Appeal No. 319 of 2014 from Notice of Motion No. 1282 of 2013 from Suit No. 3969 of 1996. Case: 1. Bharat Babulal Makwana, 2. Suresh Babulal Makwana, (Deceased), 3. Raju Babulal Makwana Vs 1. Narottam V. Sheth, 2. Divyesh Narottam Sheth. High Court of Bombay (India)
| Case Number | Appeal No. 319 of 2014 from Notice of Motion No. 1282 of 2013 from Suit No. 3969 of 1996 |
| Counsel | For Appellant: Mr. M. Khandeparkar, Adv. and For Respondents: Mr. Bhave, Adv. |
| Judges | S. J. Vazifdar & Revati Mohite Dere, JJ. |
| Issue | Bombay City Civil Court (Amendment) Act, 2012 - Sections 4A, 4B |
| Judgement Date | September 25, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
Revati Mohite Dere, J.
-
This appeal is directed against the order of the learned Single Judge, allowing the respondents' notice of motion, by condoning the delay and restoring the suit, which was dismissed for default.
-
The principal grievance raised by the appellant is that the learned Single Judge had no jurisdiction to entertain the notice of motion and pass the impugned order thereon. According to the appellant, the respondent ought to have filed the Notice of Motion in the Bombay City Civil Court in view of the Section 4A of the Bombay City Civil Court (Amendment) Act, 2012 and the Notification dated 5th September, 2012. The appellants have also challenged the exercise of jurisdiction by the learned Judge in restoring the suit which had been dismissed for default.
-
The suit was filed by Smt. Rasikmani Narottam Sheth -- original plaintiff seeking damages and other consequential reliefs of injunction in the year 1996. The original plaintiff died on 11th September, 2012. On 25th June, 2003, the suit was placed for directions before the Prothonotary and Senior Master. As there was no appearance for the plaintiff, the suit was placed for dismissal after a week. The matter was again placed on 2nd July, 2003 for directions before the Prothonotary and Senior Master. On the said date too, there was no appearance for the plaintiff. Hence, the Prothonotary and Senior Master dismissed the suit for default vide order dated 2nd July, 2003.
-
It was contended by the respondents in the affidavit in support of the notice of motion seeking restoration of the suit that they diligently took steps to contact Smt. Rasikmani Sheth's Advocate, but were unsuccessful and learnt that the Advocate had left practice and therefore, they approached the present advocates on 2nd April, 2013 and briefed them about the aforesaid facts. It was stated that, thereafter, the Advocates perused the records and learnt that the suit was dismissed for default vide order dated 2nd July, 2003 by the Prothonotary and Senior Master. Accordingly, the respondents on being made aware of the order dated 2nd July, 2003 immediately applied for a certified copy of the said order and filed the Notice of Motion along with an affidavit in support thereof, seeking condonation of delay and restoration of the suit.
-
We are inclined to accept the respondents' contention that they were under a bonafide belief that the suit was pending. In fact, even the appellants were under this impression. In the above suit, Notice of Motion No. 3341 of 1996 was taken out by the original plaintiff seeking certain reliefs therein. Vide order dated 15th July, 1998, the appellants/defendants were directed to pay compensation of Rs.3,000/- per month from 20th February, 1996 till the date of the order and also subsequent thereto. This is evidenced by the fact that the appellants/defendants had continued to pay the rent to the respondents at the rate of Rs. 3,000/- per month as per the order dated 15th July, 1998. Had the appellants been aware about the dismissal of the suit, they would never have continued making the payments. The delay was due to inadvertence, as the respondents were unaware about the status of the suit. The learned Judge, therefore...
To continue reading
Request your trial