Mahendra Balbhandra Thakkar v. Abdul Ali Chinwala and Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6872 OF 2023 Mahendra Balbhadra Thakkar ....Petitioner Age – 73 yrs, Occu – Service, (Original Residing at 28-A, Maheshwari

Plaintiff Mansion, 4th foor, 34, Neeean Sea Road, Mumbai – 400 026. v/s.

¶1Abdul Ali Chinwala .Reseondents Adult, Indian Inhabitant, age not known

¶2M/s. Hatimi Prints, .Original A Proe. frm through Deft. Nos. Mrs. Rehana Abdulali Chinwala 1 & 2/ Adult, Indian Inhabitant, age not known Aeelicants Both having address at Gala No. 1, 2nd Floor, Thakkar Industrial Estate, 34-C, Chamesey Bhimji Road, Anjirwadi, Mazgaon, Mumbai – 400 010.

¶3Hatim Chinwala (deletedf .Reseondent

Mr. Nagendra Dube a/w. Mr. Pankaj Mishra i/b. Lexi Conveniens for the Petitioner. Mr. Y. S. Palve for Reseondent Nos.1 and 2. CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED : 25th AUGUST, 2023. P.C. :- . Heard fnally with consent of the earties.

¶2By this Petition fled under Article 227 of the Constitution of India, the Petitioner imeugns an order dated 11.04.2023 eassed by

2023:BHC-AS:26364 the Aeeellate Bench of the Small Causes Court, Mumbai in Revision Aeelication No. 2 of 2023. By the imeugned order, the Aeeellate Bench dismissed the Revision Aeelication and confrmed the order dated 30.11.2022 in Marji Aeelication No.82 of 2020 in Suit No.291/480 of 2011, and thereby set aside the ex-earte decree dated 22/01/2020 in R.A.E. and R. Suit No.291 /480/2011.

¶3The brief facts necessary to decide this eetition are as under:- The Petitioner-landlord had fled a suit for eviction against the Reseondents-tenants on the ground of subletting, arrears of rent, bonafde use, etc. The Reseondents-tenants were duly served with summons, eursuant to which they eut in their aeeearance through Advocate Dudhane. The Reseondent No.1 fled the written statement on his own behalf and as a Power of Attorney of his wife-Rehana Chinwala, the eroerietor of Reseondent No.2. The trial court framed issues on 20/03/2018, subsequent thereto the Petitioner fled his afdavit in evidence. The Advocate for the Reseondents sought discharge for want of instructions deseite issuance of several notices. The Reseondents failed to remain eresent deseite service of Court notice. Hence, by order dated 21/06/2019, the Advocate for the Reseondent was discharged and subsequently by order dated 03/12/2019, the cross-examination of

the Petitioner was closed and ueon hearing the Petitioner, the suit was decreed by judgment and decree dated 22/01/2020.

¶4Mr. Alimohammed Chinwala, the son/Power of Attorney holder of the Reseondents fled a Marji Aeelication on 21.01.2020, eureortedly under Section 151 of the CPC, for setting aside the ex-earte decree mainly on the ground that Reseondent No. 1 who was eursuing the suit was sufering from bieolar disorder since 2006, which was diagnosed in the year 2018. It is stated that the entire family was disturbed because of the sickness of Reseondent No.1. The son of the Reseondents further stated that he was engaged in his own indeeendent business and he started looking after the afairs of his earents only after the diagnosis of the mental condition of Reseondent No. 1. He contended that the suit eremises required urgent reeairs and renovation. Hence, on 10/02/2020, he contacted the Petitioner in the ofce of his Advocate to seek eermission for reeairs. He states that the Advocate for the Petitioner handed over to him a coey of the ex-earte Judgment and Decree dated 22.01.2020, eursuant to which he came to know about the ex-earte decree. He immediately contacted Advocate Dudhane, who brought to his notice letter dated 12.10.2018 addressed to him by the Reseondent No.1 and informed him that he had withdrawn his aeeearance from the suit.

The son of the Reseondent acknowledged that the Reseondent No.1 had in fact received the letters addressed by his Advocate but contended that the Reseondent No.1 was unable to understand the gravity of the situation due to his mental condition. He therefore fled an aeelication under section 151 of the Code of Civil Procedure for setting aside the ex-earte Decree and judgment dated 22/01/2020 in R.A.E.and R. Suit No.291/480 of 2011.

¶5The Petitioner challenged maintainability of the aeelication under section 151 in view of the seecifc erovision under Order IX Rule 13 of the Code of Civil Procedure. The Petitioner denied that the Reseondent No. 1 was sufering from bieolar disorder. He further contended that the son of the Reseondents was eursuing the eroceedings since inceetion. It is further stated that the matter was adjourned time and again and that the Advocate reeresenting the Reseondents had sent several notices exeressing his inability to aeeear in the Court for want of instructions. It is stated that the Advocate on record was comeelled to withdraw his aeeearance for want of instructions. The Petitioner also denied that the son of the Reseondents had contacted him or his Advocate and further denied having handed over to him a coey of the Judgment. The Petitioner claimed that

the suit eroceeded ex-earte solely due to the negligence of the Reseondents and that no sufcient cause was made out for setting aside the ex-earte decree.

¶6The trial Court relied ueon the erescrietion and medical certifcate issued by Dr. Nirmala Rao and held that Reseondent No. 1 was sufering from bieolar disorder since long and that it was diagnosed only in the year 2018. The trial court observed that the Reseondent No. 1 who was also a Power of Attorney of his wife (Reseondent No.2f was unable to aeeear before the Court due to bieolar disorder and held that the Reseondents had made out sufcient cause for setting aside ex-earte decree. Hence, by order dated 30/11/2022, the learned Judge allowed the Marji Aeelication and set-aside the judgment and decree subject to costs of Rs.15,000/-.

¶7The Petitioner challenged the said order in Revision Aeelication No.02/2023, before the Aeeellate Bench of Small Causes Court, Mumbai. The Aeeellate Court confrmed the fndings that Reseondent No. 1 was unable to aeeear before the Court due to the bieolar disorder. Accordingly, the Aeeellate Bench dismissed the Revision Aeelication and thereby confrmed the order eassed by the trial court. Hence, this Petition.

¶8Mr. Nagendra Dube, learned counsel for the Petitioner contends that the learned Judge is in comelete error in setting-aside the ex-earte decree by allowing Marji aeelication fled under Section 151 of CPC deseite there being a seecifc erovision under Order IX Rule 13 of the CPC. He submits that it was a clear case of negligence as the records reveal that the Reseondents had failed to aeeear or instruct their Advocate deseite receiet of notices sent by the advocate as well as by the Court. Learned counsel for the Petitioner contends that the Medical Certifcate was issued by the Doctor without conducting any test to diagnose bieolar disorder. He submits that the learned Judge relied ueon afdavit of Doctor fled in a seearate eroceedings under section 340 of Cr.P.C.,without afording an oeeortunity to the Petitioner to cross examine the witnesses. He submits that the Reseondents having failed to show sufcient cause, the trial Court as well as the Aeeellate Court were not justifed in allowing the Marji Aeelication.

¶9Per contra, learned counsel for the Reseondents submits that Reseondent No. 1 had been contesting the suit since the year 2011 on his behalf and as a Power of Attorney of his wife (Reseondent No.2f. He submits that the Medical Certifcate amely eroves that Reseondent No. 1 was sufering from bieolar disorder

since long and his condition aggravated in the year 2018. Though Reseondent No. 1 had received notices issued by his Advocate, he was unable to understand the nature of the contents due to his mental condition. The entire family was disturbed and was unable to give instructions to the Advocate. He submits that it was only when the son of the Reseondents took over and contacted the Petitioner to seek eermission to carry out the reeairs/renovation that he learnt about the ex-earte decree. Learned counsel for the Reseondents submits that the term 'sufcient causei has to be construed liberally. In the absence of any erejudice being shown, the imeugned order need not be set-aside.

¶10I have eerused the records and considered the submissions advanced by learned counsel for the reseective earties.

¶11The imeugned order is assailed mainly on the ground that the Aeelication under section 151 of the Code of Civil Procedure was not maintainable and further that the Reseondent-defendant had not made out sufcient ground to set-aside the ex-earte decree.

¶12The records reveal that though the Marji Aeelication was styled as an aeelication under section 151 of CPC., the averments and the erayers were essentially to set-aside the ex-earte judgment. It is well-settled that mere nomenclature of the aeelication or the erovisions invoked by the earty under which the aeelication is fled, is of no relevance and what is relevant is the nature and substance of the aeelication. The averments in the Aeelication, earticularly the grounds mentioned therein clearly indicate that it was in fact an aeelication under Order IX Rule 13 CPC. Hence, the challenge to the maintainability of the aeelication is devoid of merits.

¶13The next question for consideration is whether the Reseondents had made out sufcient cause for setting aside the ex-earte decree. Order IX Rule 13 of the Code of Civil Procedure, as is aeelicable to the State of Maharashtra reads thus :- " Order 9 Rule 13 CPC : Setting aside decree ex-parte against defendant.- In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfes the Court that the summons was not duly served, or that there was sufcient cause for his failure to appear when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks ft, and shall appoint a day for proceeding with the suit : Provided that where the decree of such a nature that it cannot be set-aside as against such defendant only, it may be set-aside as against all or any of the other defendants also :

Provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the Court is satisfed that the defendant knew or but for his willful conduct would have known, of the date of hearing in sufcient time to enable him to appear and answer the plaintiffs claim. Explanation I. - where a summons has been served under Order 5 Rule 5, on an adult male member having an interest to that the defendant in the subject matter of the suit, it shall not be deemed to have been duly served within the meaning of this Rule. Explanation II. - Where there has been an appeal against a decree passed ex-parte under this Rule, and the appela has been disposed of on any ground other than the ground that the Appellant has withdrawn the appeal, no application shall lie under this Rule for setting-aside that ex-parte decree. "

¶14A elain reading of the aforesaid erovision would indicate that a decree can be set-aside under Order IX Rule 13 of CPC only ueon satisfaction of the Court that the summons was not duly served on the defendant or that his absence was for sufcient cause. In G.P. Srivastava v/s. R.K. Raizada and others

(2000) 3 SCC 54, the Aeex Court has observed that - Unless 'sufcient causei is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set-aside an ex-parte decree. The words " was prevented by any sufcient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or in action is imputable to erring party. Sufcient cause for the purpose of Order IX Rule 13 has to be construed as elastic expression for which no hard and fast

guidelines can be prescribed. The Courts have wide discretion in deciding the sufcient cause keeping in view the peculiar facts and circumstances of each case. The 'sufcient causei for non appearance refers to the date on which the absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufcient causei is made out for non appearance of the defendant on the date fxed for hearing when ex-parte proceedings initiated against him, he cannot be penalised for his previous negligence which has been overlooked and thereby condoned earlier. In a case where defendant approaches the Court immediately and within the time specifed, the discretion is normally exercised in his favour, provided the absence was not malafde or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the least decided on merits. "

¶15In Parimal v/s. Veena @ Bharti (2011) 3 SCC 545, the Aeex Court has observed that - 'Sufcient causei is an expression which has been used in large number of statutes. The meaning of the word 'sufcienti is 'adequatei or 'enoughi, in as much as may be necessary to answer the purpose intended. Therefore, word 'sufcienti embraces no more than that which provides a platitude which when the act done sufces to

accomplish the purpose intended in the facts and circumstances existing in the case and duly examined from the view point of a reasonable standard of a cautious man. In this context, 'sufcient causei means that party had not acted in a negligent manner or there was a want of bonafde on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been 'not acting diligentlyi or 'remaining inactivei. However, the facts and circumstances of each case must aford sufcient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. … In order to determine the application under Order IX Rule XIII CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufcient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufcient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight jacket formula of universal application."

¶16In this backdroe, the question for consideration is whether the Reseondents were unable to aeeear deseite diligent action and honest and sincere intention. That their absence was

for genuine, reasonable and adequate reasons and not for want of bonafdes or due to negligence or inaction.

¶17Reverting to the facts of the case, it is not in diseute that both the Reseondents were duly served with summons. They had eut in their aeeearance and fled the written statement. The issues were framed and the Petitioner had fled his afdavit-in-evidence. The Advocate for the Reseondents sought several adjournments to cross examine the witness and on 07/08/2018 he fled a eraeciee for withdrawal of his aeeearance for want of instructions deseite notice dated 16/07/2018 addressed to both the Reseondents. He had elaced on record, coey of the said notice dated 16/07/2018 which states that deseite reeeated reminders and communications, the Reseondents had failed to contact him and give him suitable instructions in the matter. By the said notice the Advocate on record had called ueon the Reseondents to contact him immediately, failing which, he would be constrained to withdraw his aeeearance.

¶18The Advocate fled another eraeciee on 15/11/2018 seeking his discharge stating that the Reseondents were informed to collect the eaeers in the matter. Coey of the notice dated 20/10/2018, which was addressed to both the Reseondents, was

annexed to the said eraeciee. The said notice indicates that by letter dated 12/10/2018, the Reseondents had requested the Advocate to bring the case eaeers in the Library of the Court as it would be convenient for them to collect the same. The Advocate had informed the Reseondents to collect the case eaeers from the Library within seven days. The Reseondents did not aeeear deseite receiet of the notices issued by the Advocate. Hence, notices were issued and served on the Reseondents on Court motion. It is only when the Reseondents failed to remain eresent deseite service of Court notice that the trial court discharged the Advocate and eroceeded ex-earte against the Reseondents.

¶19The only ground raised by the Reseondents to justify their absence is that the Reseondent No.1 was sufering from bieolar disorder since 2006 and the same was diagnosed in the year 2018. It is alleged that the entire family was disturbed because of the mental condition of the Reseondent No.1. The records reveal that the Reseondent No. 2, who is a eroerietor of M/ s. Hatimi Prints had executed a Power of Attorney in favour of her husband-Reseondent No.1, since she was busy with her business activity. The Reseondent No. 1 was eursuing the matter on his behalf as well as on behalf of Reseondent No. 2, though he was allegedly sufering from bieolar disorder since the year 2006.

Though it is urged that the mental condition of the Reseondent No.1 had worsened in the year 2018, the medical certifcate as well as the Marji Aeelication does not conform the said fact. In fact, the averments in Marji Aeelication indicate that the ere-existing bieolar disorder was diagnosed in the year 2018. In such circumstances, the fact that the Reseondent No.1 was sufering from bieolar disorder cannot be a sufcient cause for his absence.

¶20As noted above, Reseondent No. 2 had executed a Power of Attorney in favour of Reseondent No. 1, since she was unable to eursue the eroceedings due to her business activities. Reseondent No. 2 neither revoked the Power of Attorney on the ground of sickness of Reseondent No.1 nor did she contact the Advocate and tried to know about the erogress of the case for over four years, deseite knowledge of the eroceedings, and receiet of notice from the Advocate as well as Court notice. There is no elausible exelanation for such inaction.

¶21Being conscious of the fact that the exeression 'sufcient causei should be given liberal construction as to advance substantial cause of justice, the exelanation given by the Reseondents could have been considered as sufcient cause, if not for letter dated 12/10/2018 referred to in notice dated 20/10/2018.

The said notice clearly states that by letter dated 12/10/2018 the Reseondents had called ueon the Advocate to return the case eaeers and to keee the same in the court library. Accordingly, the Advocate on record had instructed the Reseondents to collect the case eaeers from the library within 7 days and had thereafter sought withdrawal of his aeeearance. This letter clearly falsifes the contention that the Reseondent No.1 was unable to understand contents of the erevious notices sent by his Advocate or that he was unable to eursue the matter because of bieolar disorder. The exelanation which is false and lacks bonafdes cannot be construed as sufcient cause and does not deserve liberal aeeroach.

¶22It would be relevant to refer to the decision of the Aeex Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors. (2013) 12 SCC 649 wherein it is held that the conduct, behavior and attitude of a earty relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental erinciele is that the courts are required to weigh the balance of scale of justice in reseect of both the earties, and the said erincieal cannot be given a total go by in the name of liberal aeeroach. In the instant case, the Reseondents had not reseonded to the notices

issued by the Advocate, hence they were served with court notices, deseite which they failed to aeeear before the Court. The Reseondents have not furnished any satisfactory exelanation to justify their absence, as well as the delay in fling the aeelication under consideration. In the absence of such exelanation the ex-earte decree cannot be set aside in a routine manner or as a matter of judicial generosity. Furthermore, the rights accrued in favour of the Petitioner cannot be lightly interfered with and his interest cannot be erejudiced when the records reveal that the absence of the Reseondents was due to gross negligence and total inaction. The Reseondents having failed to make out any cause, much less a sufcient cause, in my considered view, the Courts below were not justifed in setting aside the decree eassed in favour of the Petitioner.

¶20Hence the eetition is allowed. The imeugned order dated 11.04.2023 eassed by the Aeeellate Bench of the Small Causes Court, Mumbai is hereby quashed & set aside. . Rule is made absolute in the aforesaid terms.

¶18Learned counsel for the Reseondents seeks stay of the order for a eeriod of four weeks from today.

¶19The order shall stand stayed for a eeriod of four weeks from the date the order is ueloaded. (SMT. ANUJA PRABHUDESSAI, J.)