A writ petition challenging the dismissal of an application to set aside an ex parte decree. The High Court found that the defendant was properly represented by counsel and was aware of the suit proceedings, dismissing the writ petition.
The writ petition was dismissed with no liberalities granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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908.wp.8561.13
ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8561 OF 2013
Pramila Devi W/o. Sanjay Gupta .. Petitioner
Vs.
Abdul Kader Abdul Karim and others .. Respondents
Mr. Omprakash Pandey, i/b M/s. Pandey & Co., for Petitioner. Ms.Nupur J.Mukharjee i/b N.N.Vaishnawa & Co., for Respondent Nos. 1 to 4.
CORAM : R.G.KETKAR, J . DATE : 26th September, 2013
P.C. :
. Heard Mr. Omprakash Pandey, learned Counsel for the
petitioner and Ms. Nupur Mukharjee, for the respondent Nos.1 to 4 at length.
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petitioner, hereinafter referred to as defendant No. 2(e) under Order 9 Rule 13 of the Code of Civil Procedure, 1908 ( for short 'C.P.C.') for setting aside exparte decree dated 29/06/2004 in RAE Suit No. 966 of 1991.
suit and defendant No. 2(e) may be given liberty to file the written statement and contest the suit on merits.
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learned Counsel appearing for the parties. I have also perused the material on record. In short, the submission of Mr.Pandey is that defendant 2(e) was not served with the summons of the suit as also the amended plaint. The learned trial Judge has meticulously considered the proceedings from paragraph 15 onwards. It was observed that originally the suit was instituted against defendant No.1 Mr.Shyam Narayan Gupta and defendant No.2 Mr.Deep Narayan Gupta being the heirs of original tenant Jittu. Defendant Nos. 1 & 2 are the real brothers.
908.wp.8561.13
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and defendant No.2 accepted the amended plaint on behalf of defendant Nos. 2(a) to 2(e). The learned trial Judge considered the submissions made on behalf of defendant 2(e) that there was over writing in the roznama dated 12/01/2004. The roznama was manipulated to show that defendant No.2 accepted the amended plaint on behalf of defendant Nos. 2(a) to 2(e). The learned trial Judge observed in paragraph 19 that on 12/01/2004, P.W.1, Ahmedali was cross examined by Advocate Vardhamane and he could not conclude the cross examination of P.W.1. He requested for adjournment on the ground that defendant No.2 had accepted the summons on behalf of defendant Nos. 2(a) to 2(e) that day and he will shortly file vakalatnama on their behalf on the next date.
908.wp.8561.13
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observed that defendant No.2 filed affidavit of examination-in-chief as D.W.1 and the Advocate of defendant No.2 had signed the said affidavit as Advocate for defendant Nos. 2(a) to 2e). Not only that, defendant 1(b) and defendant No.2 filed Appeal No. 147 of 2005 on behalf of defendant 2(e). The learned trial Judge observed that if at all Advocate Vardhamane was not authorised to represent defendant 2(e), she would have taken action against him. Mr.Pandey submits that even today, defendant 2(e) can take action against Advocate Vardhamane. What is relevant to note is that right from 2004 onwards, the Advocate Vardhamane represented defendant 2(e) and till date, she has not taken any action against the said Advocate. The learned trial Judge therefore, held that defendant 2(e) was aware of the hearing of the suit and she had instructed Advocate Vardhamane to represent her in that suit. The findings of the learned trial Judge are confirmed by the Appellate Court.
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908.wp.8561.13
with the orders passed by the Courts below. Mr.Pandey was not in a position to show that findings recorded by the Courts below are perverse being based upon no evidence or that on the basis of evidence on record, no reasonable or prudent man would have come to the conclusion arrived at by the Courts below. No case is made out for invocation of powers under Article 227 of the Constitution of India. In the result, the Writ Petition fails and the same is dismissed.
2 issues framed by the court
Whether the High Court should exercise its discretionary jurisdiction under Article 227 to set aside a decree passed ex parte.
Whether the trial court's findings regarding the representation of the defendant were perverse or based on no evidence.
2 provisions across 2 enactments
Pramila Devi
Abdul Kader Abdul Karim
Others
R.G. Ketkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
