Case Note & Summary
The petitioner, Smt. Taramati Bhagwandas Vithlani, is the owner of a chawl in Kurla, Mumbai. The first respondent was a tenant in Room No.238. The petitioner filed a suit for eviction on grounds of unlawful subletting, change of user, and nuisance. The writ of summons was served on the tenant, who sought several adjournments to file a written statement but never did. The Small Causes Court decreed the suit ex parte on 23 October 2002. A notice before execution was served on the tenant on 7 April 2003, and possession was handed over to the petitioner. On 21 April 2003, the tenant moved an application to set aside the ex parte decree, which was beyond the 30-day limitation period under Article 123 of the Limitation Act, 1963. The trial judge dismissed the application on 11 February 2004. The tenant appealed to the Appellate Bench of the Small Causes Court, which allowed the appeal on 24 March 2005 and directed restoration of possession to the tenant. The petitioner challenged this order by way of a writ petition. The High Court stayed the appellate order on 3 May 2005 and later directed final hearing. The High Court considered whether the tenant had shown sufficient cause for the delay in filing the application to set aside the ex parte decree. The tenant's only explanation was that he had engaged an advocate named Mr. Shinde, who assured him the matter was being taken care of, and that he met the advocate 4-5 times in 2002. The High Court found this explanation insufficient, noting that the tenant had taken multiple adjournments for filing a written statement but failed to do so, and that mere reliance on the advocate without any follow-up or inquiry does not constitute sufficient cause. The High Court held that the appellate bench erred in setting aside the ex parte decree and restoring possession. The writ petition was allowed, the appellate order was quashed and set aside, and the trial court's order dismissing the application was restored.
Headnote
A) Limitation Act - Article 123 - Ex parte decree - Setting aside - Sufficient cause - The tenant filed an application to set aside an ex parte eviction decree beyond the 30-day limitation period under Article 123 of the Limitation Act, 1963. The tenant claimed that his advocate had assured him the matter was being taken care of, but no written statement was filed. The trial court dismissed the application, but the appellate bench allowed it and directed restoration of possession. The High Court held that the tenant failed to show sufficient cause for the delay, as mere reliance on the advocate's assurance without any follow-up or inquiry does not constitute sufficient cause. The appellate bench's order was set aside. (Paras 5-8) B) Civil Procedure - Ex parte decree - Restoration of possession - The High Court held that once an ex parte decree is passed and possession is taken in execution, the court should not lightly set aside the decree unless the applicant makes out a strong case of sufficient cause for the delay. The tenant's explanation that he relied on his advocate was not sufficient, especially when the tenant had sought multiple adjournments for filing a written statement but failed to do so. (Paras 5-8)
Issue of Consideration
Whether the Appellate Bench of the Small Causes Court was justified in setting aside an ex parte decree and restoring possession to the tenant when the application for setting aside the decree was filed beyond the period of limitation prescribed under Article 123 of the Limitation Act, 1963, and the tenant failed to show sufficient cause for the delay.
Final Decision
The High Court allowed the writ petition, quashed and set aside the order of the Appellate Bench of the Small Causes Court dated 24 March 2005, and restored the order of the trial court dated 11 February 2004 dismissing the tenant's application to set aside the ex parte decree.
Law Points
- Limitation Act
- 1963
- Article 123
- Ex parte decree
- Setting aside
- Sufficient cause
- Advocate negligence
- Condonation of delay
