A housing society sought condonation of an 11-year-and-28-day delay in appealing against an ex parte decree, blaming its former advocate and a changed managing committee. The court found the explanation insufficient, dismissed the condonation application, and consequently dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
11-ia-866.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.866 OF 2024
IN
APPEAL (L) NO.33359 OF 2024
WITH
APPEAL (L) NO.33359 OF 2023
IN
EXA. NO.329 OF 2023
WITH
Digitally signed by SMITA SMITA RAJNIKANT RAJNIKANT JOSHI JOSHI Date: 2024.08.07 15:11:23 +0530
INTERIM APPLICATION (L)NO.8308 OF 2024
IN
APPEAL (L) NO.33359 OF 2023
The Deccan Co-operative Housing Society Limited
.. Applicant/ Appellant.
Versus
Nandkumar D. Rajpurkar
.. Respondent.
Adv. Mr. Vikramjit Garewal with Ms. Neha Mehta, Ms. Aayushi Gohil and Mr. Akshay Dhayalkar i/b. M. T. Miskita & Co., for the Applicant/ Appellant.
Adv. Mr. Yatin R. Shah i/b. Yatin Shah & Co., for the Respondent.
CORAM: B. P. COLABAWALLA &
FIRDOSH P. POONIWALLA, JJ.
DATE: AUGUST 5, 2024
P. C.
Page 1 of 4 AUGUST 5, 2024
S.R.JOSHI
11-ia-866.doc
“2:The Applicant Society states that resultantly the Defendant filed the Suit No.1111 in the year 2000. The Applicant states that the Defendant Society had filed vakalatnama through their earlier advocate on record Mr. Devendra V. Raut.
3:The Applicant Society states that the Society had lost all its contact with the advocate on record and advocat on record also failed and neglected to update the Defendant Society about status of the original suit.
4:The Applicant states that on 6th September 2012 the suit was decreed exparte as the advocate on record for the Defendant Society failed to appear and the Applicant Society was not aware about ex parte Judgement and Decree dated 6th September 2012, passed by this Hon’ble Court.
5:The Applicant Society states that since they had lost all contacts with earlier advocate on record and since advocate on record also failed to appear in the matter, ex parte Judgement and Decree was passed. The Applicant Society states that during the span of entire trial i.e. 2000 to 2012, the Managing Committee of the Society was changed and due to such change, the new Managing Committee was not aware about the pendency of the suit before this Hon’ble Court. The Applicant Society states that due to non-communication from the advocate on record and due to lack of knowledge, ex parte Judgement and Decree was passed and subsequently the said ex parte Judgement and Decree 6th September 2012 remain unchallenged.
6:The Applicant Society states that the most of the Managing Committee members of Society are senior citizens, and they travel for their personal work/business out of Mumbai and due to which the Applicant Society could not keep track on the status of the suit and ultimately decree was passed.
Page 2 of 4 AUGUST 5, 2024
S.R.JOSHI
11-ia-866.doc
9:The Applicant Society states that due to non-appearance and non-communication by the advocate on record of the Society the Applicant Society is suffering from ex-parte Judgement and Decree dated 6th September 2012 and facing Execution Application No.329 of 2023. The Applicant Society states that nonappearance on behalf of the Applicant Society was not intentional or deliberate however since the advocate on record irresponsibly neglected the proceedings of the Trial Court the ex-parte decree was passed. The Applicant Society states that the committee members are not aware about present status or whereabouts of the earlier advocate on record. The Applicant society states that the Defendant Society should not be held responsible for mistake and neglicence of the advocate on record.”
Page 3 of 4 AUGUST 5, 2024
S.R.JOSHI
11-ia-866.doc
after the writ of summons was served, the Applicant Society entered appearance, but thereafter did nothing and did not even file any Written Statement. It was in these circumstances that the suit was transferred to the list of un-defended suits and thereafter an ex-parte decree was passed, which is impugned in the present Appeal.
[FIRDOSH P. POONIWALLA, J.] [B. P. COLABAWALLA, J.]
S.R.JOSHI
1 issue framed by the court
Whether the delay of 11 years and 28 days in filing the appeal should be condoned on the grounds of the advocate's negligence and change in the society's managing committee.
The Deccan Co-operative Housing Society Limited
Nandkumar D. Rajpurkar
B. P. Colabawalla
Firdosh P. Pooniwalla
As recorded by the court registry
7 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
