Allowed

Mrs. Kiran Rohit Mehta through Poa Holder v. Sou. Surekha Hanumantrao Pawar and Ors.

Bombay HC15 Jan 2024WP/1247/2019

Case brief

AI extract

What is this about?

This High Court quashed impugned orders dismissing a suit for want of service on respondents due to counsel's lethargy and petitioner's illness. The delay was condoned, respondents were ordered to be served afresh within two weeks, and the suit directed to proceed.

What did the court decide?

Impugned order dated 15.07.2016 and subsequent orders quashed and set aside. Delay condoned. Petitioner to serve respondents within two weeks. Suit to proceed.

Mrs. Kiran Rohit Mehta through Poa Holder Vs Sou. Surekha… — Property and Title | Bombay HC (2024)

¶1

12.wp.1247.19.doc

¶2

Ajay

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶4

WRIT PETITION NO. 1247 OF 2019

¶5

Kiran Rohit Mehta..Petitioner
Versus
Surekha Hanumantrao Pawar and Ors..Respondents

¶6

Mr. Anirban Tripathy, Advocate for Petitioner.

¶7

Mr. Jayesh Madhav Joshi, Advocate for Respondent No.3.

¶8

CORAM:MILIND N. JADHAV, J.
DATE:JANUARY 15, 2024.

¶9

P.C.:

¶10

1. Heard Mr. Tripathy, learned Advocate for Petitioner and Mr. Joshi, learned Advocate for Respondent No.3.

¶11

2. This Writ Petition is filed taking exception to the order dated

¶12

15.07.2016 which is at Exhibit “B” - page No.31 of the Writ Petition.
It is hand written order recording that despite specific order the
Plaintiff and his Advocate took no effective steps to serve Defendant
Nos.3 and 4 and as such the Suit stood dismissed against Defendant
Nos.3 and 4 for want of taking steps.

¶13

3. Mr. Tripathy, learned Advocate for Plaintiff who is Petitioner before me would submit that pursuant to this order, Plaintiff filed two Applications before the learned Trial Court for setting aside of the aforesaid dismissal order. Copies of these Applications are appended to the Writ Petition as Exhibit “C” and Exhibit “E”. One such

¶14

1 of 5

¶15

12.wp.1247.19.doc

¶16

Application filed below Exhibit “45” which was dismissed by the
learned Trial Court by passing a reasoned order is placed at Exhibit “G”
- page No.46 of the Writ Petition. Since the Application filed below
Exhibit “45” was dismissed, second Application filed by the Petitioner
below Exhibit “66” was also dismissed accordingly following Suit.

¶17

4. Being aggrieved, Petitioner has filed the present Writ Petition.

¶18

5. Mr. Tripathy would immediately draw my attention to the fact that the reasons for non-prosecution for the delay were two-fold namely that the Plaintiff was ill and advised to take bed rest and in that view of the matter, he could not appear before the Trial Court personally nor could take any steps thereafter.

¶19

6. Next he would submit that the Advocate appointed by Plaintiff also did not take any steps to effect service on Defendant Nos.3 and 4, resultantly leading to the passing of the order dated 15.07.2016 as also the order dated 16.03.2018. He would fairly submit that the learned Trial Court has in paragraph Nos.6 to 8 given reasons that recourse was available to the Plaintiff to file a Review Petition or even file a fresh Suit within the prescribed period of limitation after dismissal of the Suit qua Defendant Nos.3 and 4. He would submit that it has been stated by the learned Trial Court that exercise of inherent jurisdiction under Section 151 of the Code of Civil Procedure,

¶20

2 of 5

¶21

12.wp.1247.19.doc

¶22

1908 cannot be exercised to set aside dismissal of the Suit which is
impliedly prohibited. Therefore he has urged the Court to consider the
aforesaid two grounds and pass appropriate orders in the interest of
justice and set aside the impugned orders.

¶23

7. At the outset, Mr. Joshi would submit that the Petitioner had infact filed a Review of the order passed below Exhibit “45” before the learned Trial Court but has not placed on record the outcome of the said Review Application.

¶24

8. Mr. Tripathy in his usual fairness would submit that the Review Application according to his instructions was dismissed.

¶25

9. Mr. Joshi would next submit that he appears for original Respondent No.3. In so far as original Respondent No.4 is concerned, it is informed to the Court that the original Respondent No.4 has relinquished her right by executing a deed of release in favour of Plaintiff’s brother.

¶26

10. Be that as it may, from the above it is clear that there has been lethargy and delay on the part of the Advocate for the Petitioner in managing the Suit proceedings which is self explanatory from various Applications made time and again and the orders passed by the learned Trial Court recording the same. Defendant Nos.3 and 4 were admittedly not served.

¶27

3 of 5

¶28

12.wp.1247.19.doc

¶29

11. For the negligence and lethargy of the Advocate, I do not find any grave reason to dismiss the Plaintiff’s Petition in view of the reasons mentioned in the impugned order and the facts and circumstances of the present case.

¶30

12. In that view of the matter, the impugned order dated 15.07.2016 stands quashed and set aside.

¶31

13. Mr. Tripathy undertakes to serve the Respondent Nos.3 and 4 afresh within a period of two weeks from today.

¶32

14. In view of the above, the impugned order dated 15.07.2016 stands quashed and set aside, subject to Petitioner paying costs of Rs.5,000/- to be paid over to the Kirtikar Law Library, High Court, Mumbai which shall be paid within a period of two weeks from today and receipt of payment shall be placed on record with the Registry. Delay stands condoned.

¶33

15. In view of the above, the two orders passed below Exhibit “45” and Exhibit “66” which are referred to herein above shall also stand quashed and set aside.

¶34

16. Suit is directed to be proceeded with thereafter in accordance with law.

¶35

4 of 5

¶36

12.wp.1247.19.doc

¶37

17. Suit to appear before the Trial Court on 01.02.2024. Parties shall mention the Suit for listing before the Trial Court alongwith a copy of this order on 31.01.2024.

¶38

18. Writ Petition is disposed.

¶39

 [ MILIND N. JADHAV, J. ]

¶40

Ajay

¶41

Digitally signed AJAY by AJAYTRAMBAK TRAMBAK UGALMUGALE UGALMUGALE Date: 2024.01.15 18:02:12 +0530

¶42

5 of 5

Mrs. Kiran Rohit Mehta through Poa Holder v. Sou. Surekha Hanumantrao Pawar and Ors.

Case brief

What is this about?

What did the court decide?

Mrs. Kiran Rohit Mehta through Poa Holder v. Sou. Surekha Hanumantrao Pawar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Shri Annappa Maruti Zalke Vs Shri Ramu Balappa Bogarnal

Gayatri Sagar Deshmukh vs Sagar Kishor Deshmukh

Shri Annappa Maruti Zalke Vs Shri Ramu Balappa Bogarnal

M/S. Kalpsutra Developers Thr. Its Partners. Vs Tarabai Kanha Zuge and Ors.

Omkar Sakhar Karkhana Pvt. Ltd. Thr Its General Manager Vs Brima Sagar Maharashtra Distilleries Ltd. Thr Its General Manager and Anr.

Shri Uttam Baliram Kad and Ors. Vs Shri. Kailas Dhondiba Kadu and Ors.