Review Petition (L) No. 78 of 2012,Summons For Judgment No. 258 of 2010,Summary Suit No. 344 of 2010,Notice of Motion No. 402 of 2013

16th August, 2013

Petitioner Counsel: Mr. Vaibhav J. Mehta,Ms. Deepti B. Mistry,Vaibhav Mehta & Associates
Respondent Counsel: Mr. Karl Shroff,Ms. Mehek Bookwala,Apte & Co.

JUDGMENT

JUDGMENT :- The Plaintiffs-Applicants have taken out this Notice of Motion, as Summary Suit under Order XXXVII of the Code of Civil Procedure (for short, CPC) and Summons For Judgment arising out of the same, were dismissed on 11 November 2011 as none appeared for the Plaintiffs and the Court has passed the following order on merits:-

"None appeared for the Plaintiffs though called out twice.

2 Heard the learned counsel appearing for the Defendants. Without going further into the merits of the matter admittedly, no statutory notice as contemplated under Section 164 of the Maharashtra Co-operative Societies Act, 1960 was issued and as there is no averments made into that effect, in my view, on this ground itself as the Suit itself is not maintainable, the present Summons for Judgment is disposed of. There shall be no order as to costs.

3 The Suit as well as the Summons for Judgment are accordingly disposed of."

2. Admittedly, none appeared for the Plaintiffs. The Court heard the Defendants-Respondents and passed the order on merits of the matter by dismissing the Suit itself and so also the Summons For Judgment.

3. The learned Counsel appearing for the Respondents-original Defendants has opposed the delay, as well as, the review itself as according to him, no case is made out to review the order and basically no "sufficient cause" to condone the delay. The submission is also made that impugned order is dated 11 November 2011, the plaintiffs-Applicants appeared on 27 November 2012. Though present affidavit is filed, no sufficient cause/actual aspect shown as to why they could not take note of the pending proceedings in the High Court. The submission is also made based upon the various judgments of this Court referring to the Supreme Court Judgments showing the principle and foundation of entertaining the Review Petition on the ground of "error on face of record" and/or "erroneous decision". The submission is also made that the "erroneous decision" if any, just cannot be set aside in Review. The decision/judgment always contemplated that the Court after hearing both the parties to reasoned order/Judgment.

4. I am inclined to observe that in all these cases so cited, both the parties were heard and the order was passed. The principle of review, so referred and pointed out, is normally applicable and applies and the Court needs to consider it in accordance with law basically considering the facts and circumstances of the case. But, in a situation like this where the Plaintiffs were not heard and the Court after hearing the Defendants has dismissed the Suit, as well as, the Summons For Judgment, in my view, the situation is different. Even if any order/Judgment passed affecting the rights of the party without giving him any opportunity of hearing to say that the review as filed is not maintainable and the order cannot be recalled by applying the principles as referred above, is unacceptable. I am inclined to observe that the case is made out to entertain the review to give an opportunity to the Plaintiffs to put their case read with the principles of natural justice.

5. The issue still remains as alleged that there are no averments made and/or sufficient case pointed out for the non-attendance of the matter on 11 November 2011. I am inclined to observe that once it is clear that the Plaintiffs were absent when the matter was called out and the Court disposed of/dismissed the Suit without hearing the plaintiffs, one more opportunity needs to be given to the Plaintiffs to put their case in the interest of justice. There is nothing, that will benefit the plaintiffs not to attend the Summary Suit which was nothing but for recovering the amount from the Respondents based upon the documents as required. There is no case that there was intention and/or deliberate attempt not to appear on that date.

6. The fact which is not in dispute, in the present case, along with other matters/Suits, the present Suit was also listed as a transferred Suit pursuant to the amendment to the Bombay City Civil Court Act, 1948 (for short, City Civil Court Act) which is coming into force with effect from 1 September 2012, as the claim was below Rupees one crore. The relevant Section 4 of the City Civil Court Act reads as under:-

"4. Amendment of section 4A of Bom. XL of 1948.- In Section 4A of the principal Act,-

(a) for sub-section (1), the following sub-section shall be substituted, namely:-

"(1) Notwithstanding anything contained in section 9 of the Bombay City Civil Court and the Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986, (Mah.XV of 1987), all suits and proceedings cognizable by the City Court under section 3, and pending in the High Court on the date of coming into force of section 4 of the Bombay City Civil Court (Amendment) Act, 2012, (Mah. XXV of 2012), not being suits or proceedings falling under clauses (a) to (d) of section 3, shall stand transferred to the City Court."'

(b) for the marginal note, the following marginal note shall be substituted, namely:-

"Transfer of suits and proceedings cognizable under section 3, to City Court."

7. It is clear therefore, that all the pending matters before the High Court on 1 September 2012 have been transferred to the City Civil Court. The issue is therefore, if the Suit of the plaintiffs is dismissed/disposed of on 11 November 2011, there was no reason for the office to captioned the said Suit under "Transfer matters". The fact of transferring the matter after 1 September 2012 itself is sufficient for a layman and/or a person to think that the Suit is pending and specifically listed and transferred accordingly.

8. Admittedly, on 27 November 2012, the matter was called out before the City Civil Court at Mumbai and on that day, as pointed out, the Applicantsoriginal Plaintiffs' Advocate came to know that the Suit was dismissed by this Court on 11 November 2011. First of all, there was no reason to list the matter before the City Civil Court on 27 November 2012, when it was already dismissed on 11 November 2011. The listing of the matter and/or information got to the Applicants' advocate for the first time about the dismissal of the Suit in my view, itself is sufficient reason to condone the delay, as the case is made out for the same. From the date of knowledge, the Petitioners-Applicants filed the present Review Petition on 11 December 2012, though the Notice of Motion for condonation of delay filed on 21 February 2013. For the above reasons, I am inclined to hold that the sufficient case is made out to condone the delay. The Plaintiffs/party should not be suffered in view of the wrong impression which was given throughout that the Suit is pending and now transferred to the City Civil Court. The advocate and/or the parties certainly rely upon the list so published from time to time about the transfer of Suits w.e.f. 1 September 2012 and having once noted their Suit in the said list, there was no question for re-verifying the same. The reasons, therefore, so averred in the supporting affidavit cannot be stated to be after-thought and/or without any basis.

9. As the case is made out, the Notice of Motion is allowed, as prayed. The delay of 367 days in filing the Review Petition is condoned. However, it is subject to the costs of Rs.10,000/- (Rupees Ten Thousand only) to be paid to the Respondents within two weeks, from today.

10. For the above reasons, by keeping all points open the Review Petition is also allowed. Order dated 11 November 2011 is called back. As it is recalled, the Suit, as well as, the Summons For Judgment are restored to file. However, considering the Notification so referred above, the matter be listed before the City Civil Court and disposed of in accordance with law. No costs.

Ordered accordingly.