TARAMATI BHAGWANDAS VITHLANI Vs. NAVJIVAN GULAB GAIKWAD

JUDGEMENT

(1.) Rule, made returnable forthwith. Counsel appearing for Respondent No.1 waives service. By consent taken up for hearing and final disposal.

(2.) The Petitioner is the owner of an immovable property by the name of Taramati Bhagwandas Vithlani Chawl situated at S.M. Marg, Kurla (West), Mumbai. The First Respondent was the tenant of the Petitioner in respect of a room bearing Room No.238. A suit for eviction was instituted against the First Respondent on the ground of unlawful subletting, change of user and nuisance. It is an undisputed fact that the writ of summons was served on the First Respondent. It is equally undisputed that several adjournments were sought on behalf of the First Respondent for filing a written statement and time was granted by the Learned Trial Judge. No written statement was filed. The suit was decreed by the Small Causes Court on 23rd October, 2002. A notice before execution of the decree was taken out and was served on the First Respondent on 7th April, 2003 and possession was handed over to the Petitioner. On 21st April, 2003 the Petitioner moved an application for setting aside the ex parte decree. The application admittedly was beyond the period of limitation prescribed under Article 123 of the Schedule to the Limitation Act, 1963.

(3.) The Learned Trial Judge dismissed the application by a judgment and order dated 11th February, 2004. An appeal was preferred before the Appellate Bench of the Court of Small Causes which was allowed by an order dated 24th March, 2005 and the Petitioner was directed to restore possession to the First Respondent.