DHANVANTRAI R JOSHI Vs. SATISH J DAVE

JUDGEMENT

(1.) THIS Notice of Motion has been taken out for setting aside the ex parte decree dated 12th September, 1995. An affidavit in support of the Notice of Motion has been filed. The suit has been filed by the plaintiffs against the defendants for a declaration that the original Plaintiff was the owner of the suit premises and thus the defendants have no right, title or interest or claim to the suit flat or possession thereof and the defendant Nos. 2 and 3 be ordered and decreed to hand over to the plaintiffs peaceful vacant possession of the suit flat No. 202 on 2nd floor of Vasant Apartment, Plot No. 98, Daulat nagar, Borivli (East), Bombay-400066, more particularly described in the Schedule Exhibit-A to the plaint. The original Plaintiff took out a Notice of Motion. In the said Notice of motion by an order dated 9th March, 1992 justice Variava appointed the Court Receiver as the Receiver of the suit flat and the Court receiver is in possession of the suit flat.

(2.) ON 16th June, 1995 the above matter appeared before the prothonotary and Senior master for direction. The Advocate for defendant No. 1 did not appear when the matter was called out. Thus, the matter was adjourned for undefendant long causes list. After the adjournment Advocate for defendant No. 1 mentioned the matter before the Prothonotary and Senior Master and requested for time to file written statement. It was requested for time to file written statement. It was requested that the matter be removed from the undefended long cause list. The Prothonotary directed defendant No, 1 to see and as and when the matter reached for undefended long cause. On 12th September, 1995 the matter appeared on the Board of Mrs. Justice Baam for undefended long causes when the Counsel for defendant No. 1 was not present. Thus, the decree came to be passed in favour of the plaintiffs and against the defendants. On the same day at 2. 45 p. m. Advocate for defendant No. 1 mentioned the matter and requested the Court to set aside the ex parte decree passed in the suit. However, the papers were not in Court therefore, office was directed to place the above matter on daily board for ex parte decree on 19th September, 1995. The defendant No. 1 was also directed to file the written statement within one week. By his letter dated 13th September 1995 Advocate for defendant No. 1 informed the Advocate for the plaintiff that the matter is fixed on 19th September, 1995 for filing the written Statement. On 19th September, 1995 the matter did not appear on the daily board. Thus, advocate for defendant No. 1 mentioned the matter to the Court and requested that the written statement may be taken on record. The Advocate was, however, directed by the Court that since the matter was not on Board, the written statement could be tendered in Court in the next week. The court also directed the office to place the matter on board for ex parte decree on 26th september, 1995. On 26th September 1995 when the matter was called out advocate for defendant No. 1 tendered the written statement in Court and requested the Court to set aside the ex parte decree dated 12th September, 1995. The advocate for the plaintiffs, however, objected to the written statement being taken on record. Thus a direction was issued by the Court that the defendant No. 1, if so advised, may take out appropriate proceedings. Consequently the present Notice of motion has been taken out.

(3.) IN addition to the aforesaid facts it is stated that on 29th March, 1995 defendant no. 1 took search of the papers and proceedings and came to know that the plaintiffs have not served the defendant No. 1 with the writ of summons till 1995. The writ of summons was allowed to be issued by this Court on 10th feb, 1995. The said writ of summons was issued in February, 1995 and made returnable on 9th June, 1995. This was, however, never served on defendant No. 1 or his advocate on record. The writ of summons were served on one M/s. Niranjan Jagtap. and Co. on 28th march, 1995. The affidavit of service made by clerk of the plaintiffs' advocate dated 3rd july, 1995 was made by the said Clerk stating that the writ of summons was served on M/ s. Niranjan Jagtap and Co. on 28th March, 1995. It is stated that the aforesaid firm is no more acting for defendant No. 1. The said firm has given their consent on the Vakalatnama dated 10th January, 1995 in favour of- the present advocate Shri S. G. Walam and also handed over all the papers to defendant No. 1, Thus it is stated that the said Niranjan jagtap and Co. had no authority to accept the writ of summons on behalf of defendant No. 1, It is stated that the said Advocate acted in collusion with the plaintiff and accepted the service of writ of summons for the purpose of taking ex-parte decree against defendant No. 1. It is further stated that the plaintiffs' advocate was aware that Shri S. G. Walam, Advocate is acting for defendant No. l. This information was given to the Plaintiffs' advocate by. the letter of advocate for defendant No. 1 dated 30th September 1995. The plaintiffs were aware about the Notice of Motion as the notice of Motion along with the letter dated 24th March, 1995 together with the copy of the affidavit in support was served upon the present Advocate of defendant No. 1. The court Receiver by his letter dated 8th March, 1995 addressed to the plaintiffs' advocate informed the defendant No. 1 that the Court receiver will be taking possession of suit premises, if they failed to bring order from the high Court. Since the plaintiff was aware that the Advocate has b?en changed they should have served the writ of summons either on defendant No. 1 or on the changed Advocate shri S. G. Walam. Thus it is stated that the ex parte decree has been obtained fraudulently by misrepresenting and misguiding this Court. It is further stated that defendant No. 1 has a very good case on merit. The written statement was declared on 14th September, 1995 and the same may be allowed to be filed.