Case Note & Summary
The petitioners, Umar Abdul Majid Khan (original tenant) and Abdul Malik Shaikh (alleged sub-tenant), filed a writ petition challenging the orders of the trial court and appellate court refusing to set aside an ex parte decree passed against them in a suit for eviction filed by the respondents-landlords, Parvez Nariman Dhatigara and Eric Nariman Dhatigara. The landlords had sued the tenants in October 2010 on grounds of subletting and arrears of rent. The tenants were served in November 2010, and an advocate appeared on their behalf in November 2011 but failed to file a vakalatnama or appear subsequently. Consequently, the trial court decreed the suit ex parte in July 2012. In September 2012, the tenants applied under Order 9 Rule 13 CPC to set aside the decree, along with a delay condonation application under Section 5 of the Limitation Act for a 34-day delay. The trial court dismissed the delay condonation application in October 2013, but the High Court in Writ Petition No.1189 of 2013 condoned the delay in March 2014. Thereafter, the trial court heard the application under Order 9 Rule 13 and dismissed it in August 2016, holding that the tenants had not shown sufficient cause. The appellate court affirmed this in April 2018. The tenants then filed the present writ petition. The High Court observed that the tenants had been diligent: they engaged a counsel promptly, but the counsel failed to act. The court held that the tenants should not suffer for the counsel's negligence. The court also noted that the landlords had not opposed the delay condonation earlier. Allowing the petition, the High Court set aside the ex parte decree and restored the suit to the trial court for fresh disposal, directing the tenants to pay costs of Rs. 10,000 to the landlords.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Order 9 Rule 13 CPC - Sufficient Cause - The tenants, after being served, engaged a counsel who failed to file a vakalatnama or appear, leading to an ex parte decree. The court held that the tenants were diligent and the failure of their counsel should not prejudice them. The trial court's refusal to set aside the decree was set aside, and the ex parte decree was quashed. (Paras 2-10)
B) Limitation - Delay Condonation - Section 5 of Limitation Act, 1963 - The delay of 34 days in filing the application under Order 9 Rule 13 was condoned by the High Court in an earlier writ petition. The trial court's dismissal of the delay condonation application was reversed, and the matter was remanded for fresh consideration of the application to set aside the ex parte decree. (Paras 4-5)
Issue of Consideration
Whether the trial court and appellate court erred in refusing to set aside the ex parte decree despite the tenants showing sufficient cause for their non-appearance, and whether the delay in filing the application was properly condoned.
Final Decision
The High Court allowed the writ petition, set aside the orders of the trial court and appellate court, and set aside the ex parte decree. The suit was restored to the file of the trial court for fresh disposal. The petitioners were directed to pay costs of Rs. 10,000 to the respondents.
Law Points
- Ex parte decree
- setting aside
- sufficient cause
- Order 9 Rule 13 CPC
- Limitation Act Section 5
- delay condonation
- duty of counsel
- litigant's diligence
Case Details
2019 LawText (BOM) (08) 63
Writ Petition No. 7213 of 2018
Mr. Rajesh S. Datar for the petitioner; Mr. Santosh S. Kyadiguppi i/b. Ms. Smita Kalhe & Ms. Sheetal Mhatre for respondent nos.1 and 2
Umar Abdul Majid Khan and Abdul Malik Shaikh
Parvez Nariman Dhatigara and Eric Nariman Dhatigara
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Nature of Litigation
Civil writ petition challenging orders refusing to set aside an ex parte decree in an eviction suit.
Remedy Sought
The petitioners (tenants) sought to set aside the ex parte decree and restore the suit for trial.
Filing Reason
The trial court and appellate court refused to set aside the ex parte decree despite the tenants showing sufficient cause for their non-appearance.
Previous Decisions
The trial court dismissed the delay condonation application (October 2013), but the High Court condoned the delay (March 2014). The trial court then dismissed the application under Order 9 Rule 13 (August 2016), and the appellate court affirmed (April 2018).
Issues
Whether the tenants had sufficient cause for their non-appearance to set aside the ex parte decree under Order 9 Rule 13 CPC.
Whether the delay in filing the application under Order 9 Rule 13 was properly condoned.
Submissions/Arguments
Petitioners argued that they were diligent: they engaged a counsel promptly, but the counsel failed to file a vakalatnama or appear, which should not prejudice them.
Respondents argued that the tenants were negligent and failed to show sufficient cause.
Ratio Decidendi
A litigant should not suffer for the negligence of his counsel. If the litigant has been diligent in engaging a counsel and the counsel fails to appear or file necessary documents, the litigant has sufficient cause for non-appearance, and the ex parte decree should be set aside under Order 9 Rule 13 CPC.
Judgment Excerpts
The 1st petitioner is the original tenant, and the 2nd petitioner the alleged sub-tenant.
In October 2010, the landlords sued the tenants on the grounds of subletting and arrears of rent.
The tenants were served the suit summons in November 2010.
Later, on 26th November 2011, an advocate appeared before the trial Court and undertook to file a vakalatnama for the tenants. But he did not file any.
In July 2012, the trial Court decreed the suit ex parte.
Then, on 25th September 2012, the tenants applied under Order 9 Rule 13 to have the ex parte decree set aside.
The trial Court first took up the delay condonation application and dismissed it in October 2013.
This Court, through its order dated 5th March 2014, allowed the writ petition: it condoned the delay.
The trial Court, through its order dated 23rd August 2016, refused to set aside the ex parte decree.
The Appellate Court, too, through its order dated 3rd April 2018, refused to interfere.
Procedural History
The landlords filed a suit in October 2010. The tenants were served in November 2010. An advocate appeared in November 2011 but did not file a vakalatnama. The suit was decreed ex parte in July 2012. The tenants filed an application under Order 9 Rule 13 in September 2012 with a delay condonation application. The trial court dismissed the delay condonation in October 2013. The High Court condoned the delay in March 2014. The trial court dismissed the Order 9 Rule 13 application in August 2016. The appellate court affirmed in April 2018. The tenants filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 9 Rule 13
- Limitation Act, 1963: Section 5
