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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

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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                                                    40-WP11292-2026.DOC

(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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