M/S. Mark Constructions and Anr. vs Narendra… — Writ and Judicial Review | Bombay HC (2025)

M/S. Mark Constructions and Anr. vs Narendra… — Writ and Judicial Review | Bombay HC (2025)

What the court decided

AI extract

Outcome

Quashing and setting aside of the order dated 11th April 2023 (learned Judge, Small Causes Court, Mumbai, in MARJI Application No.117 of 2022) and the order dated 21st September 2023 (Division Bench, Small Causes Court, Mumbai, in Revision Application No.160 of 2023); restoration to file of the MARJI Application seeking setting aside of the ex-parte decree dated 14th August 2021, to be decided on merits; all contentions expressly kept open; no order as to costs.

Issue for consideration

Whether MARJI Application No.117 of 2022 (for setting aside the ex-parte decree dated 14th August 2021), filed on 23rd May 2022, was within limitation in view of the Supreme Court's order dated 10th January 2022 in Suo Motu Writ Petition (C) No.3 of 2020 excluding the period 15.3.2020 to 28.02.2022 for limitation, such that the accompanying condonation-of-delay application was unnecessary. +1 more

Court's answer

In view of the Supreme Court's order (excluding the period 15.3.2020 to 28.02.2022 for limitation), there was no delay in filing MARJI Application No.117 of 2022 on 23rd May 2022; the condonation application was accordingly withdrawn as having been filed on a misconception.

Ratio / Principle

The order dated 11th April 2023 passed by the learned Judge, Small Causes Court, Mumbai, in MARJI Application No.117 of 2022, as well as the order dated 21st September 2023 passed by the Division Bench of Small Causes Court, Mumbai, in Revision Application No.160 of 2023, are quashed and set aside.

Key takeaways

The MARJI Application seeking setting aside of the ex-parte decree dated 14th August 2021 passed in L.E. & C. Suit No. 58/65 of 2014 is restored to file and is to be decided on merits.ratio¶22
This Court has not considered the merits of the MARJI Application seeking setting aside of the ex-parte decree; all contentions of both parties on that question are expressly kept open.obiter¶23

Detailed headnote1 paragraphs

Limitation — Condonation of delay — Supreme Court's order dated 10th January 2022 in Suo Motu Writ Petition (C) No.3 of 2020 excluding the period 15.3.2020 to 28.02.2022 for limitation — MARJI Application No.117 of 2022 for setting aside ex-parte decree dated 14th August 2021 in L.E. & C. Suit No.58/65 of 2014, filed on 23rd May 2022, was within time; the condonation-of-delay application was withdrawn as filed on a misconception — Consequently, the order dated 11th April 2023 of the learned Judge, Small Causes Court, Mumbai, and the order dated 21st September 2023 of the Division Bench of Small Causes Court, Mumbai in Revision Application No.160 of 2023 were quashed and set aside — The setting-aside application restored to file, to be decided on merits; merits not considered and all contentions kept open — Writ petition under Article 227 of the Constitution of India disposed of with no order as to costs (Madhav J. Jamdar, J.).

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Vaibhav

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.6804 OF 2024

M/s. Mark Constructions & Anr. …Petitioners

Versus

Narendra Ganpatlal Dave & Ors. …Respondents

Mr. G. S. Godbole Senior Advocate i/b Ms. Pooja Yadav, for Petitioners. Mr. Vinaykumar Dinanath Tripathi, for Petitioner No.2. Mr. V. S. Kapse a/w Mr. Freddy Bhodha, for Respondent Nos. 1 & 2.

CORAM: MADHAV J. JAMDAR, J. DATED: 20 JANUARY 2025

P.C.:

1. By the present Writ Petition filed under Article 227 of the Constitution of India, the challenge is to the Order dated 11^th April 2023 passed by the learned Judge, Samll Causes Court, Mumbai, below Exhibit-1 in MARJI Application No.117 of 2022 in L.E. & C. Suit No.58/65 of 2014. The said MARJI Application has been filed seeking condonation of delay in filing MARJI Application for setting aside exparte decree dated 14^th August 2021 passed in L.E. C. & Suit No.58/65 of 2014. The said MARJI Application No.117 of 2022 admittedly has been filed on 23^rd May 2022.

2. Mr. Godbole, learned Senior Counsel, appearing for the Petitioner, submits that the Supreme Court by Order dated 10^th January 2022 passed in the Suo Motu Writ Petition (C) No.3 of 2020 has directed that

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the period from 15.3.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Learned Senior Counsel further states that in cases where the limitation would have expired during the period between 15.3.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. It has been further clarified that in the event the actual balance period of limitation remaining with effect from 01.03.2022 is greater than 90 days then, that longer period shall apply.

3. Mr. Godbole, learned Senior Counsel states that thus MARJI Application filed on 23^rd May 2022 for setting aside ex-parte decree dated 14^th August 2021 was within limitation. He therefore submits that the MARJI Application seeking condonation of delay has been filed on misconception that there is a delay in filing the MARJI Application seeking setting aside ex-parte decree dated 14^th August 2021.

4. In view of the direction of the Supreme Court, Mr. Godbole, learned Senior Counsel, on instructions, seeks withdrawal of the MARJI Application No.117 of 2022 filed for condonation of delay in filing MARJI Application for setting aside ex-parte decree dated 14^th August 2021.

5. As MARJI Application No.117 of 2022 itself is withdrawn, as

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there was no delay in view of the Order of the Supreme Court, Order dated 11^th April 2023 passed by the learned Judge, Small Causes Court, Mumbai, in MARJI Application No.117 of 2022 as well as Order dated 21^st September 2023 passed by the Division Bench of Small Causes Court, Mumbai, in Revision Application No.160 of 2023 are quashed and set aside.

6. Consequently, the MARJI Application filed seeking setting aside ex-parte decree dated 14^th August 2021 passed in L.E. & C. Suit No. 58/65 of 2014 is restored to file and the same be decided on merits.

7. It is clarified that this Court has not considered the merits as far as MARJI Application seeking setting aside ex-parte decree is concerned and all contentions of both the parties in that behalf are expressly kept open.

8. The Writ Petition is disposed of in above terms with no order as to costs.

[MADHAV J. JAMDAR, J.]

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