CHANDRIKABEN SHANTILAL CHAUHAN Vs. KRISHNABEN GULSHANBHAI BUTANI

JUDGEMENT

(1.) THE petitioners are the original plaintiffs. They had filed Regular Civil Suit No.121/92. They had prayed for vacant possession of the suit premises from the defendants. It is not in dispute that summons of the said suit were duly served on the defendants -present respondents. In fact, it appears that the defendants also actively participated in the suit at the stage of Ex.5 application being decided by the Trial Court. It appears that, however, thereafter there was no participation from the defendants. Many years after the suit was instituted, the Trial Court took up the same for trial. Neither the defendants nor their advocate remained present for many occasions. In fact, admittedly, no written statement was ever filed by the defendants. For want of presence of the defendants or their advocate, the Trial Court also proceeded ex parte and at one stage closed the stage of the defendants leading their evidence.

(2.) ON 6.3.03, advocate for the defendants appeared before the Trial Court and passed a purshis stating that since long time he has received no instructions from the defendants nor have they contacted him. He has in fact written a registered AD letter to them on 18.2.03 asking them to contact him. Despite the said letter, the advocate has not received any instructions from the defendants. He also produced a registered acknowledgment due before the Court and his letter dated 18.2.03 along with his purshis. In the letter, he has stated that the suit has been placed for leading evidence. Next date of hearing is 6.3.03. They should, therefore, contact the advocate in the morning of the date of hearing. If they failed to do so, the advocate would be compelled to pass no instruction purshis. There is no dispute that this registered AD communication was duly served on one of the defendants. Despite this communication, defendants did not contact their advocate. He, therefore, passed purshis as mentioned above on 6.3.03 requesting the Court to permit him to retire.

(3.) ON this purshis, the Court passed order permitting the advocate to retire, but by way of abundant caution also issued notice to the defendants. There is some dispute about this notice not being served on the defendants. Ultimately, the Trial Court proceeded in absence of any representation from the defendants. The suit came to be decreed on the basis of the evidence led by the plaintiff on 22.12.04. The defendants, however, took no steps for considerably long time thereafter also. Eventually, the petitioners were compelled to start execution proceedings. It is the case of the respondents that only upon service of summons from the Executing Court that they came to know that ex -parte judgment and decree has been passed. They, therefore, moved an application being Civil Misc. Application No.25/05 before the Trial Court on 26.7.05. They prayed that the ex parte decree be set aside. The Trial Court, after initially issuing notice on the petitioners and after bi -parte hearing rejected the application by a detailed order dated 10th March 2006. The respondents thereupon approached the District Court and sought setting aside of the orders passed by the Trial Court. They, therefore, filed two separate proceedings for this purpose. Both these applications were consolidated and by an order dated 23.1.2007,the appellate Court allowed the applications. The petitioners -original -plaintiffs have therefore approached this Court by way of present petition.