MOHOMED FARID ABDUL SATTAR Vs. R N BARSEY

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution, seeking to challenge the order dated 3-10-1974 passed by the Bench of the Small Causes Court, Bombay, in Revision Petition No. 52 of 1974.

(2.) The few facts leading to the present petition are as follows :

(3.) The petitioner is a tenant of the suit premises being a shop situate on Plot No. 62/A, Chembai Road, New Kantawadi, Bandra (West), Bombay---50. The respondents Nos. 1 and 2 are the landladies of the suit premises. The respondents-Landladies had filed a suit being R. A. E. Suit No. 7428 of 1966 against the present petitioner who was defendant No. 3 in the said suit and one Attaulla Cheddi and Sahadatali Mohamed Hanif who were defendants Nos. 1 and 2 in the suit. Defendant No. 1 Cheddi was the original tenant of the suit premises and Defendants Nos. 2 and 3 claimed to be the assignees from the said Cheddi by a registered deed of assignment dated 29-4-1965. The suit was filed for eviction and possession of the suit premises on the ground of arrears of rent, subletting acquisition of suitable alternative accommodation and bona fide requirement. The said suit was contested only by defendants Nos. 2 and 3 and defendant No. 1 was absent. The suit was fixed for hearing on 28-2-1973. On that day none of the defendants or their Advocates were present with the result that the suit was decreed ex parte on the said date. It appears that thereafter an obstructionist notice was taken out on 24-7-1973 against one Shaikh Mohamed Hussain and the same was made absolute on 17-9-1973. The petitioner learnt about the ex parte decree on 22-8-1973 and hence made an application being Miscellaneous Notice No. 1055 of 1973 on 31-8-1973 for setting aside the said ex parte decree. In the said application one T.P.C. Nair, Advocate who was representing the petitioner in the case filed his affidavit dated 3-9-1973 in which he alleged that he was incharge of the matter and that he had failed to inform the defendant No. 3 about the date of the hearing of the suit. He further stated in the said affidavit that he was Advocate on record for defendant No. 3 in the suit and he had taken the responsibility to intimate the date of hearing of the suit to his client. He was very much upset in the months of November and December 1972 and January 1973 on account of his mothers sickness since she was suffering from cancer and therefore could not make personal enquiries about the suit and missed the suit and therefore he could not and did not inform defendant No. 3 about the date of hearing, nor could he himself remain present on 28-2-1973 when the suit was decreed ex parte. In this application an ex parte stay at the execution of the decree was granted and the hearing of the application was fixed on 2-10-1973. In the meanwhile on and from 20-10-1973, admittedly, the said Advocate Nair was debarred from practising, by the Bar Council of Maharashtra for a period of three months. It appears that the hearing of the said application which was fixed on 2-10-1973 was adjourned to 13-11-73 and subsequently it was further adjourned to 21-11-1973 for enabling the plaintiffs to file a reply to the application for setting aside the ex parte decree. On 21-11-1973 neither the petitioner nor his Advocate was present with the result that the application was dismissed on the same day and thereafter possession of the suit premises was taken on 5-12-1973.