LACHHIRAM CHUDIWALA Vs. BANK OF RAJASTHAN LIMITED

JUDGEMENT

(1.) This writ petition under Article 227 of the constitution of India is directed against the Judgment and order dated 31. 8. 1996, rendered by the learned Judge of the Small Causes Court at Bombay, by which Misc. Notice No. 84 of 1996 in R. A. E. Suit No. 57/106 of 1992 taken out by the respondents-defendants, hereinafter referred to as "the defendants", has been allowed. The suit filed by the petitioner-plaintiff, hereinafter referred to as "the plaintiff", has been decreed in the absence of the defendants and their advocate vide judgment and order dated 17. 10. 1994, and this judgment has been set aside by the impugned order dated 31. 8. 1996.

(2.) The factual matrix, that is relevant and necessary to deal with the questions raised by the plaintiff, is as follows. The plaintiff had filed a suit against the defendants for a decree of eviction in respect of 400 sq. ft area out of the total area in their possession, admeasuring 1600 sq. ft. , on the first floor of 195, Kalbadevi Road, Mumbai, hereinafter referred to as "the suit premises". The decree was sought on the grounds of arrears of rent, change of user, nuisance, wastage of property, unauthorised additions and alterations and nonpayment of municipal taxes, which are available under sections 12 (1) and 13 (1) (a) of the bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Rent Act"). The defendants were duly served with the suit summons on 6. 2. 1992. On 16. 3. 1992, the defendants Advocate Shri Mehta filed vakalatnama. The facts set out in the petition reveal that the suit was adjourned from time to time at the request of the advocate for the defendants, who sought the adjournments for filing their written statement. On 17. 9. 1993, once again an adjournment was sought on the very same ground and the matter was adjourned to 8. 10. 1993. However, on 8. 10. 1993 or thereafter, neither the defendants nor their advocate appeared and as a result of which the suit came to be decreed ex-parte in their absence vide judgment and order dated 17. 10. 1994. The defendants and their advocate claim that they came to know about the ex-parte decree on 22. 1. 1996 and immediately on 25. 1. 1996 they took out Notice No. 84 of 1996 for setting aside the ex-parte decree dated 17. 10. 1994. That application has been allowed by the order dated 31. 8. 1996, impugned in the present writ petition.

(3.) I heard the learned counsel for the parties at great length and have gone through the entire material placed on record with their assistance. I do not propose to state in detail the submissions advanced by the learned counsel for the parties at this stage, since i will be making reference to their submissions little later at appropriate stage/s. However, let me make short reference to the submissions advanced and the questions raised by the learned counsel for the parties which I am called upon to address in the judgment. Mr jain, learned counsel for the petitioners, challenged the impugned order on three grounds: firstly, that the trial court lacked jurisdiction to entertain the application filed by the defendants for setting aside the decree. The only remedy open to the defendants was to file an appeal against the decree, it being a decree under Order 8, rule 5 (2) of the Code of Civil Procedure (for short, "cpc"). The application under Order 9, rule 13 was not tenable for setting aside such decree. Secondly, he submitted that even if it is assumed that the decree is under Order 9, rule 6 of CPC, the defendants have not made out any case or have shown sufficient cause for setting it aside. On the contrary, the facts on record establish that the defendants had been grossly negligent, indifferent towards the process of court and there was total lack of diligence. And lastly, he submitted that the court below ought to have rejected the application as barred by limitation. In other words, the delay in filing the application had not been properly explained, no sufficient cause was shown to condone the delay and hence ought to have been rejected on that ground.