Allowed

Prabhakar Mahadeo Patil v. 1. Sudhir Dhaku Mistry

Bombay HC17 Aug 2012RPF/7/2012

Case brief

AI extract

What is this about?

The court allowed a review petition allowing restoration of a civil application dismissed for non-disclosure of facts regarding a prior dismissed stay application caused by the advocate's mistake. The court held that the petitioner had factually complied with service requirements via a local affidavit. The impugned recall order is set aside subject to payment of interim costs.

What did the court decide?

The order dated 17/04/2012 in Civil Application No.1358 of 2012 is recalled and that application is restored for hearing. Petitioner directed to pay costs to respondents.

Prabhakar Mahadeo Patil Vs 1. Sudhir Dhaku… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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REVIEW PETITION NO. 07 OF 2012

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FIRST APPEAL NO.360 OF 2008

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Prabhakar Mahadeo Patil

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... Petitioner--

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Versus

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Sudhir Dhaku Mistry and ors.

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... Respondents--

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Mr. P.G. Lad for the Petitioner-Mr. S.J. Kadam for Respondent nos.2 and 3-Mr. S.K. Patil for Respondent no.4. Mr. O.A. Vaishnav for Respondent no.5.

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CORAM: K. K. TATED, J. DATED : 17^th August, 2012

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P.C. :

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1 Heard the learned counsel for the parties.

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2 The learned counsel appearing on behalf of Respondent no.5 filed an affidavit-in-reply dated 16^th August, 2012. The same is taken on record.

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3 This Review Petition is preferred by Petitioner - original Defendant no.2 for reviewing the order dated 17^th April, 2012 passed by this court in Civil Application no.1358 of 2012 in First Appeal no.360 of 2008.

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4 A few facts of the matter are as under:

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In the present proceeding Respondent nos.1 to 3 filed L.C. Suit no.6147 of 2003 in the City Civil Court for Greater Bombay at Dindoshi (Borivali Division) for declaration that original Defendant no.1 – Municipal Corporation of Greater Bombay is legally bound to take action against original Defendant no.2 for his illegal construction and encroachment made around his shed i.e. suit property. The said suit was decreed by the City Civil Court for Greater Bombay at Dindoshi (Borivali Division) by an order dated 14^th January, 2008 directing the Petitioner – original Defendant no.2 to remove the said encroachment within stipulated time. The trial court also directed original Defendant no.1 - Municipal Corporation of Greater Bombay to take appropriate action against the Petitioner – original Defendant no.2 if he failed to remove the said encroachment. Being aggrieved by the said order the Petitioner preferred the present First Appeal no.360 of 2008. The said First Appeal is admitted by this court on 27^th February, 2008. At that time this court passed the following order:

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“1. Admit, Printing is dispensed with.

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2. Requisite number of copies of private paper-

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book alongwith Decree Form shall be filed by the

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appellant within a period of one year from today. If compliance is not made within stipulated time, the appeal shall stand dismissed for want of prosecution without further reference to the Court.”

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5 In the said First Appeal, the Petitioner has preferred Civil Application no.989 of 2008 for stay of the impugned judgment and decree dated 14^th January, 2008 passed by the trial court in L.C. Suit no.6147 of 2003. The said Civil Application no.989 of 2008 was on board, at that time this court (Coram: Abhay S. Oka, J.) passed an order dated 27^th February, 2008 directing the parties not to take coercive steps against the Petitioner on the basis of impugned Decree. This court also directed the Petitioner to serve the Respondents by private notice by Registered Post A.D. and/or by courier service and/or by hand delivery and shall file affidavit-of-service before the returnable date. If compliance is not made, the Application shall stand dismissed for non-prosecution without further reference to the Court. The said order reads thus:

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“1. Rule, returnable on 17^th April, 2008.

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2. In addition to service of notice through Court, the applicant shall serve a private notice by Registered Post A.D. and/or by courier service

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and/or by hand delivery and shall file affidavit-ofservice before the returnable date. If compliance is not made, the application shall stand dismissed for non-prosecution without further reference to the Court.

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3. In the meanwhile, no coercive steps shall be taken against the Applicant on the basis of the impugned Decree.”

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6 Thereafter, the Petitioner preferred Civil Application no.1358 of 2012 for continuation of stay granted by interim order dated 20^th February, 2008 and for stay to the Execution Application no.21 of 2011 filed by Respondent nos.1 to 3 before the City Civil Court for Greater Bombay at Dindoshi, (Borivali Division) in L.C. Suit no.1647 of 2003. In that Civil Application the Petitioner made following prayers:

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“a) That this Hon'ble Court may be pleased to pass an Order of continuation of the Stay granted by interim order dated 20/02/2008 till hearing and final disposal of the First Appeal.

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b) Pending the hearing and final disposal of this Application this Hon'ble Court may be pleased to stay the Execution Application No.21 of 2011 filed by the Respondent nos. 1 to 3 before the learned Judge, City Civil Court

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for Greater Bombay at Dindoshi (Borivali Division) in L.C. Suit No.6147 of 2003.

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c) Pending the hearing and final disposal of the First Appeal this Hon'ble Court may be pleased to restrain the Respondent nos. 1 to 3 and 4 their staff, officers, agents and servants, from implementing, enforcing, executing and acting in pursuance to the Impugned order/judgment dated 14-01-2008 passed by the Learned Judge City Civil Court For Greeater Bombay at Dindoshi (Borivali Division), in L.C. Suit No.6147 of 2003.

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d) Ad-interim relief in terms of prayer clause (b) & ( c) be granted.

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e) Cost of the Civil Application be provided.

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f) Any other relief in the nature and circumstances of the case may require be granted.”

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7 The said Civil Application no.1358 of 2012 was on board for hearing before this court on 17^th April, 2012. At that time, the learned counsel appearing on behalf of Respondent nos.2 and 3 pointed out that the Petitioner earlier preferred Civil Application no.989 of 2008 for stay of the impugned judgment and decree dated 14^th January, 2008 passed by the City Civil Court for Greater Bombay at Dindoshi (Borivali Division) in L.C. Suit no.6147 of 2003. For non-compliance of the conditional

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order passed by this court, Civil Application no.989 of 2008 came to be dismissed. He further pointed out that these facts are not disclosed by the Petitioner in that Civil Application no.1358 of 2012. Considering the averments made in Civil Application no.1358 of 2012 and the submissions made by the learned counsel appearing on behalf of Respondent nos.2 and 3 this court passed an order dated 17^th April, 2012 and dismissed Civil Application no.1358 of 2012 on the ground that the Petitioner suppressed the fact that initially they preferred Civil Application no.989 of 2008 for stay of the judgment and decree dated 14^th January, 2008 passed in L.C. Suit No.6147 of 2003. This court further observed that for more than three years there was no stay for the execution of the trial court’s judgment and decree.

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8 The present Review Petition is preferred by the Petitioner on the ground that though all the papers were handed over to the previous advocate, his previous advocate by mistake failed to disclose the fact that the Petitioner initially preferred Civil Application no.989 of 2008 for stay of the judgment and decree dated 14^th January, 2008. The Petitioner further states that in Civil Application no.989 of 2008, in view of the conditional order passed by this court (Coram: Abhay S.

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Oka, J.) on 27^th February, 2008, the Petitioner declared the affidavit-of-service on 17^th April, 2008. The Petitioner filed his affidavit-reply in Execution Application no.21 of 2011 in August, 2011. In which, in para 2, the Applicant specifically stated that in pursuance to the order passed by the Hon’ble High Court dated 27^th February, 2008 he filed affidavit-ofservice. In para 2 of the said affidavit-in-reply of the Petitioner before the City Civil Court, Dindoshi, at Goregaon reads thus:

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“2. I say and submit that I have already filed First Appeal No.360 of 2008 in the Hon'ble High Court Bombay against the order dated 14/1/2008 passed in the above suit and he the said Appeal has been admitted by the Hon'ble High Court by order dated 27/02/2008 hereto annexed and marked Exhibit “1” is the copy of said order. In pursuance to the order passed by the Hon'ble High Court the compliance has been made and now the said Appeal is pending. Hereto annexed and marked Exhibit “2” is the copy of the Affidavit of Service filed before the Hon'ble Court. I say that the order dated 27/02/2008 passed in Civil Application No.989 of 2008 in First Appeal no.360 of 2008. The rule is made returnable on 17/4/2008 and in meanwhile no coercive steps shall be taken against the Applicant on the basis of impugned decree.

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Hereto annexed and marked Exhibit “3” is the copy of the said order.”

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9 On the basis of these facts the learned counsel appearing

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on behalf of Petitioner states that though all the papers were handed over by the Petitioner to their previous advocate, the previous advocate failed to disclose all these facts at the time of drafting Civil Application no.1358 of 2012. Not only that at the time of argument on 17^th April, 2012 before this court, learned advocate failed to disclose these facts, therefore, this court passed an order rejecting Civil Application no.1358 of 2012. The learned counsel for the Petitioner states that these facts are learnt by the Petitioner when he contacted the present advocate with all the papers. At that time the present advocate explained to the Petitioner that the Civil Application no.1358 of 2012 came to be dismissed for non-disclosure of facts about the previous Civil Application no.989 of 2008. On the basis of these submissions, the learned counsel appearing on behalf of the Petitioner states that in the interest of justice, this Hon’ble Court be pleased to recall the order dated 17^th April, 2012 and restore Civil Application no.1358 of 2012 on file. He states that because of mistake on the part of previous advocate the Petitioner should not suffer. He further states

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that if the order dated 17^th April, 2012 is not recalled, irreparable loss and injury will be caused to the Petitioner. He further states that the Petitioner have good ground of success in the present First Appeal no.360 of 2008.

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10 On the other hand, the learned counsel appearing on behalf of the Respondents vehemently opposed the present Review Petition. They filed their affidavit-in-reply opposing the present Review Petition. The learned counsel for the Respondents states that the present Review Petition is not maintainable at all. He further states that the Petitioner has not made out any case for review the order dated 17^th April, 2012 passed by this court. He further states that though the Petitioner has made statement in their affidavit-in-reply filed before the City Civil Court, Dindoshi at Goregaon in Execution Application no.21 of 2011 in the month of August, 2011 that they already complied the order dated 27^th February, 2008, the Petitioner has not filed the affidavit-of-service in the Registry of this court till today. This shows that the Petitioner has made false statement on solemn affirmation. Therefore, the Petitioner is not entitled to any relief in the present Review Petition.

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11 I heard both the sides at length.

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12 I have perused the earlier Civil Application no.1358 of 2012 as well as the affidavit-in-reply filed by the Petitioner before the Executing Court. It is an admitted fact that this court (Coram: Abhay S. Oka, J.) passed conditional order on 27^th February, 2008 directing the Petitioner to file affidavit-ofservice within stipulated time and they failed to do so. Therefore, the earlier Civil Application no. 989 of 2008 came to be dismissed for non-prosecution without further reference to the Court.

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13 It is to be noted that the Petitioner placed on record on page no.39 a photocopy of the affidavit dated 17^th April, 2008 showing that as per the order dated 27^th February, 2008 they served all the Respondents. Though the said affidavit is duly affirmed before the Section Officer of this court on 17^th April, 2008, the same was not filed by the Petitioner's advocate in this court. For non-filing of affidavit-of-service, Civil Application no.989 of 2008 was dismissed in view of the conditional order dated 27^th February, 2008. The affirmation of affidavit-ofservice on 17^th April, 2008 is proved by the Petitioner by placing on record an affidavit filed by him before the City Civil

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Court, Dindoshi, at Goregaon in Execution Application no.21 of 2011 in August, 2011. Therefore, these facts cannot be denied that the Petitioner on his part complied with the order passed by this court on 27^th February, 2008 and handed over affidavitof-service duly affirmed on 17^th April, 2008 to their advocate for filing before this court. Because of mistake on the part of his advocate, Civil Application no.989 of 2008 shown dismissed. Other thing is that though the Petitioner handed over all the papers to his previous advocate, he failed to disclose the fact about Civil Application no.989 of 2008 at the time of filing Civil Application no.1358 of 2012 for continuation of stay granted by interim order dated 27^th February, 2008. Because of the mistake on the part of the advocate, the Petitioner should not suffer. Considering these facts, I am of the opinion that the Petitioner has made out case for allowing this Review Petition. Hence, Review Petition is allowed on payment of costs on following terms:

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a) Order passed by this court (Coram: K.K. Tated, J.) dated 17^th April, 2012 in Civil Application no.1358 of 2012 is recalled.

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b) Civil Application no.1358 of 2012 is restored on file for hearing and final disposal on its own merits.

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c) The Petitioner is directed to pay cost of Rs.1,500/- to Respondent nos.2 and 3, Rs.1,500/- to Respondent no.5 and Rs.1,500/- to Respondent no.4 within two weeks from today.

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d) The payment of cost is condition precedent.

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e) The Petitioner to place on record proof of payment of costs to these Respondents within two weeks from today.

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f) If cost is not paid to the Respondents within two weeks from today, this Review Petition shall stand dismissed without referring back to the court.

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15 Review Petition is disposed of accordingly.

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katkam

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Prabhakar Mahadeo Patil v. 1. Sudhir Dhaku Mistry

Case brief

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Prabhakar Mahadeo Patil v. 1. Sudhir Dhaku Mistry

Case brief

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