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2009 DIGILAW 1158 (BOM)

Ritinha Marques v. Manda Sadanand Shetty

2009-09-09

A.H.JOSHI

body2009
JUDGMENT A.H. Joshi, J.–Appellants herein were the plaintiffs in Special Civil Suit no. 78/96. The said suit was dismissed for want of prosecution. 2. The present appellants filed an. application for restoration of suit in which they averred the facts as follows : (i) The deceased plaintiff had suffered a stroke in the month of January, 1998 after which she was bed ridden and was confined to the house. (ii) The plaintiff was also suffering from high blood pressure, heart problems etc. (iii) Though the plaintiff had received the notice dated 2.6.1998 from her lawyer informing her about his intention to withdraw from the matter she was unable to engage another lawyer due to her ill health. (iv) Because of these reasons, the plaintiff did not appear before this Hon'ble Court on 3.11.1998 on which day the suit was dismissed for default. 3. The appellants placed reliance on the medical certificate as to sickness of Smt. Ritinha Marques. 4. They had also filed application for condonation of delay along with the application for setting aside ex-parte order explaining reasons. 5. The respondents herein opposed the application for condonation of delay. 6. The fact of sickness of the original plaintiff and truthfulness of the medical certificate is not disputed. 7. Admittedly, the case proceeded on the basis of affidavit. 8. The respondents did not apply for cross-examination of the appellants for testing veracity and truthfulness of the version relating to the sickness of the original plaintiff as well as appellants sickness and delay caused after the death of original plaintiff in filing the application for restoration. 9. While opposing the present appeal, the respondents have placed reliance on reported judgment in 2009 (3) ALL MR 474 in Katari Suryanarayana & Ors. v. Koppisetti Subba Rao & Ors. 10. This Court has perused the said judgment of Hon'ble Apex Court. On facts the case before the Hon'ble Supreme Court, the party was taking shelter of Rule 10-A of Order 22 CPC towards its failure to apply for bringing legal heirs of opponent in time. The intimation of death by Rule 10-A aforesaid was not given and therefore the petitioner tried to justify failure to bring legal heirs on record in time. 11. On facts Hon'ble Supreme Court found that the parties were next door neighbours and ignorance about fact of death could not have been pleaded. The intimation of death by Rule 10-A aforesaid was not given and therefore the petitioner tried to justify failure to bring legal heirs on record in time. 11. On facts Hon'ble Supreme Court found that the parties were next door neighbours and ignorance about fact of death could not have been pleaded. The Hon'ble Supreme Court therefore recorded that though ordinarily such applications are considered liberally, it should not be considered liberally in peculiar facts of said case before Hon'ble Supreme Court, and on facts held that no sufficient cause was made out. Moreover, cardinal principle that such applications should be considered liberally is' reiterated. 12. In the result, the judgment relied upon does not help the respondent in any manner whatsoever. 13. Now coming back to the facts of the case. In view that the affidavit of the appellants has gone unchallenged. The learned Trial Judge took a very rigid and technical view of the matter. Once the facts brought before the Court, those had gone unchallenged and even no cross-examination of applicant was conducted, the case at hand was liable to be dealt with liberally. 14. The application for condonation of delay and application for setting aside ex-parte order, both being filed on the same facts and grounds, which have gone unchallenged and are satisfactory, both applications deserve to be allowed. 15. In the premises, this Court is satisfied that not only an application for condonation of delay be allowed that even application for setting aside ex-parte order also deserves to be allowed and are hereby allowed, and Special Civil Suit No. 78/1996/ A is restored. 16. In the circumstances, parties shall bear own costs. Parties are directed to appear before the Trial Court on 12.10.2009 and to proceed the heating of the suit. Appeal allowed.