BALUBEN MASHRUJI Vs. SUSHILABEN N BATRA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India assails a legality and correctness of the order dtd. 21/6/2014 passed below Exh.1 in delay condone application no.238 of 2012 by which the Appellate Bench of Small Causes Court, Ahmedabad, was pleased to reject the said delay condone application and did not satisfy with the reasons, preventing the petitioner for not preferring the application for setting aside the ex-parte decree in a prescribed time limit.

(2.) This Court has heard learned counsels Mr.Viral Shah and K.V. Shelat for the respective parties.

(3.) Facts and circumstances giving rise to file present petition are that the respondent plaintiff filed a HRP Suit No.1136 of 1994, in the Court of Small Causes Court, Ahmedabad, for possession of the suit property on the ground that tenant Baluben Masruji - original defendant was arrears on rent and she acquired suitable alternative accommodation. The defendant tenant had contested the suit by filing her written statement at Exh.30. After considering the pleadings, the Court-below framed issues at Exh.50. During the suit proceedings, the plaintiff entered into witness box on 11/7/2001 and after completion of preliminary cross-examination of the plaintiff by advocate of tenant defendant, he sought adjournment so as to enable him to obtain necessary instructions and accordingly, the matter was adjourned for further cross examination on 20/7/2001. Again on that day, the defendant's advocate applied for time and the matter was adjourned on 7/8/2001. On 7/8/2001, when the matter was taken, learned advocate for the defendant filed "no instructions pursis". In these circumstances, the Court-below closed the right of the defendant to cross- examine the plaintiff and the matter was adjourned for further proceedings on 16/8/2001. On 16/8/2001, the plaintiff closed his evidence by passing pursis at Exh.37 and case was adjourned on 3/9/2001 for recording the evidence of defendant side. On 3/9/2001, counsel for the defendant submitted the pursis intending his withdrawal from the case along with letter of intimation sent to the petitioner defendant through RPAD and acknowledgment thereof. The case was proceeded further ex-parte. The suit was decreed by the Court-below vide its judgment and decree dtd. 12/9/2001. The defendant tenant directed to handover the vacate and peaceful possession of the suit premises to the plaintiff on or before 31/12/2001. In the aforesaid facts, in order to get fruits of the decree, the execution petition no.54 of 2012, filed by the respondent plaintiff and service of notice was served upon the tenant defendant.