JUSTINE FRANCIS CARDOZ Vs. BHASKAR BHATT

JUDGEMENT

(1.) THE Petitioner landlord is challenging the order of the Appeal Court of the Small Causes Court at Bombay dated 9.9.1997 whereby the Appeal Court was pleased to confirm the order of the Trial Court to Set aside the ex-parte decree passed in favour of the Petitioner in an Application filed by the Respondent tenant after a period of 30 days from the date of the exparte decree. The Petitioner is aggrieved by those orders and has therefore filed the present Civil Revision Application. The facts in nut shell are as under :

(2.) ON 21.11.1989, the Petitioner had filed a Suit bearing No.R.A.E. Suit No.4372 of 1989 in the Court of Small Causes at Bombay for eviction of the Respondent-tenant on the grounds of arrears of rent and bonafide requirements. The Respondent-tenant was duly served with the Writ of Summons and in response thereto he had filed his Written Statement on 22.11.1990. Issues came to be framed on 1.3.1995. Thereafter according to the Petitioner, the suit had appeared on the board of the Court Room No.10 several times for hearing and finally for exparte decree but the Respondent failed to remain present in the Court on those dates. Finally the learned Judge was pleased to pass an exparte decree on 11.4.1996 in favour of the Petitioner. On 26.8.1996 the Petitioner issued notice before execution being Misc. Notice No.567 of 1996. It is further averred by the Petitioner that the said notice was pasted on the suit premises on 21.9.1996. It appears that after the receipt of the notice the Respondent tenant had filed a Misc. Notice No.726 of 1996 for setting aside the exparte decree on 22.10.1996. The Petitioner had filed his reply on 27.11.1996. Thereafter it appears that both the parties had filed affidavits/rejoinders/sur rejoinders etc. On 27.2.1997 the Trial Court had given its Judgment and Order and had made the notice in Misc. Application absolute whereby the exparte decree was set aside. The Petitioner had carried the matter in Revision before the Appellate Bench of the Court of Small Causes at Bombay. The said Revision Application also came to be dismissed on 9.9.1997.

(3.) IT appears from the Judgment of the Trial Court that the Petitioner urged that there was no power or jurisdiction to condone delay in filing an application for setting aside exparte decree as contemplated under Article 123 of the Limitation Act read with Order 9 Rule 13 of the Civil Procedure Code. It is also seen from the appeal memo that the point of jurisdiction to condone delay in setting aside exparte decree was taken by the petitioner before the Appeal Court also. The Trial Court has in paragraph 9 of its Judgment noted certain rulings of PATNA HIGH COURT, RAJASTHAN HIGH COURT AND also SUPREME COURT on the said point. However, the learned Judge appears to have lost sight of that point and has not given any specific finding on the issue whether there is power or jurisdiction vested in Court to condone delay under Article 123 of the Limitation Act. Even the appeal court has not dealt with the said point though it was specifically taken in the memo of appeal and was argued before the appeal Court. Both the courts have presumed that they have power and jurisdiction to condone delay and have proceeded to consider the reasons and grounds given by the Respondent for filing the application for setting aside the exparte decree after the period of 30 days. The main ground of the Respondent is that he was sick and his wife was also sick and his advocate suffered Paralysis attack and therefore the Respondent could not attend the Court as he had no knowledge of the dates of the proceedings. Both the courts have considered and accepted the grounds given by the Respondent for condonation of delay in filing an application for setting aside the exparte decree.