I Have Appreciated The Aforesaid Submissions v. Munshilal & Anr Reported In 1981 Air 1400

BDP-SPS-TAC BHARATIN THE HIGH COURT OF JUDICATURE AT BOMBAYDASHARATHDASHARATHPANDITDigitally signed byBHARAT CIVIL APPELLATE JURISDICTION DASHARATHPANDITDASHARATHPANDITDate: 2022.03.3012:30:52 +0530WRIT PETITION NO.1878 OF 2022WITHINTERIM APPLICATION NO.3769 OF 2020WITHINTERIM APPLICATION NO.3769 OF 2020 Director of Income-Tax (Inv.) and Ors.… Petitioners V/s.Dinesh L. Salvi & Ors. … Respondents Mr. Anil C. Singh, Advocate General a/w Mr. Aditya Thakkar and Mr.Pranav Thakur i/by A.K. Saxena, Advocates for the Petitioners.Mr. Arun H. Mehta a/w Ms. Priyanka Pawar i/by Mr.Akshar Laws,Advocates for Respondent No.1(a), 2 and 3. CORAM: NITIN W. SAMBRE, J. DATE: MARCH 25, 2022 P.C.:- 1]Mr. Anil Singh, learned Additional Solicitor General of Indiaappears for the Petitioners and Mr. Arun Mehta, learned Counselappears for Respondents/decree holders. 2]The factual background necessary for deciding the presentPetition is as under:- 3]Summary suit came to be initiated by the Respondents/decree 38-wp-1878.22.doc holders against the Petitioners which was decreed on 18[th] March,2016. Since the decree passed was an ex parte decree, Notice ofMotion was taken out to set aside the same, which was dismissed on4[th] July, 2019 for default. For restoration of the said Notice of Motionfor setting aside ex parte decree, another Notice of Motion was takenout which was rejected vide impugned order dated 21[st] Feburary, 2021by the Ad-hoc Judge, City Civil Court, Greater Bombay. 4]Mr. Singh would urge that Petition is by Revenue, seekingrestoration of earlier Notice of Motion for setting aside ex parte decreeon the ground that on the date when the impugned order was passed,thereby dismissing the earlier Notice of Motion, there was heavy rainsand for personal reasons of the lawyer he was unable to attend thehearing of the said Notice of Motion. 5]While strenuously resisting the said claim, Mr Mehta wouldinvite attention of this Court to the pleadings in the present WritPetition, in support of his submission that hardly any grounds arementioned therein so as to establish the case for setting aside of the 38-wp-1878.22.doc impugned order. He would claim that there is an alternative remedyavailable to the Petitioners to approach the very same Court forrecalling the order. As such, he has sought dismissal of the Petition.Apart from above, he would claim that very conduct of the Petitionersdoes not call for exercising equitable powers of this Court in favour ofthe Petitioners, particularly when decree is a money decree. 6]I have appreciated the aforesaid submissions. 7]It appears that interest of the Respondents/decree holders isalready protected as 50% of the amount under the decree is alreadydeposited. Apart from above, if we consider the cause cited, in myopinion, default of a lawyer should not be considered to thedetriment of a litigant and in support of the said proposition, reliancecan be placed on the judgment of the Supreme Court in the matter ofRafiq & Anr vs Munshilal & Anr reported in 1981 AIR 1400. 8]In the backdrop of aforesaid observations, in my opinion,impugned order dated 21[st] February, 2020 calls for interference under 38-wp-1878.22.doc extraordinary jurisdiction. As such, impugned order dated 21[st]February, 2020 is hereby quashed and set aside. Notice of MotionNo.3211 of 2019 stands allowed, subject to payment of costs ofRs 5,000/- to be deposited before the City Civil Court, GreaterBombay within a period of six weeks from today, which theRespondents/decree holder shall be entitled to withdraw. 9] As such, Notice of Motion for setting aside ex parte decreestands restored to the file which be decided by the Court below inaccordance with law. 10]Petition is allowed in the aforesaid terms. As a consequence,Interim Application taken out therein does not survive and samestands disposed of. 38-wp-1878.22.doc extraordinary jurisdiction. As such, impugned order dated 21[st]February, 2020 is hereby quashed and set aside. Notice of MotionNo.3211 of 2019 stands allowed, subject to payment of costs ofRs 5,000/- to be deposited before the City Civil Court, GreaterBombay within a period of six weeks from today, which theRespondents/decree holder shall be entitled to withdraw. 9] As such, Notice of Motion for setting aside ex parte decreestands restored to the file which be decided by the Court below inaccordance with law. 10]Petition is allowed in the aforesaid terms. As a consequence,Interim Application taken out therein does not survive and samestands disposed of. 11]There shall be no coercive action for a period of 10 weeks fromtoday. However, this will not preclude the Petitioners from claiminginterim relief in the matter. (NITIN W. SAMBRE, J. )