Dismissed

Jude D'Souza of Bombay v. Mrs. Loretta Rodrigues and Anr.

Bombay HC2 Sept 2013CRA/898/2011

Case brief

AI extract

What is this about?

The High Court dismissed the civil revision application challenging orders rejecting the petitioner's plea to set aside an ex-parte decree. The court upheld the lower courts' view that the petitioner failed to show sufficient cause for the delay. Lack of bona fides was imputed due to the petitioner acquiring knowledge of the decree but acting late.

What did the court decide?

The Civil Revision Application is dismissed. The impugned orders stand confirmed.

Jude D'Souza of Bombay Vs Mrs. Loretta Rodrigues and Anr. — Property and Title | Bombay HC (2013)

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4.vts.898.11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 898 OF 2011

Jude D'Souza

.. Petitioner

Vs.

Mrs.Loretta Rodrigues, Since deceased 1a. Shri Richard Sigmund Rodrigues another .. Respondents

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Mr.R.S.Tripathi, for Petitioner. Ms.Neela A.Dholakia, for Respondent No.1.

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CORAM : R.G.KETKAR, J . DATE : 02^nd September, 2013

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P.C. :

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. Heard Mr.R.S.Tripathi, learned Counsel for the petitioner

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and Ms.Neela A.Dholakia, learned Counsel for respondent No.1 at length.

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By this application under section 115 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), the original defendant No.1 has challenged the judgment and order dated 21/01/2008 passed by the learned Judge, Court Room No.9, Small Causes Court, Mumbai in Misc. Notice No. 64 of 2007 in R.A.D Suit No. 3356 of 1987, as also, the judgment and order dated 04/08/2011 passed by the Appellate Bench of Small Causes Court, in Appeal No. 226 of 2008. By these

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orders, the Courts below rejected the application made by the petitioner under Order 9 Rule 13 of C.P.C for setting aside exparte decree dated 17/07/2004.

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Respondent No.1 instituted R.A.D Suit No. 3356 of 1987 for declaration of tenancy. Though petitioner was duly served, he failed to file the written statement. The Court directed the suit to proceed further exparte. The suit was ultimately decreed on 17/07/2004.

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The petitioner took out proceedings under Order 9 Rule 13 of C.P.C. sometime in February 2007. By impugned orders, the Courts below rejected these proceedings on the ground that no sufficient case is made out by the petitioner for setting aside exparte decree.

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Mr.Tripathi invited my attention to the proceedings initiated under Order 9 Rule 13 of C.P.C. and in particular, the reasons given in paragraph Nos. 7 & 8 of the application. He submitted that while considering the application under Order 9 Rule 13 of C.P.C, for setting aside exparte decree, the Court also has to consider the judgment under challenge as also the extent of the property involved and the stake of the parties. In support of this, he relied upon the decision of the Apex Court in case of M.K.Prasad Vs. P.Arumugam, reported in (2001) 6 Supreme Court Cases, 176. He submitted that the petitioner has also instituted suit in this Court against first respondent

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4.vts.898.11

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herein, on the ground that the first respondent is a trespasser. The said suit is pending. Having regard to the extent of the property, the delay caused in filing the proceedings under Order 9 Rule 13 of C.P.C, deserves to be condoned subject to imposing costs on the petitioner. On the other hand, Ms.Dholakia supported the impugned orders. She submitted that the petitioner has only made allegations against his Advocate and no sufficient cause is made out.

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I have considered the rival submissions made by the learned Counsel appearing for the parties and also perused the material on record. It is not in dispute that the petitioner though served did not file the written statement. The learned Judge ordered 'suit to proceed exparte against the petitioner'. The suit was eventually decreed exparte on 17/07/2004. The Courts below after considering the material on record have concurrently found that the petitioner acquired knowledge of passing of exparte decree on 13/09/2006. Despite that, the petitioner took out the proceedings under Order 9 Rule 13 of C.P.C, only in February 2007. Save and except, making allegations against his Advocate, the petitioner has not explained as to what prevented him from not filing the proceedings under Order 9 Rule 13 of C.P.C. immediately after acquiring knowledge on 13/09/2006.

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In case of M.K.Prasad (supra), the Apex Court observed that “The expression 'sufficient cause' must receive a liberal

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4.vts.898.11

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construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay.”

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In the present case, the Courts below have recorded the concurrent findings that the petitioner acquired knowledge of passing of exparte decree on 13/09/2006. Perusal of the application shows that the petitioner has not brought any circumstances on record that prevented him from filing application immediately after acquiring knowledge on 13/09/2006. In other words, lack of bonafide is imputable to the present petitioner.

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In such circumstances, no fault can be found with the impugned orders. In the result, the application fails and the same is dismissed.

Jude D'Souza of Bombay v. Mrs. Loretta Rodrigues and Anr.

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Jude D'Souza of Bombay v. Mrs. Loretta Rodrigues and Anr.

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