Quashed

Smt Prabhawati Daniel Rathod and Anr. v. Jhon Maruti Salve

Bombay HC21 Mar 2016WP/1614/2016

Case brief

AI extract

What is this about?

This single judge order under Article 227 set aside the Small Causes Court's rejection of a delay condonation application. The High Court held that the trial judge should have disallowed the decree only after imputing costs to the petitioners, thereby conding the delay subject to a fine.

What did the court decide?

Impugned order set aside; condonation of delay allowed subject to payment of Rs.10,000 as costs.

Smt Prabhawati Daniel Rathod and Anr. Vs Jhon Maruti… — Execution and Attachment | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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Writ Petition NO. 1614 OF 2016

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SMT PRABHAWATI DANIEL RATHOD AND ANR.

...Petitioners

Versus

JHON MARUTI SALVE

...Respondent

Mr. Sanjay Salvi, Advocate for the Petitioners. Mr. Shankar S. Sable, Advocate for the Respondent.

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CORAM : R. G. KETKAR, J.

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DATE : 21^st MARCH, 2016

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P.C.

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Heard Mr. Sanjay Salvi, learned Counsel for the

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petitioners, and Mr. Shankar S. Sable, learned Counsel for the respondent, at length.

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Rule. Mr.Shankar Sable waives service for the respondent. At the request and by consent of the parties, Rule is made returnable forthwith and the Petition is taken up for final hearing.

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By this Petition under Article 227 of the Constitution of India, the petitioners have challenged the judgment and order

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dated 26.11.2015 passed by learned Judge of Small Causes Court, in Misc. Application No.38/2015. By that order, the learned trial Judge rejected the application made by the petitioners for condoning the delay of about 10 months in filing application under Order 9 Rule 13 of Code of Civil Procedure, 1908 (for short, 'CPC') for setting aside exparte decree dated 24.4.2014 passed by learned trial Judge in Suit No.498/2012.

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Mr. Salvi submitted that petitioner No.1 was not keeping well due to her hip operation and consequently could not move about for long period and was solely dependent on her daughter. Due to ill health of petitioner No.1, petitioner No.2 had to maintain and look after her mother along with her job and had to shuttle between her place of work and her house and was constantly under great pressure and trauma. He submitted that the delay in filing the application is bonafide and genuine. If delay is not condoned, great hardship and prejudice will be caused to the petitioners. He submitted that petitioner No.1 is a widow. He therefore submitted that the delay in filing application under Order 9 Rule 13 of CPC may be condoned.

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On the other hand Mr. Sable supported the impugned

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order. He submitted that the petitioners have not made out any sufficient cause for condoning the delay. He submitted that petitioner No.1 claims that because of hip operation she could not move out of her place. The suit summons was served on 15.12.2012 and the medical report shows that petitioner No.1 was admitted on 5.1.2013 and was given discharge on 18.1.2013. The suit was decreed exparte on 24.4.2014. There is no explanation for the period between18.1.2013 and 24.4.2014

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I have considered the rival submissions advanced by learned Counsel appearing for the parties. I have also perused the material on record. It appears that the respondent has instituted the suit for possession of the suit property. It further appears that the petitioners were served with the suit summons on 15.12.2012. The case of the petitioners is that on 5.1.2013 she was admitted in the hospital and was given discharge on 18.1.2013. The suit was decreed exparte on 24.4.2014.

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The learned trial Judge has rejected the application. The result of the impugned order is that the application under Order 9 Rule 13 of CPC stands rejected and the exparte decree passed against the petitioners becomes executable.

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In the case of State Of Nagaland vs Lipok Ao &

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Ors., (2005) 3 SCC 752, it is held by the Apex Court that what counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. The expression “sufficient cause” should be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay.

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In my opinion, if the delay is not condoned, the petitioners will suffer irreparable loss and also will not be in a position to contest the application under Order 9 Rule 13 of CPC. In my opinion, the learned trial Judge should have considered the application for condonation of delay liberally and ought to have allowed the application subject to imposing costs on the petitioners.

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In view thereof, the impugned order is set aside and the delay in filing application under Order 9 Rule 13 of CPC is condoned, subject to the petitioners paying Rs.10,000/- to the respondent or depositing in the trial Court within four weeks from today under due intimation in writing to the respondent.

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The learned trial Judge will decide the application under Order 9 Rule 13 of CPC uninfluenced by the observations made in this order. Rule is made absolute in aforesaid terms. Order accordingly.

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Deshmane (PS)

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Smt Prabhawati Daniel Rathod and Anr. v. Jhon Maruti Salve

Case brief

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Smt Prabhawati Daniel Rathod and Anr. v. Jhon Maruti Salve

Case brief

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