MEHENDARA P. SHAH Vs. GURUPREET KAMALJEET AND ORS.

JUDGEMENT

(1.) Heard Mr. D.H. Mehta, learned Counsel for the petitioner and Mr. Rahul Kedar, learned Counsel for the respondents No. 2 to 4, 6 to 10 at length. By this petition under Article 227 of the Constitution of India, original defendant No. 12 has challenged the judgment and order dated 27-3-2015 passed by the learned Judge, City Civil Court for Greater Bombay in Notice of Motion No. 880 of 2015 in L.C. Suit No. 6832 of 2005 (High Court Suit No. 2319 of 2005). By that order, the learned trial Judge dismissed the Motion taken out by the petitioner, hereinafter referred to as defendant No. 12 for condoning the delay of 2200 days in filing the Motion as also for setting aside ex parte order dated 17-2-2009 passed in the above suit.

(2.) In support of this petition, Mr. Mehta strenuously submitted that suit was instituted initially on the Original Side of this Court on 30-8-2005. On 6-9-2005, this Court passed order restraining the defendants from using in any manner open space of the building for any religious activities and/or from obstructing the ingress and egress of the flat purchasers from their respective premises in the open space of the building. The suit was transferred to the City Civil Court on 1-10-2012. In the meantime, on 17-2-2009, the Prothonotary and Senior Master passed order to the effect that no written statement is filed by defendants No. 1 to 18 and suit as against defendants No. 1 to 18 was transferred to the list of undefended Suits. He invited my attention to the affidavit in support of Motion filed by defendant No. 12 and in particular paragraph 2 thereof. In paragraph 2, it is asserted that defendant No. 1 is a trust and defendants No. 2 to 18 are trustees of defendant No. 1, trust. Initially, defendant No. 12 was looking after the suit but due to age, he could not continuously follow up the matter. Defendant No. 14 Nayan Shah was looking after the suit and other trustees were not aware about the stages of the suit. Defendant No. 14 expired on 11-12-2010. He was the only person having all the details and documents related to the matter. Defendant No. 12 and other trustees were totally unaware about the progress of the matter. Defendant No. 12 is suffering from diabetes and blood pressure. All relevant papers were with defendant No. 14 and the said papers were not traceable. Because of that, defendant No. 12 could not contact advocate to draft the written statement and also could not give instructions in the matter. It is only on 22-2-2015, defendant No. 12 received letter from their advocate for discharging his vakalatnama. He was instructed to come to advocate's office. Since he was not keeping well, he could not meet his advocate in time. There was mis-communication between their advocate and defendants, due to which, advocate representing them filed discharge application. Defendant No. 12 thereafter personally went to advocate's office on 26-2-2015 to give instructions in the matter, but as their advocate was in the Apex Court, Motion could not be filed on 26-2-2015. However, he came to know from his advocate that matter is finally argued by the plaintiff and was kept for judgment. It is in these circumstances, Motion was taken out on 27-2-2015 for condoning the delay of 2200 days and for setting aside ex parte order dated 17-2-2009.

(3.) In support of his submission, Mr. Mehta relied upon the decisions of the Apex Court in the case of Sambhaji vs. Gangabai, 2009 1 BCR 81 and in particular paragraphs 8, 9 and 11 thereof. He submitted that provisions of Code of Civil Procedure, 1908 are procedural law and procedural law should not ordinarily be construed as mandatory. The procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. He submitted that if delay is not condoned and ex parte order dated 17-2-2009 is not set aside, the suit will go unattended and uncontested. Defendants No. 1 to 18 should be given opportunity to file written statement as also cross-examine plaintiffs witness and lead their evidence which will be in the interest of justice. He submitted that defendants No. 2 to 18 being trustees of defendant No. 1 are innocent litigants and therefore, indulgence should be shown to them so as to enable them to participate in the trial. He submitted that within one week from today, defendants No. 1 to 18 will file written statement and in a time bound manner will complete the cross-examination of plaintiff's witness and also will complete their evidence and will not seek undue adjournments. He further submitted that defendants No. 1 to 18 may be put to terms like imposing costs and the Motion may be made absolute in terms of prayer clauses (a) and (b). He also relied upon the decision of the Apex Court in the case of Rafiq vs. Munshilal, 1981 2 SCC 788 to contend that because of mistake of the advocate, litigant should not suffer.