Disposed

M/S. Gammon India Limited v. the Municipal Corporation of Greater Bombay and Ors.

Bombay HC21 Mar 2013WP/990/2013

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application for condonation of delay to restore a suit dismissed for non-prosecution. The court found the delay attributable to the advocate and quashed the impugned order, allowing restoration and ordering petitioner to pay costs.

What did the court decide?

Misc. Application No.16 of 2009 allowed; Application for restoration of L.C. Suit No.7607 of 1975 allowed

M/S. Gammon India Limited Vs the Municipal Corporation of Greater Bombay and Ors. — Bombay HC (2013) — LawSathi Research

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WP-990.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.990 OF 2013

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M/s. Gammon India Limited, ] Gammon house, V.S. Marg, Prabhadevi ]... Petitioner Mumbai 400 025 ] (Original Plaintiff.)

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versus

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1]	The Municipal Corporation of Greater Bombay, Mahapalika Marg, Mumbai – 400 001	] ] ] ]
2A]	Smt. Sulochana Ramrao Naik residing at 75, Old Prabhadevi Road Bombay 400 025	] ] ] ]
2B]	Smt. Suman Liladhar Chogle residing at 12, Gopchar Building, 105, S.V.S. Road, Opp.Kodak Co. Bombay – 400 025.	] ] ] ]
		]
2C]	Smt.Susmita Ratnakar Desai residing at Panhalal Ghish Marg Somwar Bazar, Malad (West) Bombay 400 064	] ] ] ] ]
2D]	Shri Arun Ramrao Naik residing at Bldg. No.”A”, 2^ndfloor Shivkripa Co-op. Hsg. Socy. Ltd., Opp. R.T.O. Office, Lokhandwala Road, Char Bungalow, Andheri(W) Bombay – 400 058	] ] ] ] ] ] ]
3]	Anant Ramrao Naik residing on the 1^stfloor of the structure behind Gammon House, V S Marg, Prabhadevi, Mumbai – 400 025.	] ] ]... Respondents. ] (Original Defendants) ]

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Mr. J G Shukla i/by M/s. G H Shukla & Co. for the Petitioner. Ms. M R Bhoir for the Respondent No.1. Mr. Sujit N More with Ms. Ujwala Sawant for the Respondent Nos.2B to 2D & 3.

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CORAM : R. M. SAVANT, J. DATE : 21^st March 2013

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JUDGMENT

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1 Rule, with the consent of the learned counsel appearing for the parties made returnable forthwith and heard.

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2 The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 24/4/2012 passed by the learned Judge, City Civil Court, Greater Bombay by which order the Misc. Application No.16 of 2009 filed by the Petitioner for condonation of delay in filing the application for restoration of the suit came to be rejected.

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3 The facts necessary to be cited for adjudication of the above Petition can in brief be stated as under :-

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The Petitioner herein is the original Plaintiff in L.C.Suit No.7607 of 1975. The Respondents herein are the original Defendants. For the sake of convenience the parties would be referred to as per their status in the Trial Court. The said suit has been filed by the Plaintiff for possession of the suit property which is more particularly mentioned in prayer clause (a) of the

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plaint. In the said suit, it is the case of the Plaintiff that the suit property was requisitioned by the Government and allotted to the Defendant Nos. 2 and 3, and therefore the suit was filed for possession of the suit property. The suit in question was stayed on the application made by the Defendant Nos.2 and 3 on the ground that they have made an application to the Town Planning Authority for amendment of the Town Planning Scheme and pending consideration of the said application, the suit was required to be stayed.

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4 The Trial Court on the application of the Defendant Nos.2 and 3, stayed the suit in question by its order dated 11/3/1986. Though the suit was stayed it appears that the suit had come up for hearing before the Trial Court on 10/3/1998 and was adjourned to 1/4/1998 and thereafter to 23/4/1998 on which day on account of non-appearance of the parties except the BMC it was dismissed for non-prosecution. It is the case of the Plaintiff that it became aware of the dismissal of the suit only on or about 1/1/2009, and thereafter on 31/1/2009 two separate applications were filed one for restoration of the suit and another for condonation of delay which has occurred in filing the restoration application. The said Misc. Application No.16 of 2009 which was filed for condonation of delay came to be rejected by the Trial Court as the Trial Court was of the view that the reasons mentioned in the said application for condonation of delay do not constitute a sufficient cause for condonation of the said delay.

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5 In view of the application for condonation of delay being dismissed, the restoration application also came to be consequently dismissed without the Trial Court going into the merits of the said application. As indicated above, it is the said order dated 24/4/2012 rejecting the said Misc. Application No.16 of 2009, that is the subject matter of the above Petition.

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6 Heard the learned counsel for the parties. The learned counsel appearing for the Petitioner i.e. the original Plaintiff would reiterate the case of the Plaintiff in the application for seeking condonation of delay. The learned counsel would contend that the Plaintiff had engaged advocate Shri P V Sathe in three suits which were identical in nature. The said advocate Shri Sathe it seems was not attending the Court on account of the fact that he was preoccupied with the illness of his son and on account of his old age. The learned counsel for the Petitioner would contend that thereafter the Petitioner engaged the services of another advocate Ms. M H Doshi, and asked the said advocate to make inquiries about the suit and get the certified copies. However, the said advocate also informed the Petitioner that the certified copies of the orders passed could not be made available as the papers were not traceable. The Petitioner thereafter made inquiries and upon such inquiries came to know that the suit has been dismissed for non-prosecution on 23/4/1998. The learned counsel would contend that it is on account of the aforesaid circumstances that

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there is a delay in filing the application after the suit has been dismissed for default on 23/4/1998. The learned counsel would contend that the said delay is not deliberate or on account of any negligence but has occurred in view of the aforesaid circumstances. The learned counsel would rely upon the order passed in Writ Petition No.3744 dated 10/9/2012 by which order this Court has allowed the said Writ Petition and thereby allowed the applications for condonation of delay and restoration of the suit which applications were in respect of a companion suit which had been filed by the Plaintiff. The learned counsel would therefore contend that since the facts are identical, the instant application should also be allowed.

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7 Per contra, the learned counsel appearing for the Respondents would oppose the application and would contend that there is a gross delay of about 9 years in filing the application for restoration. The learned counsel would contend that the reasons mentioned in the application do not constitute a sufficient cause so as to entitle the Petitioner to the condonation of the said huge delay of about 9 years. The learned counsel would contend that in the absence of the Petitioner making any inquiries with its advocates, the reasons mentioned by it are not worthy of acceptance.

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8 Having heard the learned counsel for the parties, I have bestowed my anxious consideration to the rival contentions. At the outset it is required to

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be noted that in the affidavit in support of the application filed for restoration, the Plaintiff has very succinctly set out its case. It is averred by the Plaintiff that advocate Shri Sathe was engaged by it to appear in the aforesaid L C Suit No. 7607 of 1975 . It is further averred that advocate Shri Sathe, on account of his old age, was not attending the Court regularly, and therefore, the same resulted in the dismissal of the suit for default. It has further been averred that since the Plaintiff was labouring under an impression that the suit having been stayed by virtue of the order passed in the year 1986, their advocate Shri Sathe would attend the said suit as and when the same would come on board. It is the case of the Plaintiff that advocate Shri Sathe expressed his disability to appear in the matter on the ground of his advanced age. In view thereof, the Plaintiff engaged another advocate Ms. M H Doshi. It has further been averred that the Plaintiff was prosecuted before the learned Metropolitan Magistrate, 41^st Court, Shinde Wadi which prosecution was numbered as Case No.410033/SW/07 under Section 354, 475-A of the M.M.C. Act. The Plaintiff was labouring under an impression that since the suit has been stayed, the BMC is not entitled to take any action in respect of the suit property. However, the Plaintiff informed the Court about the pendency of the suit. The learned Metropolitan Magistrate asked the Plaintiff to produce the relevant papers upon which the Plaintiff approached advocate Ms.Doshi to obtain certified copies of the papers and proceedings of the suit. It is the case of the Plaintiff that advocate Ms.Doshi informed the Petitioner that the proceedings of the suit

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are not traceable and therefore she is unable to obtain the certified copies of the same. The Plaintiff was therefore constrained to apply for certified copies on its own. After due search, the certified copies of the papers and proceedings of the suit became available on 1/1/2009 upon which it came to know that the suit has been dismissed for default on 23/4/1998. The said case of the Plaintiff discloses that the Plaintiff was labouring under an impression that the suit was stayed and that advocate Shri Sathe, who was engaged by the Petitioner, would inform the Petitioner as and when the suit came on board. But unfortunately the Plaintiff's suit appeared on board on 23/4/1998 on which day the suit came to be dismissed for non-prosecution. The reasons mentioned by the Plaintiff in the application for condonation of delay therefore can be said to be the plausible reasons for the delay which has occurred. The delay if any therefore can be attributed to the advocate for the Plaintiff in not informing them about the status of the suit. Therefore no negligence or indolence can be attributed to the Plaintiff. It is well settled that a party should not suffer for the acts of its advocate. The Plaintiff would therefore have to be given an opportunity to prosecute its suit on merits.

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9 In my view, therefore, the reasons mentioned by the Plaintiff in the application being Misc. Application No.16 of 2009 constitute sufficient cause. The Trial Court has erred in not accepting the reasons and thereby rejecting the application filed for condonation of delay. What is required to be noted that in

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identical facts a learned Single Judge of this Court in Writ Petition No.3744 of 2011 by order dated 10/9/2012 has accepted the identical reasons cited on behalf of the Plaintiff in respect of restoration of a companion suit. In that view of the matter, the impugned order dated 24/4/2012 is quashed and set aside. Resultantly the Misc. Application No.16 of 2009 is allowed as also the Application for restoration of the suit. The suit in question being L.C. Suit No.7607 of 1975 is restored to file. Rule is accordingly made absolute in the aforesaid terms, with parties to bear their respective costs. However, in the facts and circumstances of the present case, the Petitioner to pay costs of Rs.10,000/- to the Respondent Nos.2A to 2D and 3 within a period of four weeks from date.

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[R.M.SAVANT, J]

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M/S. Gammon India Limited v. the Municipal Corporation of Greater Bombay and Ors.

Case brief

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M/S. Gammon India Limited v. the Municipal Corporation of Greater Bombay and Ors.

Case brief

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