Dismissed

Mr. Tahir Mohd.Hussain v. Mr. Mohammed Zakir Hussein

Bombay HC9 Mar 2020FA/644/2013

Case brief

AI extract

What is this about?

First Appeal against an order dismissing an application to set aside an ex parte decree. The court upheld the lower court's finding that the defendant was not diligent and no sufficient cause was shown for his absence during three consecutive hearings, resulting in the dismissal of the appeal.

What did the court decide?

First Appeal No.644 of 2013 stands dismissed, upholding the order dated 8th January, 2013.

Mr. Tahir Mohd.Hussain Vs Mr. Mohammed Zakir Hussein — Execution and Attachment | Bombay HC (2020)

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8.FA-644-13.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO.644 OF 2013

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Tahir Mohd.Hussain … versus Mohammed Zakir Hussein …

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Appellant

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Respondent

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Ms.Sapna Krishnappa i/b Suresh Dubey for the Appellant.

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CORAM :- SMT.BHARATI DANGRE, J.

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DATE :- MARCH 9, 2020

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P.C. :-

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The First Appeal assail the order dated 8^th January, 2013 passed on a Notice of Motion No.2508 of 2012, by which an exparte decree passed on 6^th August, 2012 was prayed to be set aside.

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Suit bearing No.1842 of 2010 was fled seeking a declaration and injunction against the defendant (the present appellant) and the same came to be decreed since there was no appearance on part of the defendant for cross-examination of the plaintiff. The Bombay City Civil Court, in the impugned judgment, by making a reference to Order 9 Rule 13 of the Code of Civil Procedure, recorded a fnding that no suffcient cause has been shown to the satisfaction of the Court to enable it to intervene and in

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M.M.Salgaonkar

8.FA-644-13.doc

particular, no reasons are to be found in the said application justifying the absence of the defendant when the matter was called for hearing.

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In paragraph Nos.11 to 13, the learned Judge has taken into account the sequence of events and noted that after the matter was adjourned on 29^th March, 2012 for exhibiting the documents and for cross examination, on 26^th July, 2012, the documents came to be exhibited in absence of the defendants and then the matter was adjourned for cross-examination. Again on 3^rd August, 2012, when the matter was fxed for cross-examination, the defendant and his advocate remained absent. Resultantly, the evidence of the plaintiff was closed without cross-examination and the matter was posted for arguments. After hearing the arguments, the suit came to be decreed on 6^th August, 2012.

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The Court, therefore, recorded a clear fnding that neither the defendant nor his advocate were diligent in presenting themselves in the Court for cross-examination and no suffcient cause being shown, rejected the prayer and Notice of Motion No.2508 of 2012 came to be dismissed by the impugned order.

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Perusal of the order impugned clearly refect that there was no justifcation for the learned Judge to intervene since it was

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M.M.Salgaonkar

8.FA-644-13.doc

noted that the defendant and his advocate were not diligent in prosecuting the matter and particularly on the consecutive three dates, their absence was marked and the fnding was returned that they were not diligent in prosecuting the matter.

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No infrmity is to be found in the impugned order. Resultantly, it is upheld.

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First Appeal No.644 of 2013 stands dismissed.

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(SMT.BHARATI DANGRE, J.)

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Page 3 of 3

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M.M.Salgaonkar

Mr. Tahir Mohd.Hussain v. Mr. Mohammed Zakir Hussein

Case brief

What is this about?

What did the court decide?

Mr. Tahir Mohd.Hussain v. Mr. Mohammed Zakir Hussein

Case brief

What is this about?

What did the court decide?

What the court decided

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