SHOHRAB VALI MOHAMED Vs. INAMUDDIN

JUDGEMENT

(1.) A startling and strange situation emerges from this writ petition. The petitioner is plaintiff in Short Cause Suit No. 422 of 1989. That suit was ended by passing a compromise decree on 13-3-1989. According to the terms of compromise, the suit Hotel known as Bismilla Hotel, was to be vacated by the respondent after 5 years. After the lapse of 5 years it is alleged that the respondent did not vacate the suit hotel. Not only that, he took out a Notice of Motion out of which the writ petition has arisen for setting aside the compromise decree. The contention of the respondent before the Court below was total denial of knowledge of the compromise decree. He pleaded that he was not aware of the suit, he did not receive the suit summons and he did not engage any lawyer. In this background, the lower Court has considered the contention.

(2.) IT is revealed from the Courts records, that on 7-2-1989, in the Short Cause Suit No. 422 of 1989 on the file of the Civil Judge, City Civil Court, Bombay, the Rozanama of the Court shows that on that day, the defendant and Advocate absent. However, Mr. Lulia, Counsel for the plaintiff made a representation that the matter is being settled and therefore, he does not press for ad-interim reliefs. Accordingly, the matter was adjourned to 3-3-1989. On 3-3-1989 Shri Pohumal, holding for Mr. Lulia, Advocate for the plaintiff was present. The defendant and advocate absent. Shri Pohumal states that he was trying to have the matter settled and requested for time and the matter adjourned to 13-3-1989. On 13-3-1989 Shri Lulia appeared for the plaintiff and Shri Meghrajani, Advocate for the defendant was present. Plaintiff and defendant were also present in Court. Shri Meghrajani waives service of the summons. The learned advocates handed over in Minutes of the decree which were taken on record and marked as Exh. A and decree in terms of the minutes was recorded and undertaking accepted. In view of the above Mr. Lulia, does not press Notice of Motion No. 1573 of 1989 dated 13-3-1989. The suit and the Notice of Motion were disposed of accordingly. This decree is sought to be set aside by the respondent in the trial Court. An attempt seems to have made by the trial Court to go in the veracity of the statement made by the defendant that he was not aware of the suit and he was not communicated by the lawyer and he was not a party to the compromise decree. In the discussion, the lower Court has observed in para 10 thus :-In the present case as the record shows the consent decree were filed by the parties and that a decree was also passed as per the consent terms. There is also a Vakalatnama in favour of one M. D. Meghrajani, executed by the defendant on record. The contention of the defendant is, however, of total lack of knowledge of filing of the suit or the consent terms. It is stated emphatically that neither the Consent Terms nor the Vakalatnama was signed by the defendant, nor did he know advocate Mr. Meghrajani. It is also stated that the defendant never attended the Court since he had no knowledge of filing of the suit or any application made therein".

(3.) IN other portion of the order, the lower Court has recorded thus :--