LAWS(BOM)-1982-10-2

NANUBHAI M PATEL Vs. JAGMOHANLAL BILASARI RUNGTA

Decided On October 25, 1982
NANUBHAI M.PATEL Appellant
V/S
JAGMOHANLAL BILASARI RUNGTA Respondents

JUDGEMENT

(1.) Both the appeals arise out of the same suit. A.O. No. 416/1982, however, arises out of the order passed by the trial Court refusing to set aside the ex parte decree passed against the present appellant, who was the defendant in the suit, while First Appeal No. 710/1982 is filed by him, by way of abundant caution, against the ex parte decree itself challenging the same on merits. As will be presently pointed out, the appeal from order has got to be allowed because the learned Judge has dismissed the defendants notice of motion for setting aside the ex parte decree without really applying his mind to the facts and equities of the case. Moreover, he has confused and jumbled between the application for setting aside the ex parte decree and the merits of the defence. I am stating here that since I am allowing the appeal from order and setting aside the ex parte decree passed against the defendant, it is unnecessary for me to admit First Appeal No. 710/82 and to appreciate the reasoning of the learned Judge while passing the ex parte decree. But I make it clear that if it was necessary, I would have not hesitated to admit First Appeal No. 710/1982 because I am prima facie satisfied that the decree is susceptiable to challenge even on merits.

(2.) It is unnecessary to state the facts of the case which are already stated in the judgment of the learned trial Judge at length. It is enough here to state that the suit out of which the present appeal arises, namely, Summary Suit No. 2166/62 was filed by the respondent-plaintiff against the defendant for recovery of a sum of Rs. 10,299/- alleging that the two sums, namely Rs. 8,000/- and Rs. 1,000/- were lent and advanced by the plaintiff to the defendant on 8-3-1961 as a friendly loan. Contention was that two debit vouchers, for having received the said amounts, were signed by the defendant. The plaintiffs contention further was that the defendant had agreed to pay interest at the rate of 1 per cent per month on the said amount of Rs. 9,000/-. It is because of the said vouchers purporting to have been signed by the defendant for Rs. 8,000/- and Rs. 1,000/- respectively that the suit was filed by the plaintiff as a summary suit for recovery of the said amount with interest. After the suit was filed as a summary suit, the defendant file this return and hence summons for judgment was taken out by the plaintiff. The Court was satisfied that the defence set up by the defendant did disclose a genuine arguable defence for the defendant. Hence, the Court gave an un-conditional leave to the defendant to defend the suit. After this order, an order was passed by the Court transferring the suit filed as the summary suit to the list of long causes. It is on this account that the suit remained marking time and waiting in the queue of long-cause suits for a full period of 20 years in the City Civil Court. But soon after the defendant received un-conditional leave to defend the suit, the learned Advocate appearing for the defendant, Shri T.R. Desai was elevated to the bench of the City Civil Court. It does appear that the defendant had information about this fact. It is, however, clear that the defendant did not choose to appoint any other person in place of Shri T.R. Desai at any time. By the time the suit reached hearing, Shri T.R. Desai had already ceased to be a Judge and has started practising in the Court once again. However, it is the case of the defendant that Shri T.R Desai had handed over the papers in relation to the suit to his Junior Shri V.B. Mehta. As will be presently pointed, this does appear to be the position. The defendant, therefore, felt secured that the suit filed against him by the plaintiff would be looked after by said Shri V.B. Mehta. The suit appeared on the Board for hearing on 25-2-1982 and on account of want of time, it was adjourned firstly to 8th March and thereafter to 20th March and from 20th March to 30th March, 1982. On 30th March it reached hearing at about 4.00 p.m. It is not disputed before me that the Board showed Shri T.R Desai to be the defendants Advocate. On that date, the plaintiff and his Advocate were present, but no one remained present on behalf of the defendant. A notice purporting to have been addressed by the plaintiffs attorneys Haridas & Co., to said Shri V.B. Mehta informing him about the date of the suit, was produced by the plaintiffs learned Advocate before the learned Judge. Upon this production, the learned Judge was satisfied that the defendant had no sufficient reason to remain absent. He was also satisfied that the suit did not lose it summary character merely because un-conditional leave was granted by the Court to defend the suit. The learned Judge, therefore, did not require the plaintiff to go into the witness box to prove his case. He did not even require the plaintiff to produce any document. He just proceeded to hold that the defence was disproved and on this basis he decreed the plaintiffs suit with costs.

(3.) On this fact about the ex parte decree, Haridas & Co., attorney for the plaintiff, gave a notice to the defendant. It was at that time that the defendant learnt that the suit was ever on Board. He tried to contract Shri T.R Desai who was already on record and who, according to the defendants, was to look after the suit, although for some time when he was not in charge of the litigation on behalf of the defendant. According to the defendant, Shri T.R. Desai had gone out of station and hence, he engaged his present learned Advocate, who took search of the Court papers and thereafter took out a notice of motion for setting aside the ex parte decree. In the affidavit in support of the notice of motion, he stated the above mentioned facts and tried to point out to the Court that in the circumstances narrated by him, it would not be said that his absence on the date 30-3-1982 was without sufficient cause.