Quashed

Shri. Narendrasingh Mani and Anr. v. Vinodkuamr Shankarlal Songar and Ors.

Bombay HC24 Mar 2023WP/3979/2021

Case brief

AI extract

What is this about?

The High Court of Bombay disposed of a writ petition challenging an order rejecting an application to set aside an ex-parte hearing. Findings that the original application was bereft of details, the court quashed the impugned order and remanded the matter to the trial court for a detailed application.

What did the court decide?

The impugned order was quashed and set aside; the petitioners were directed to file a detailed application within two weeks.

Shri. Narendrasingh Mani and Anr. Vs… — Civil Procedure and Limitation | Bombay HC (2023)

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wp-3979/21.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3979 OF 2021

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Narendrasingh Maini & Ors....Petitioners.
 Versus
Vinodkumar Shankarlal Songar
and Others...Respondents.

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___________________
Mr. R. D. Soni i/b Ms. Meena R. Sharma for the Petitioner.

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Coram : Sharmila U. Deshmukh, J.

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Date : March 24, 2023.

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P. C. :

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1. None appears for the respondents. As limited controversy is

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raised in the present petition, the petition is taken up for hearing.

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2.Heard. By this petition, the challenge is to the order dated 27th
January 2021 passed below Exhibit-162 in Special Civil Suit No.680 of
2016 rejecting the petitioner’s application for setting aside the order of
ex-parte hearing dated 21st January 2017 and taking the written
statement on record.

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3. Mr. Soni, learned counsel appearing for the petitioners submits

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Digitally signed by SACHIN patilsr SACHIN RAMCHANDRAPATIL RAMCHANDRA PATIL Date: 2023.03.27 19:01:31 +0530

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that the admitted position is that the petitioners (original defendant
Nos. 1 and 2) were served through the substituted service by way of a
paper publication. It is his submission that the said paper publication
was not noticed by the petitioners. He further contends that
subsequently in the year 2020, the plaintiff, i.e, respondent No.1 had
moved an application below Exhibit-5 in the said suit, of which notice
was served on the petitioners and, the petitioners became aware of the
pending suit for the first time in the year 2020. He would further
contend that the petitioners appeared and contested Exhibit-5
application, by filing a detailed reply. He would further contend that it
is at that point of time, the petitioners realised that there is an order of
ex-parte hearing, and as such, an application came to be preferred for
setting aside the said order of ex-parte hearing, which has been
rejected giving rise to the present petition.

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4.Perused the application dated 5th January 2021 filed by the
petitioners seeking to set aside the order of ex-parte hearing and
permission to file written statement on record. The application is bereft
of any details and it merely states that the notice was issued in the year
2020 and thereafter the petitioners had appeared. In my opinion, it is
necessary that the proper application giving all the details is required

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patilsr

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to be filed inasmuch as the trial Court has to apply its mind and
exercise the discretion for setting aside the order for ex-parte hearing,
particularly when the suit is of the year 2016.

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5.In this context, it is also pertinent to note that defendant no.1-
respondent No.3 herein was also served with a paper publication and
he thereafter appeared in the said suit, which is the stand taken by
respondent No. 1 in the affidavit-in-reply filed in the present petition.

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6.Considering that there is no dispute that the petitioners were
served through paper publication, it cannot be deemed improbable
that the petitioners were not aware of the litigation. It is not clear as to
why the substituted service was permitted instead of service of
summon by regular mode/course. I, therefore, deem it appropriate to
quash and set aside the impugned order and remand the matter back
to the trial Court with liberty to the petitioners to file a detailed
application setting out the relevant facts / averments justifying their
non appearance in order to enable the trial Court to apply its mind and
to pass orders afresh.

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7. Considering the above, the impugned order is quashed and

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set aside. The petitioners to file a detailed application for setting aside
the order for ex-parte hearing dated 21st January 2017 and seeking such
other reliefs, as deemed appropriate, within a period of two weeks from
today. In the peculiar facts and circumstances of the case and in the
interest of justice, the trial Court is requested to decide the proposed
application of the petitioners as expeditiously as possible and
preferably within the period of six weeks of its filing.

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8. Writ petition is disposed of in the aforesaid terms.

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[Sharmila U. Deshmukh, J.]

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patilsr

Shri. Narendrasingh Mani and Anr. v. Vinodkuamr Shankarlal Songar and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Narendrasingh Mani and Anr. v. Vinodkuamr Shankarlal Songar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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