Dismissed¶8

Ram-Saket Co-Operative Housing Society Ltd. v. Domnic Anthony D039SOUZA (Since Deceased) through His Legal Heirs and Ors.

Bombay HC17 Jan 2025IA/6672/2024

Case brief

AI extract

What is this about?

setting aside ex-parte order; recall of ex-parte decree; insufficient cause for non-appearance; unattended suit transfer; Prothonotary notice transfer below one crore; City Civil Court pecuniary jurisdiction; 171 days delay; written statement after 17 years; Suit No. 182 of 1988; Notice of Motion No. 3969 of 2014; Ram-Saket Co-operative Housing Society; Bombay High Court Appeal from Order 618 of 2015; Jitendra Jain J.; interim relief vacated.

What did the court decide?

None; the appeal was dismissed, interim relief (if any) stood vacated, and Interim Application No. 6672 of 2024 and Civil Application No. 764 of 2015 were disposed of. ¶8

Ram-Saket Co-Operative Housing Society Ltd. vs Domnic Anthony D039SOUZA (Since Deceased) through His Legal Heirs and Ors. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None; the appeal was dismissed, interim relief (if any) stood vacated, and Interim Application No. 6672 of 2024 and Civil Application No. 764 of 2015 were disposed of.

¶8

Issue for consideration

Whether any ground is made out for recalling the ex-parte decree/order dated 10.04.2014 and for quashing the order dated 07.04.2015 dismissing Notice of Motion No. 3969 of 2014 filed by original defendant no.3.

¶1

Court's answer

No fault can be found in the impugned order dismissing the motion to set aside the ex-parte order, for the reasons stated therein: (i) the defendant's non-appearance led to the suit being transferred to the 'unattended suit' category; (ii) defendant no.3 filed his written statement only after 17 years; (iii) the notice of transfer from the High Court to the City Civil Court was published; and (iv) the notice dated 19.07.2013 was served yet there was no appearance.

¶6

Ratio / Principle

Despite service of the notice dated 19.07.2013, there was no appearance by the defendants, reinforcing the absence of any sufficient and good cause for non-appearance found by the City Civil Court.

¶6

Key takeaways

No ground is made out for recalling of the ex-parte decree or quashing the impugned order.ratio¶7

Detailed headnote1 paragraphs

Appeal from Order dismissed. The appellant (original defendant no.3) challenged the City Civil Court's order dated 07.04.2015 rejecting its Notice of Motion No. 3969 of 2014 (filed with a delay of 171 days) for setting aside the ex-parte order dated 10.04.2014 in Suit No. 182 of 1988. Confirming the findings below, the Single Judge held that no fault could be found in the impugned order because: the defendant's non-appearance caused the suit to be transferred to the 'unattended suit' category after its transfer from the High Court pursuant to the Prothonotary's notice dated 28.12.2012 regarding suits below one crore; the written statement was filed only after 17 years; the transfer notice was published; and although the notice dated 19.07.2013 was served on defendant nos.1 to 3, there was no appearance. Held that no ground was made out for recalling the ex-parte decree or quashing the impugned order; appeal dismissed, interim relief vacated, and the Interim Application and Civil Application disposed of.

¶1

HMK 1 24. AO-618-2015.doc

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶3

APPEAL FROM ORDER NO. 618 OF 2015 WITH

¶4

Digitally SAYYED signed by SAEED SAYYEDSAEED ALI ALI AHMED ALI AHMED Date:2025.11.07 ALI 13:47:57 +0530

¶5

INTERIM APPLICATION NO. 6672 OF 2024 WITH

¶6

CIVIL APPLICATION NO. 764 OF 2015

¶7

Ram-Saket Co-operative Housing Society Ltd. ….Appellant/Applicant (Org. Defendant No.3)

¶8

Versus

¶9

Domnic Anthony D'Souza (Since Deceased) Through His Legal Heirs 1(a) Smt. Luiza & D’Souza Ors.

¶10

.…Respondents

¶11

¶12

Mr. Aditya Seetharaman i/by Mr. Vishal Shriyan for Appellant/Applicant.

¶13

CORAM : JITENDRA JAIN, J. DATED : 06^th NOVEMBER 2025

¶14

P. C. :

¶15

This appeal challenges the order passed on 07^th April, 2015 in Notice of Motion No. 3969 of 2014 in Suit No. 182 of 1988. The impugned order dismisses the motion for setting aside an ex-parte order passed by the City Civil Court on 10^th April, 2014. There is a delay of 171 days in taking out motion. The motion was filed by original defendant no.3.

¶16

In the impugned order in paragraph 10, there is a finding that prior to the increase in the pecuniary jurisdiction of the City Civil Court, the matter was filed in the High Court and the same was transferred to “unattended suit” as the defendant failed to appear before the High Court. There is also a finding that defendant no.3 filed the written statement after

¶17

HMK 2 24. AO-618-2015.doc

¶18

a period of 17 years. The findings in paragraph 10 have not been controverted or disputed by the appellant.

¶19

In paragraph 11, it is further stated that the Prothonotary had issued a notice dated 28^th December, 2012 indicating the transfer of all the suits which are below one crore to the City Civil Court. There is no dispute to this fact also.

¶20

Further in the same paragraph, there is a finding recorded by the City Civil Court that the notice was issued on 19^th July, 2013 to defendant nos.1 to 3, but there was no appearance by the defendants. This has also not been disputed. If the contention of defendant no.3 is that the notice of 19^th July, 2013 was not issued, then the remedy was to move the City Civil Court for appropriate directions, but the same has not been done.

¶21

The City Civil Court in paragraph 12 has also given reasoning that defendant no.3 did not take care of his litigation and the Court cannot be expected to inform him time and again. The City Civil Court has come to a conclusion that there is no sufficient and good cause for non-appearance and, therefore, the motion has been rejected.

¶22

I have considered the impugned order. In my view, no fault can be found in the impugned order for the reasons stated therein. Firstly, because of non-appearance of the defendant, the suit was transferred to “unattended suit”. Secondly, defendant no.3 filed the written statement after a period of 17 years which shows how much he was interested in the matter. Thirdly, the notice for transfer of the suit from High Court to City Civil Court was also published and there is no dispute to that. The City Civil

¶23

HMK 3 24. AO-618-2015.doc

¶24

Court has also issued the notice on 19^th July, 2013, but inspite of the same being served, there was no appearance.

¶25

Therefore, no ground is made out for recalling of the ex-parte decree or quashing the impugned order.

¶26

The appeal is dismissed.

¶27

Interim relief granted, if any, stands vacated.

¶28

Interim Application is disposed of in above terms.

¶29

Consequently, Civil Application does not survive and is disposed of.

¶30

[ JITENDRA JAIN, J. ]

Ram-Saket Co-Operative Housing Society Ltd. v. Domnic Anthony D039SOUZA (Since Deceased) through His Legal Heirs and Ors.

Case brief

What is this about?

What did the court decide?

Ram-Saket Co-Operative Housing Society Ltd. v. Domnic Anthony D039SOUZA (Since Deceased) through His Legal Heirs and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Procedural history

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Mr.Sahebrao Kautik Pawar and Anr. vs Mr.Shivaji Kautik Pawar (Since Deceased) and Ors.

Ravindra Laxman Bhosale (DEC.)THR.LRS.1.1) Reshma Ravindra Bhosale vs Cyprian CARDOZ(DEC)THR.LRS.1.1) Shankuntala Cyprian Cardoz

Afghanistan International Bank vs Kec International Limited

The Municipalcorporation of Greater Mumbai Thr. the Assistant Commission Ward Office vs Mrs. Naina Prashant Upadhyay

Lata Umakant Patil and 2 Ors. vs Naumi Developers through Their Authorized Partner

National Insurance Company Ltd. vs Deluxe Recycling (India) Private Limited