Bombay High Court
ABDULLA N MERCHANTversusPRAKASH LAXMAN CHANDERKAR AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The High Court allowed the petition, quashed the impugned orders and set aside the forfeiture orders, subject to conditions.
Summary
The petition under Article 227 challenged a City Civil Court order that had dismissed the defendant’s cross‑examination and forfeited his right to adduce evidence in a Specific Relief suit for possession. The lower court had rejected the defendant’s notice of motion seeking recall of those orders, finding him undiligent and blaming his health excuses. The High Court noted the defendant’s serious illness and that of his former advocate, and held that a justice‑oriented approach required granting an opportunity to defend. It quashed the impugned orders and set aside the forfeiture orders, subject to conditions on costs, cross‑examination and evidence production, and directed the trial court to conclude the suit expeditiously. The petition was allowed.
Issues considered
- Whether the lower court erred in refusing to set aside the orders forfeiting the defendant’s right to cross‑examine and adduce evidence
- Whether the defendant’s health and the illness of his former advocate constitute sufficient cause to condone the delay and recall the orders
- Whether the High Court has jurisdiction under Article 227 to intervene in the civil suit proceedings
- Whether costs and procedural directions imposed by the High Court are appropriate
Legislation cited
- Specific Relief Act, 1963 — s. 6
Subjects
- Article 227
- Specific Relief Act
- forfeiture of right to cross‑examine
- notice of motion
- Civil Procedure
- judicial discretion
- health‑related delay
- costs
- expeditious trial
Judgment
40-WP11292-2026.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11292 OF 2026
Abdulla N Merchant ...Petitioner
Versus
Prakash Laxman Chanderkar And Ors …Respondents
Mr. Sagar Shahani, a/w Ravi Kant Purohit, for the Petitioner.
SANTOSH Mr. Rakesh Agrawal, a/w Pallak Ranawat, for Respondent No.1.
SUBHASH
KULKARNI
Digitally signed by
SANTOSH SUBHASH
CORAM: N. J. JAMADAR, J.
KULKARNI
Date: 2026.09.28
10:52:33 +0530
DATED: 22nd SEPTEMBER, 2026
ORDER:-
1. Heard the learned Counsel for the parties.
2. This petition under Article 227 of the Constitution of India
calls in question the legality, propriety and correctness of an
order dated 10th June, 2026 passed by the learned Judge, City
Civil Court, in Notice of Motion No. 4226 of 2024 in S.C. Suit
No. 385 of 2013, whereby the said Notice of Motion preferred by
the petitioner to set aside the orders dated 24 th November, 2023
and 7th March, 2024, whereby “no cross-examination” and
forfeiture of the right of the defendant to adduce evidence,
respectively, came to be rejected.
3. The respondent No. 1 had instituted S.C. Suit No. 385 of
2013 for regaining possession of the subject premises under
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Section 6 of the Specific Relief Act, 1963. The respondent No. 1
claimed that he was illegally dispossessed of the subject
premises on or about 14 th July, 2012. The petitioner contested
this suit. Issues were settled on 23rd August, 2018.
4. It appears that, the petitioner-defendant did not diligently
defend the suit. Thus noting that, the plaintiff had filed an
affidavit in lieu of examination-in-chief in the year 2018 and the
defendant did not turn up to cross-examine the plaintiff, by an
order dated 24th November, 2023, the plaintiff was discharged
without cross-examination. Yet, the defendant persistently
remained absent. Thus by a further order dated 7 th March,
2024, the learned Judge forfeited the right of the defendant to
adduce evidence in his defence.
5. The defendant took out Notice of Motion No. 4226 of 2024
seeking to recall the aforesaid orders. In the affidavit in support
of the Notice of Motion, it was, inter alia, asserted that the
defendant could not cross-examine the plaintiff and adduce
evidence as, in the intervening period, the erstwhile Advocate of
defendant No. 1 was unwell and the defendant had also
undergone a bypass surgery. The defendant, being 69 years of
age, was dependent upon the legal advice and assistance
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rendered by erstwhile Advocate. Therefore, the defendant be
provided an opportunity of hearing to defend the suit.
6. The respondent-plaintiff opposed the prayer in Notice of
Motion by filing an affidavit-in-reply.
7. By the impugned order, the learned Judge, City Civil
Court, was persuaded to reject the Notice of Motion opining,
inter alia, that the defendant was not diligent in defending the
suit, and attempted to wriggle out of the situation by laying the
blame at the doorstep of his erstwhile Advocate. The learned
Judge did not find the reasons ascribed by the defendant to
recall the earlier orders satisfactorily.
8. Mr. Shahani, the learned Counsel for the petitioner,
submitted that the learned Judge, City Civil Court, took a very
rigid view of the matter. The fact that both the defendant No.1
and his Advocate were suffering from serious ailments was
rather indisputable. In any event, having regard to the situation
in the life of the defendant, the orders forfeiting the right to
cross-examine the plaintiff and adduce the evidence ought to
have been recalled and an opportunity to defend the suit ought
to have been given to the petitioner.
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9. Mr. Rakesh Agarwal, the learned Counsel for the
respondent No.1-plaintiff, countered the submissions on behalf
of the petitioner. It was urged that no cause much less a
justifiable one to recall the orders was made out. Taking the
Court through the affidavit in support of the Notice of Motion
Mr. Agrawal would urge that the assertions in the affidavit were
as vague as they could be. Even there was no prayer for
condonation of delay in taking out the Notice of Motion. In view
of such casual and callous approach of the defendant, the
learned Judge, City Civil Court, was justified in rejecting the
application to recall the earlier orders.
10. Undoubtedly, there is an element of delay, inadvertence
and indolence on the part of the defendant. It appears the
plaintiff had filed the affidavit in lieu of examination-in-chief in
the year 2018 itself. It could not be controverted that the
sufficient opportunity was not given to the defendant. However,
having regard to the situation in the life of the defendant, who
claimed to have undergone bypass surgery in the month of
February 2022, the causes ascribed for not appearing before the
Court to conduct the cross-examination and lead evidence in
defence ought to have been construed with a justice-oriented
approach. There is a positive assertion that the erstwhile
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Advocate of the defendant was also suffering from serious
illness.
11. It could be urged that, the illness of the defendant and his
erstwhile Advocate does not satisfactorily account for the entire
length of inaction on the part of the defendant. However, The
overarching principle of promoting the determination of the lis
on merit by providing an efficacious opportunity of hearing
ought to infirm the decision.
12. In the aforesaid view of the matter, this Court, in the
peculiar facts of the case, is inclined to provide an opportunity
to the petitioner to defend the suit. At the same time, having
regard to the age of the plaintiff and the pendency of the suit,
the defendant is required to be put to terms as to costs and the
time for cross-examination and adducing evidence in defence.
Hence, the petition deserves to be allowed.
13. Hence, the following order:
:ORDER:
(i) The petition stands allowed.
(ii) The impugned order stands quashed and set aside.
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(iii) The orders dated 24th November, 2023 and 7th March,
2024, forfeiting the right of cross-examination of the
plaintiff and adducing the evidence in defence also stand
quashed and set aside, subject to the following conditions:
(a) The petitioner-defendant shall pay costs of Rs.25,000/- to
the plaintiff-respondent within a period of three weeks
from the date of uploading of this order.
(b) The petitioner-defendant shall cross-examine the plaintiff's
witness(es) on the next scheduled date and, thereafter, if
required, without seeking any adjournment.
(c) After the cross-examination of the plaintiff's witness(es) is
concluded, the defendant shall adduce his evidence within
a period of four weeks.
(iv) The learned Judge, City Civil Court, seized with S.C. Suit
No.385/2013, is requested to conclude the trial in the
said suit as expeditiously as possible.
(v) The petition stands disposed.
[N. J. JAMADAR, J.]
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