http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: VIJAYKUMAR DURGAPRASAD GAJBI & ORS.

       Vs.

RESPONDENT: KAMLABAI & ORS.

DATE OF JUDGMENT24/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  (6) 148        JT 1995 (6)   329  1995 SCALE  (5)140

ACT:

HEADNOTE:

JUDGMENT:                       O R D E R      Notice on the respondents 1, 2, 4, and 6 to 8 have been served. The  dasti service on respondents 3 and 5 shows that they  have  received  the  notices.  Postal  endorsement  on notices,  when   sent  through   Court  were  returned  with endorsements ’left, not known’. Since dasti service has been served on  them, notices  now are  served on all respondents but none is appearing for them nor they appear in person.      Leave granted.      This appeal  by special  leave arises  from  the  order dated March  10, 1993  of the  High Court  of Bombay. Nagpur Bench, in  C.R.A. No. 572 of 1992. From the record, it would appear that  one Ishwar Das Gajbi filed Civil Suit No. 89 of 1985 after  Civil Suit  No.  82/1983  for  eviction  of  the appellants was  filed. When  the suits  were  part-heard  on February 20, 1992, the counsel for the appellant reported no instructions under  exhibit 116. Consequently, they were set ex-parte. They filed application Order 9 Rule 13, CPC to set aside the ex-parte order, which the trial court dismissed by order April 27, 1992. On revision, it was confirmed.      Shri  Sanghi,   learned  counsel  for  the  appellants, contended that  the appellants  were diligent in prosecuting the suits. The counsel had wrongly reported no instructions. There was  no delay  on their  part. The  appellants  had  a strong case  on merits.  Therefore, they  are entitled to be heard by setting aside the ex-parte order against them.      The question  is  whether  the  appellants  have  given proper explanation  for their  failure to  appear before the Court on  February 20,  1992. Though  Shri Sanghi  contended that all  through they  were diligent  and  it  was  at  the instance of  the plaintiffs  that the  suits were dragged on and  that,   therefore,  no  blame  could  be  laid  on  the appellants’ door,  unfortunately, no  material was placed on the record  either in  the trial court or in the High Court, much less  in this  Court, to show that they were diligently

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

prosecuting the  suits. On  the other  hand, the trial court recorded that  the appellants, being in actual possession of the suit  property, were  intending to  prolong the  matter. There is  no  bona  fides  or  genuineness  for  their  non- appearance on February 20, 1992. It is then stated thus :      "It   is   also   important   that   the      defendants are  indulging in  all  sense      and spirits  to protract and prolong the      progress of  the suit,  when it is filed      in 1983  near about  9 years  have  been      lapsed, but  no progress could have been      achieved so far. The defendants no. 1 to      5 cannot be allowed to take advantage of      their own wrong and they have absolutely      no bonafide  to come  before  the  Court      with a  case for  permission to  contest      the present  suit claim. In other words,      the  defendants  No.  1  to  5  are  not      diligent in  contesting the  suit  claim      and that,  resulted into  prolonging the      suit and its decision. The suit is part-      heard since last more than 3 years."      On these  findings, the  trial court  declined to allow the application  to set  aside the  ex-parte order. The High Court, having  had  the  discretion,  was  not  inclined  to interfere with the matter under Section 115, CPC.      The question  is whether  this is  a fit cases for this Court to interfere under Article 136 of the Constitution. In view of the categorical finding recorded by the trial court, we think  that it  is not  an appropriate  case  for  us  to interdict and  put the  clock back  to further  prolong  the matter.      The appeal is accordingly dismissed. No costs.