ASHA RAMESHKUMAR KANODIA Vs. KRISHNADEVI M KANODIA

JUDGEMENT

(1.) P .C. Leave under Rules 147 and 148 of the High Court of Judicature at Bombay (O.S.) Rules, 1980 is granted to the Defendants to take out the Notice of Motion in terms of the draft Notice of Motion handed in. Notice of Motion made returnable forthwith.

(2.) THIS Notice of Motion has been taken out for setting aside an ex-parte decree passed on 17th December, 1997. The case pleaded in the affidavit in support is that the defendants No.1 and defendant No.8 are aged 75 and 90 years respectively. The defendants No.2 to 4 have been staying at Ahmedabad for the past 15 to 17 years. The defendant No.3 has been living at Calcutta for the last 30 years. The defendants No.6 and 7 are married and staying at their matrimonial houses. The plaintiffs had filed false criminal complaint against the defendants No.1 to 5 and 7 under Section 498-A, 406, 506(II) read with 114 of I.P.C. However, all the accused were acquitted. The present suit has been filed for administration of the estate of Rameshkumar Mahaviraprasad Kanoria. Ex-parte decree has been passed in terms of prayer clauses (a), (b), (c), (d), (e), (f) and (j). The plaintiff is the widow of the deceased, who passed away on 15th January, 1989. The Plaintiffs No.2, 3 and 4 are minor daughters, whereas the plaintiff No.5 is the minor son of the deceased. The defendant No.1 is the mother-in-law of the widow. The defendant No.8 is the grandmother of the deceased.

(3.) AS noticed above, ex-parte decree came to be passed on 17th December, 1997. In the affidavit in support of the Notice of Motion for setting aside the ex-parte decree, it is stated that initially the plaintiffs were being represented by advocate Mr.S.P. Bharati. This advocate gave notice on 13th January, 1992 to the defendants of the draft Notice of Motion for ad interim relief on 14th January, 1992. The defendant No.5 is said to have engaged advocate Smt.Pushpa Bansal to represent the defendants. Ad interim order was passed in favour of the plaintiffs. Thereafter the defendants were represented by advocate Mr.Thomas Almeida. The defendants filed their affidavit in reply on 21st August, 1992. The plaintiffs filed their rejoinder on 6th October, 1992. Thereafter Mr.Almeida had told the defendants that he will look after the proceedings in the Court. The defendants did not hear anything from Mr.Almeida till they received a packet containing Notice of Motion No.3294 of 1995, sent by the plaintiffs advocate Mr.S.P. Bharati. The defendants immediately contacted the advocate Mr.Almeida. He, however, stated his unwillingness to represent the defendants any more, as none of the defendants had been in contact with him for a long period of time, with regard to the earlier Notice of Motion No.461 of 1992. He also stated that the Notice of Motion No.461 of 1992 had already been made absolute and a Writ of Summons was sought to be served on him, to which he had objected as service being contrary to the Rules. The writ of summons was served at about 7.00 p.m., when under the Rules, Writ of Summons cannot be served after 5.30 p.m. Therefore, the defendants engaged advocate Mr. M.K. Jain. On the request of Mr. M.K.Jain, the defendants took no objection from Mr.Almeida. Mr.M.K.Jain obtained signatures of all the defendants on the Vakalatnama. By prefix dated 3rd November, 1996, Mr.M.K.Jain is said to have filed his appearance on behalf of the defendants. Mr.M.K.Jain informed the advocate for the plaintiffs Mr.S.P.Bharati on 4th November, 1996. An affidavit in reply to the Notice of Motion No.3294 of 1995 was also sent. On 1st November, 1996, Mr.M.K. Jain appeared before the Prothonotary & Senior Master when the matter was placed on Board for directions. The counsel for the plaintiffs Smt.A.R. Dhanuka through her counsel undertook to file Vakalatnama, on behalf of the defendants No.1 to 8. The matter was adjourned for 4 weeks. Mr.M.K.Jain enquired for the first time from the defendants whether the Writ of Summons has been served on the defendants or not. He was informed that the Writ of Summons has not been served. They came to know about passing of the ex-parte decree only on 3rd July, 1999. On these averments it is submitted by Mr.S.K.Jain that the Written Statement was not filed as no directions for filing the Written Statement were given. He points out to Roznama. Mr.M.K.Jain appeared for the first time on 1st November, 1996. Prior to that no directions have been given for filing the Written Statement. The Vakalatnama, according to the affidavit, was not filed as on the precipe for filing the Vakalatnama, Suit No.806 of 1992 had been wrongly mentioned instead of Suit No.608 of 1992. Since the Vakalatnama was not on the record, the name of Mr.M.K.Jain was not shown on board. Hence, the ex-parte decree came to be passed.