Disposed

Mr. Narayan Janu Dhumal through Ca Smt. Yashodabai Vishnu Sardesai v. Mr. Vithal Shankar Nalawade

Bombay HC27 Oct 2021WP/2335/2020

Case brief

AI extract

What is this about?

The High Court in Bombay allowed a consideration stay on an interim order related to eviction and execution proceedings while granting leave to the petitioner to file a substantive appeal to challenge the original ex-parte decree under Section 96(2) of the CPC.

What did the court decide?

Leave to file a substantive appeal under Section 96(2) CPC granted; effect of interim execution order kept in abeyance pending appeal.

Mr. Narayan Janu Dhumal through Ca Smt. Yashodabai Vishnu… — Landlord and Tenant | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2322 OF 2020

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WITH

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WRIT PETITION NO. 2335 OF 2020

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Mr. Narayan Janu Dhumal
Through CA
Smt. Yashodabai Vishnu Sardesai…..Petitioner

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Vs.

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Mr. Vithal Shankar Nalawade…..Respondent.

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Mr. Jagdish N. Jayale for the Petitioner.
Mr. Umesh J. Desai for the Respondent.

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CORAM : A. S. GADKARI, J.
 DATE : 27th OCTOBER, 2021.

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P.C.:-

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Petitioner, Original Defendant/Tenant has invoked jurisdiction

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of this Court under Article 227 of the Constitution of India, impugning
Judgments and Orders dated 11th February, 2020 passed by the Appellate
Bench of Court of Small Causes at Mumbai (Bandra Branch) in
Miscellaneous Appeal No.156 of 2019 in Marji Application No.21 of 2014 in
R.A.E. & R. Suit No.158 of 2010, thereby dismissing the said Appeal
preferred by him and in Revision Application No. 104 of 2019 in Marji
Application No. 21 of 2014 in R.A.E. & R. Suit No. 158 of 2010, thereby
dismissing the said Revision preferred by him respectively.

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Miscellaneous Appeal No. 156 of 2019 was preferred by the
Petitioner before the Appellate Bench of Court of Small Causes, Mumbai
(Bandra Bench) against the Order dated 2nd May 2019 passed in Marji
Application No. 21 of 2014 by the learned Judge (C.R.No.33) of the Court
of Small Causes, Mumbai (Bandra Bench), thereby rejecting his application
filed below Exh.9, under Order 9 Rule 13 of the Civil Procedure Code, for
setting aside ex-parte decree dated 17th June 2013 passed in R.A.E. & R.
Suit No.158 of 2010.

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Revision Application No. 104 of 2019 was filed by the
Petitioner against the Order dated 2nd May 2019 passed in Marji Application
No.21 of 2014 by the learned Judge (C.R.No.33) of the Court of Small
Causes, Mumbai (Bandra Bench), thereby allowing the said application
filed by the Respondent/original Plaintiff for issuing Show Cause Notice to
the Petitioner, before execution of the decree dated 17th June 2013 passed
in R.A.E.& R. Suit No. 158 of 2010 and for making it absolute.

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2Brief facts giving rise for filing of the present Petitions are as

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under:-

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(a)Respondent-Landlord had filed R.A.E. & R. Suit No.158
of 2010 against the Petitioner-Tenant for eviction, on various grounds, more
specifically pleaded in the plaint of the said Suit. Despite due service of
writ of summons, Petitioner did not appear before the Trial Court and
therefore the suit proceeded ex-parte against him. The Trial Court by its

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Judgment and Order dated 17th June, 2013 was pleased to decree the said
Suit with costs. Trial Court also directed the Petitioner to hand over the
vacant and peaceful possession of the suit premises within stipulated period
and also issued notice before execution.

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(b)Respondent, subsequently, filed Marji Application No.21
of 2014 before the Trial Court for issuing Show Cause Notice to the
Petitioner (Judgment Debtor) before execution of the Decree and making it
absolute.

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(c)After receipt of notice of the said Marji Application,
Petitioner appeared before the Trial Court and filed her reply dated 28th
February, 2016 below Exh-9. In the said reply, Petitioner prayed for setting
aside the ex-parte decree dated 17th June, 2013, as contemplated under
Order 9 Rule 13 of the CPC and for dismissal of Marji Application No.21 of
2014.

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(d)The Trial Court, by its common Order dated 2nd May,
2019 was pleased to allow the said Marji Application No.21 of 2014 and
dismissed reply/application of the Petitioner filed below Exh-9, for
restoration of the said Suit.

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(e)Feeling aggrieved by the said Order dated 2nd May, 2019
thereby rejecting his application filed below Exh.9 under Order 9 Rule 13 of
C.P.C. for setting aside ex-parte decree dated 17th June 2013 passed in
R.A.E.& R. Suit No.158 of 2010, the Petitioner preferred Miscellaneous

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Appeal No.156 of 2019 on 15th June, 2019 before the Appellate Bench of
the Court of Small Causes at Mumbai (Bandra Branch).

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(f) Petitioner also preferred Revision Application No. 104 of
2019 against the Order dated 2nd May 2019 passed by the Trial Court in
Marji Application No.21 of 2014, thereby allowing the said Application,
made the Show Cause Notice absolute and the Respondent/Original
Plaintiff was given liberty to take out execution application to execute the
said decree.

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(g)Various grounds were taken by the Petitioner in the said
Appeal and Revision including the ground that, the Suit premises is situated
in a slum area; the Slum Authority has declared the said area as Slum and
therefore the provisions of Rent Act are not applicable to the Suit premises.
The Appellate Court predominantly considered the factum of proper service
of suit summons upon the Petitioner and came to the conclusion that, no
case for setting aside the impugned Order was made out and was pleased to
dismiss the said Appeal, so also the Revision by its Judgments and Orders
dated 11th February 2020.

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3Petitioner has preferred Writ Petition No.2322 of 2020 against
the Judgment and Order dated 11th February 2020 passed in Miscellaneous
Appeal No. 156 of 2019 thereby confirming the Order dated 2nd May 2019
passed below Exh.9, dismissing the said application for setting aside ex-
parte decree and restoration of the said Suit.

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Petitioner has preferred Writ Petition No. 2335 of 2020 against
the Judgment and Order dated 11th February 2020 passed in Revision
Application No. 104 of 2019, confirming the Order dated 2nd May 2019
passed in Marji Application No. 21 of 2014, thereby allowing the same by
making Show Cause Notice absolute and granting liberty to the Respondent
to take out application for execution of decree passed in R.A.E.& R. Suit No.
158 of 2010.

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4These Petitions were heard on earlier occasion. After hearing
the learned counsel for the Petitioner at length, when this Court was not
inclined to interfere with the Order dated 2nd May, 2019 passed below Exh.9
in Marji Application No.21 of 2014 and Judgment and Order dated 11th
February, 2020 passed in Miscellaneous Appeal No.156 of 2019, as this
Court was satisfied that, the service of summons upon the Petitioner was
duly and properly effected and there was no ground made out for setting
aside the decree as contemplated under Order 9 Rule 13 of the CPC, Mr.
Jayale, learned counsel for the Petitioner, on instructions, seeks leave to
withdraw Petition No.2322 of 2020 with liberty to file a substantive First
Appeal as contemplated under Section 96(2) of the CPC, challenging the
Judgment and Order dated 17th June, 2013 passed by the Court of Small
Causes at Mumbai (Bandra Branch) in R.A.E. & R Suit No.158 of 2010.

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He submitted that, filing of a substantive Appeal under Section

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96(2) of C.P.C. against the Judgment and Decree dated 17th June 2013 is

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permissible in view of the decision of the Supreme Court in the case of
Bhivchandra Shankar More Vs. Balu Gangaram More & Ors. reported in
2019(4) ALL MR 409 (S.C.).

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5.It is to be noted here that, the Hon’ble Supreme Court in
paragraph Nos.11 and 12 of the said decision has held as under:-

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“11. It is to be pointed out that the scope of Order IX Rule 13
Code of Civil Procedure and Section 96(2) CPC are
entirely different. In an application filed under Order IX
Rule 13 CPC, the Court has to see whether the summons
were duly served or not or whether the defendant was
prevented by any "sufficient cause" from appearing when
the suit was called for hearing. If the Court is satisfied
that the defendant was not duly served or that he was
prevented for "sufficient cause", the court may set aside
the ex-parte decree and restore the suit to its original
position. In terms of Section 96(2) CPC, the appeal lies
from an original decree passed ex-parte. In the regular
appeal filed under Section 96(2) CPC, the appellate
court has wide jurisdiction to go into the merits of the
decree. The scope of enquiry under two provisions is
entirely different. Merely because the defendant pursued
the remedy under Order IX Rule 13 CPC, it does not
prohibit the defendant from filing the appeal if his
application under Order IX Rule 13 CPC is dismissed.

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12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of

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the statutory right of appeal merely on the ground that
the application filed by him under Order IX Rule 13 CPC
has been dismissed. In Bhanu Kumar Jain v. Archana
Kumar and Another, (2005) 1 SCC 787 : [2005(5) ALL
MR 257 (S.C.)], the Supreme Court considered the
question whether the first appeal was maintainable
despite the fact that an application under Order IX Rule
13 CPC was filed and dismissed. Observing that the
right of appeal is a statutory right and that the litigant
cannot be deprived of such right, in paras (36) and (38),
it was held as under:-

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 “36. …....A right to question the correctness of
the decree in a first appeal is a statutory right.
Such a right shall not be curtailed nor shall any
embargo be fixed thereupon unless the statute
expressly or by necessary implication says so.
[See (2004) 5 SCC 385, Deepal Girishbhai Soni
and Other. v. United India Insurance Co. Ltd.,
Baroda and Chandravathi P.K. and Others v. C.K.
Saji and Others (2004) 3 SCC 734].”

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“38. The dichotomy, in our opinion, can be resolved by
holding that whereas the Defendant would not be
permitted to raise a contention as regards the
correctness or otherwise of the order posting the
suit for ex parte hearing by the trial court and/or
existence of a sufficient case for non-appearance
of the defendant before it, it would be open to
him to argue in the first appeal filed by him

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under Section 96(2) of the Code on the merits of
the suit so as to enable him to contend that the
materials brought on record by the plaintiffs were
not sufficient for passing a decree in his favour or
the suit was otherwise not maintainable. Lack of
jurisdiction of the court can also be a possible
plea in such an appeal. We, however, agree with
Mr. Chaudhari that the "Explanation" appended to
Order 9 Rule 13 of the Code shall receive a strict
construction as was held by this Court in Rani
Choudhury v. Lt.-Col. Suraj Jit Choudhary
(1982) 2 SCC 596, P. Kiran Kumar v. A.S. Khadar
and Others (2002) 5 SCC 161 and Shyam Sundar
Sarma v. Pannalal Jaiswal and Others (2005) 1
SCC 436.”

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In view of the aforestated principles of law enunciated by the
Hon’ble Supreme Court in the case of Bhivchandra Shankar More (supra),
the Petitioner is having substantive remedy of filing an Appeal under
Section 96(2) of the CPC and therefore, leave to file such an Appeal has to
be granted to the Petitioner and is accordingly granted.

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It is needless to mention that, the said leave is subject to the
law of limitation as may be applicable for filing of the Appeal.

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6In view of the above, Writ Petition No.2322 of 2020 is disposed
off as withdrawn by granting liberty to the Petitioner to file a substantive
Appeal thereby impugning the Judgment and Order dated 17th June 2013,

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passed by the Court of Small Causes at Mumbai (Bandra Branch) in R.A.E.
& R Suit No.158 of 2010.

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If the Petitioner prefers the said First Appeal, in that case the
Respondent-landlord will be at liberty to file an application for fixing
additional compensation with respect to the rented premises as per the law
laid down by the Hon’ble Supreme Court in the case of Atma Ram
Properties (P.) Ltd. Vs. Federal Motors Pvt. Ltd., reported in 2005(3)
Bom.C.R.274.

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It is further needless to mention that, the First Appellate Court
will also be at liberty to impose any conditions as may be permissible under
the provisions of law while granting stay to the Judgment and Decree
passed by the Trial Court.

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7As far as Writ Petition No. 2335 of 2020 is concerned wherein
the Order dated 2nd May 2019 passed in Marji Application No. 21 of 2014
by the learned Judge (C.R.No.33) Court of Small Causes is impugned, it is
to be noted here that, filing of the said Marji Application No.21 of 2014 is a
consequence of passing of Judgment and Decree dated 17th June 2013, in
R.A.E.& R. Suit No. 158 of 2010. As the said Judgment and Decree is passed
in favour of the Respondent, he filed the said Marji Application for issuance
of notice to the Petitioner before execution of the decree. As noted herein
above by an Order dated 2nd May 2019, the Trial Court allowed the said
application and permitted the Respondent to take out an application for

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execution of decree passed in the said R.A.E.& R. Suit No. 158 of 2010.

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8In Writ Petition No.2322 of 2020, this Court has permitted the
Petitioner to file a substantive appeal against the Judgment and Decree
dated 17th June 2013. If the Petitioner filed such an appeal and succeeds in
it, in that event the Order dated 2nd May 2019 passed in Marji Application
No. 21 of 2014 granting permission to the Respondent to execute the
Decree may not survive. However, if the Petitioner fails in the said
substantive Appeal, in that case the Respondent will have to pursue
execution of decree dated 17th June 2013 passed in R.A.E.& R. Suit No. 158
of 2010.

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In view of the above, it will be appropriate in the interest of
justice that, the effect and implementation of Order dated 2nd May 2019
passed in Marji Application No. 21 of 2014 in R.A.E.& R. Suit No. 158 of
2010 by the learned learned Judge (C.R.No.33) of Court of Small Causes,
Mumbai (Bandra Bench) be kept in abeyance till the decision of the First
Appeal to be preferred by the Petitioner.

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In case the Petitioner fails in his substantive appeal preferred
against the Judgment and Decree dated 17th June 2013, the Respondent
will be at liberty to pursue execution of Decree in furtherance of the said
Order dated 2nd May 2019.

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Nothing further survives in Writ Petition No.2335 of 2020 and
is accordingly disposed off.

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9At this stage, the learned counsel for the Respondent landlord
made a grievance that, since the year 2010, the Petitioner has not paid any
amount towards rent and therefore, interim relief granted in his favour may
not be continued till filing of the substantive first Appeal before the
Appellate Court.

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Mr. Jayale, on instructions submitted that, the Petitioner will
deposit 50% of the arrears of rent as of 31st October, 2021 in the Registry of
the Small Causes Court before filing the substantive First Appeal under
Section 96(2) of the CPC. The said statement is accepted as undertaking
given to this Court.

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In case, the Petitioner fails to deposit the said amount before
filing of the substantive first Appeal before the Appellate Court, the
Appellate Court is requested to consider to issue further necessary
directions in respect of the payment of arrears of rent and additional
monthly compensation, if any, to be fixed at the time of granting the stay to
the impugned Judgment and Order as contemplated under Order 41 Rule 5
of the CPC.

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10Mr. Jayale, learned counsel submitted that, the Petitioner will
file An Appeal before the Appellate Court of Small Causes at Mumbai within
a period of four weeks from the date of uploading of the present Order on
the High Court Website.

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In view thereof, ad-interim relief granted by the Appellate
Court, which was continued by this Court, by its Order dated 11th March,
2020 in Writ Petition No.2335 of 2020 and further continued from time to

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time is further extended by four weeks from the date of uploading of the
present Order on the High Court Website.

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 (A.S. GADKARI, J.)

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Digitally signed by SANJIV SANJIV SHARNAPPA SHARNAPPA MASHALKAR MASHALKAR Date: 2021.11.12 16:18:14 +0530

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Mr. Narayan Janu Dhumal through Ca Smt. Yashodabai Vishnu Sardesai v. Mr. Vithal Shankar Nalawade

Case brief

What is this about?

What did the court decide?

Mr. Narayan Janu Dhumal through Ca Smt. Yashodabai Vishnu Sardesai v. Mr. Vithal Shankar Nalawade

Case brief

What is this about?

What did the court decide?

What the court decided

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