absent, the Appellant cannot be made to
 suffer. The learned trial Judge ought to have
 adopted a liberal approach in the matter. The
 prejudice which may be caused to the Respondent
 could have been compensated by ordering payment of
 costs.

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 6. In my view the Appeal must succeed. It is
 true that by restoration of earlier Notice of Motion
 filed by the Respondent prejudice will be caused to
 the Respondent. The Respondent deserves to be
 compensated by ordering payment of costs. The
 amount of costs is quantified at Rs.7500/-.

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 7. Accordingly, I pass the following order:

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 a) Impugned Judgment and Order dated

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 11.3.2005 is quashed and set aside and the
 Notice of Motion No,.2838 of 2004 is made
 absolute in terms of prayer clause (a)
 subject to the condition that the Appellant
 will pay the costs of Rs.7500/- (Rupees
 Seven Thousand Five Hundred Only) to the
 Respondent within a period of four weeks

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 from today.

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 b) If the amount of costs is paid
 within a period of four weeks, parties will
 appear before the learned trial Judge on
 13.6.2005. The learned trial Judge will
 take up the Notice of Motion No.2454 of 2003
 for hearing and will decide the same as
 expeditiously as possible.

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 c) All contentions of the parties in
 the aforesaid Notice of Motion are expressly
 kept open.

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 d) Appeal is partly allowed in above

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 terms with no orders as to cost.

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 . Parties and the concerned court to act on

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 the authenticated copy of this order.

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 (A.S.Oka, J.)

Shri Ajit Thakkar v. Shri Bhaggal Kharbhan Kunbi

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Shri Ajit Thakkar v. Shri Bhaggal Kharbhan Kunbi

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