VIJAYKUMAR DURGAPRASAD GAJBI AND ORS versus KAMLABAI AND ORS.

Citation: [1995] SUPP. 3 S.C.R. 39 · Decided: 24-08-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Dismissed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

~> 
VI.TA YKUMAR DURGAPRASAD GAJBI AND ORS. 
A 
v. 
KAMLABAI AND ORS. 
AUGUST 24, 1995 
[K. RAMASWAMY AND B.L. HANSARIA, JJ.) 
B 
Constitution of India, 1950 : A1ticle 136 
Ex-pane orde1~Appeal for setting aside-Categ01ical findings by Couns 
below that appellants were not diligent in contesting the suit-4leld no inter- c 
f erence was called for. 
Code of Civil Procedure, 1908 : Order 9-R.ule 13, Sections 114 and 
115. 
Suit-Defendants-Non-appearance--Ex-parte orders against-No D 
bona ft.des for non-appearance-Refusal to set aside ex-pane orders-Held 
Justified. 
The appellant-defendants failed to appear before the trial Court 
when the suits were part-heard on February 20, 1992. The appellant's 
counsel reported on instructions and consequently ex-parte orderswas E 
passed against them. The appellants filed an application under Order 9 
Rule 13 to set aside the ex-parte orders. The trial Court recorded its 
finding that the appellants, being in actual possession of the suit property, 
were intending to prolong the matter and there was no bona ft.des or 
genuineness for their non-appearance. Consequently it declined to allow F 
the application to set aside the ex-parte orders. The High Court refused 
to interfere with the matters under section 115 of the CPC. Hence this 
appeal. 
Dismissing the appeal, this Court 
HELD: No material was placed on the record either in the trial court G 
or in the High Court, much less in this Court, to show that the appellants 
~ 
were diligently prosecuting the suits. In view of the categorical finding 
recorded by the trial court that there was no bona fide or genuineness for 
appellants' non-appearance, it is not an appropriate case for this Court 
to interfere under Article 136 of the Constitution and put the clock back H 
39 
40 
r-
SUPREME COURT REPORTS f1995) SUPP. 3 S.C.R. 
A 
to further prolong the matter. [41-A-B] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7866 of 
1995. 
From the .Judgment and Order dated 10.3.93 of the Bombay High 
B 
Court in C.R.A. No. 572 of 1992. 
c 
D 
E 
F 
AK. Sanghi for the Appellants. 
The following Order of the Court was delivered: 
Not.ice 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 
notice. 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 dated 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 
G 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 
H · instance of the plaintiffs that the suits were dragged on and that, therefore, 
.. > 
.... 
V.D. GATBI v. KAMLABAI 
41 
no blame could be laid on the appellants' door, unfortunately, no material A 
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 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 protr
Excerpt shown. Read the full judgment & AI analysis in Lexace.