Allowed

Mrs. Rekha Vasantha Shetty v. Chandrakant Raghunath Azagaonkar and Ors.

Bombay HC19 Jul 2012APP/369/2012

Case brief

AI extract

What is this about?

The High Court set aside the trial judge's order allowing a Chamber Summons and the underlying ex parte decree. It restored the matter for joint hearing with eight other pending suits involving common questions of fact to ensure consistent adjudication. The appellant was permitted to intervene in the trial.

What did the court decide?

Impugned order dated 2 April 2012 set aside; Chamber Summons restored to trial file; Ex parte decree dated 6 October 2009 quashed; Suits to be tried jointly; Appellant permitted to intervene.

Mrs. Rekha Vasantha Shetty Vs Chandrakant… — Civil Procedure and Limitation | Bombay HC (2012)

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APP369-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.369 OF 2012

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Mrs.Rekha Vasantha Shetty ...Appellant Versus Chandrakant Raghunath Azagaonkar & Ors. ...Respondents

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Mr.Atit N.Shukla i/by Mr.Rohan R.Sonawane and Mr.Nihar S.Ghag for appellant.

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Ms Sulbha Dhamle, for respondent No.1. Ms Nutan Moilye, for respondent No.2.

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CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR J. Thursday, July 19, 2012.

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P.C.:

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This appeal is directed against the order dated 2 April 2012, of the learned trial Judge of this Court allowing the Chamber Summons filed by the Judgment-Creditor in the execution application filed pursuant to the exparte decree dated 6 October 2009.

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The appellant is obstructionist who claims to be in possession of the suit flat since 1991, but the case of the Judgment-Creditor was that the Judgment-Creditor was dispossessed in the year 1993 along with the occupants of nine other flats in the building of Vyas Co-operative Housing Society at J.P. Road, Ambivali village, Andheri (W) Mumbai, in the year 1990. The obstructionist claims through defendant No.1 who has already filed Notice of Motion for setting aside the exparte decree. The said Notice of Motion was dismissed for default and another Motion is filed for restoration of the said Notice of Motion.

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APP369-12

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Apart from the fact the learned trial Judge has noted that the appellant was called upon to show her case from her own affidavit and with a photo-copy of two voter's cards of the obstructionist was produced before the learned trial Judge. It was however found that the photo-copy could not indicate whether the reverse of the voter's cards relates to the same voter card or not and that original voter's cards when called upon were not produced.

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Learned counsel for the appellant submits that the original voter's cards were lying with the appellant and that the appellant's counsel had only asked for a short adjournment for producing the original voter's cards which are now shown to us at the hearing of this appeal.

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We do not propose to go into the merits of the rival submissions made before us, as we are of the view that since common questions of fact are raised in nine other suits which were also filed at around the same time as the present suit, they need to be heard and decided together. The counsel for respondent No.1 / plaintiff seeks to place reliance on the allotment letter issued by the Collector Mumbai suburbs, in support of the case of the plaintiff the present case and reliance is placed on the same letter in nine other suits which are pending along with the present suit.

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In view of the above we are inclined to set aside the impugned order dated 2 April 2012, in order to see that the respondent No.1 and the appellant herein get the same opportunity which will be extended to the defendants in the following pending suits -

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Suit No. 2033 of 1993

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Suit No. 3476 of 1993

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APP369-12

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Suit No. 2026 of 1993 Suit No. 2027 of 1993 Suit No. 2028 of 1993 Suit No. 2029 of 1993 Suit No. 1439 of 1993 Suit No. 2163 of 1993 Suit No. 815 of 1993

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In the result, the appeal is allowed. The order dated 2 April 2012 of the learned single Judge in Chamber Summons No.1624 of 2010 is set aside. The Chamber Summons is restored to the file of the learned trial Judge. The same would otherwise be heard and decided in accordance with law after the Notice of Motion filed by defendant No.1 for restoration of the Motion for setting aside the exparte decree is heard. In order to ensure that the parties have an opportunity to decide the suit on merits, with the consent of the learned counsel for the parties, we set aside the exparte decree dated 6 October 2009 in Suit No.2803 of 1993 which shall now be tried along with the above numbered suits and shall be listed for hearing for trial before the learned single Judge. The learned single Judge is requested to try and decide the suit as expeditiously as possible and preferably within four months, The respondent no.2 herein / original defendant No.1 shall file Written statement within three weeks from today.

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As far as the obstructionist / appellant is concerned, since she is obstructionist and she claims her title through defendant No.1, the obstructionist may also be heard as intervener or may be permitted to intervene at the trial of the suit.

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APP369-12

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We make it clear that we may not be treated to have expressed any opinion on the merits or controversy between the parties and all contentions are left open.

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Appeal is disposed off accordingly.

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CHIEF JUSTICE

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N.M.JAMDAR, J.

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Mlns

Mrs. Rekha Vasantha Shetty v. Chandrakant Raghunath Azagaonkar and Ors.

Case brief

What is this about?

What did the court decide?

Mrs. Rekha Vasantha Shetty v. Chandrakant Raghunath Azagaonkar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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