DIRECTOR OF INCOME TAX (INV) THR. SECRETARY, AND ORS vs. DINESH L. SALVI,( DELETED) THR.WIFE I-A) KISHORI DINESH SALVI AND ORS

WP/1878/2022HC BombayHCBM01010571202025 March 2022Bench: HON'BLE SHRI JUSTICE NITIN W. SAMBRE4 pages

AI SummaryAllowed

What did the High Court hold?

The High Court held that the impugned order dated February 21, 2020, warrants interference under its extraordinary jurisdiction. The Court reasoned that a lawyer's default should not be detrimental to a litigant, citing the Supreme Court judgment in Rafiq & Anr vs Munshilal & Anr. The Court noted that the interest of the Respondents/decree holders is protected as 50% of the decree amount has already been deposited. Consequently, the impugned order was quashed and set aside. Notice of Motion No. 3211 of 2019 was allowed, subject to the Petitioners depositing costs of Rs. 5,000/- within six weeks, which the Respondents shall be entitled to withdraw. The Notice of Motion for setting aside the ex parte decree stands restored to the file for decision by the Court below. No coercive action will be taken for 10 weeks, but this does not preclude the Petitioners from claiming interim relief.

What were the facts?

The Petitioners, Director of Income-Tax (Inv.) and Ors. (Revenue), are challenging an order dated February 21, 2021, passed by the Ad-hoc Judge, City Civil Court, Greater Bombay. This order rejected the Revenue's Notice of Motion seeking restoration of an earlier Notice of Motion that was dismissed for default on July 4, 2019. The earlier Notice of Motion was taken out to set aside an ex parte decree passed on March 18, 2016, in a summary suit initiated by the Respondents/decree holders, Dinesh L. Salvi & Ors. The Revenue's plea for restoration was based on the ground that their lawyer was unable to attend the hearing due to heavy rains and personal reasons.

What were the issues?

1. Whether the Petitioners (Revenue) have established sufficient grounds to warrant the setting aside of the impugned order dated February 21, 2021, which rejected their Notice of Motion for restoration of an earlier Notice of Motion to set aside an ex parte decree. Assessee's Contention: The Petition is by the Revenue seeking restoration of an earlier Notice of Motion to set aside an ex parte decree. The ground for restoration is that on the date the impugned order was passed, there were heavy rains, and personal reasons prevented the lawyer from attending the hearing of the said Notice of Motion. Revenue's Contention: The Respondents/decree holders argue that the Writ Petition lacks sufficient grounds to establish a case for setting aside the impugned order. They contend that an alternative remedy is available to the Petitioners to approach the same Court for recalling the order. Furthermore, they argue that the conduct of the Petitioners does not warrant the exercise of equitable powers by the Court, especially since the decree is a money decree.

AI-generated summary — verify with the full judgment below

38-wp-1878.22.doc BDP-SPS-TAC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1878 OF 2022 WITH INTERIM APPLICATION NO.3769 OF 2020 Director of Income-Tax (Inv.) and Ors. … Petitioners V/s. Dinesh L. Salvi & Ors. … Respondents Mr. Anil C. Singh, Advocate General a/w Mr. Aditya Thakkar and Mr. Pranav Thakur i/by A.K. Saxena, Advocates for the Petitioners. Mr. Arun H. Mehta a/w Ms. Priyanka Pawar i/by Mr.Akshar Laws, Advocates for Respondent No.1(a), 2 and 3. CORAM: NITIN W. SAMBRE, J.

DATE: MARCH 25, 2022 P.C.:- 1] Mr. Anil Singh, learned Additional Solicitor General of India appears for the Petitioners and Mr. Arun Mehta, learned Counsel appears for Respondents/decree holders. 2] The factual background necessary for deciding the present Petition is as under:- 3] Summary suit came to be initiated by the Respondents/decree 1/4 BHARAT DASHARATH PANDIT Digitally signed by BHARAT DASHARATH PANDIT Date: 2022.03.30 12:30:52 +0530

38-wp-1878.22.doc holders against the Petitioners which was decreed on 18th March, 2016. Since the decree passed was an ex parte decree, Notice of Motion was taken out to set aside the same, which was dismissed on 4th July, 2019 for default. For restoration of the said Notice of Motion for setting aside ex parte decree, another Notice of Motion was taken out which was rejected vide impugned order dated 21st Feburary, 2021 by the Ad-hoc Judge, City Civil Court, Greater Bombay. 4] Mr. Singh would urge that Petition is by Revenue, seeking restoration of earlier Notice of Motion for setting aside ex parte decree on the ground that on the date when the impugned order was passed, thereby dismissing the earlier Notice of Motion, there was heavy rains and for personal reasons of the lawyer he was unable to attend the hearing of the said Notice of Motion. 5] While strenuously resisting the said claim, Mr Mehta would invite attention of this Court to the pleadings in the present Writ Petition, in support of his submission that hardly any grounds are mentioned therein so as to establish the case for setting aside of the 2/4

38-wp-1878.22.doc impugned order. He would claim that there is an alternative remedy available to the Petitioners to approach the very same Court for recalling the order. As such, he has sought dismissal of the Petition. Apart from above, he would claim that very conduct of the Petitioners does not call for exercising equitable powers of this Court in favour of the Petitioners, particularly when decree is a money decree. 6] I have appreciated the aforesaid submissions. 7] It appears that interest of the Respondents/decree holders is already protected as 50% of the amount under the decree is already deposited. Apart from above, if we consider the cause cited, in my opinion, default of a lawyer should not be considered to the detriment of a litigant and in support of the said proposition, reliance can be placed on the judgment of the Supreme Court in the matter of Rafiq & Anr vs Munshilal & Anr reported in 1981 AIR 1400. 8] In the backdrop of aforesaid observations, in my opinion, impugned order dated 21st February, 2020 calls for interference under 3/4

38-wp-1878.22.doc extraordinary jurisdiction. As such, impugned order dated 21st February, 2020 is hereby quashed and set aside. Notice of Motion No.3211 of 2019 stands allowed, subject to payment of costs of Rs 5,000/- to be deposited before the City Civil Court, Greater Bombay within a period of six weeks from today, which the Respondents/decree holder shall be entitled to withdraw. 9] As such, Notice of Motion for setting aside ex parte decree stands restored to the file which be decided by the Court below in accordance with law. 10] Petition is allowed in the aforesaid terms. As a consequence, Interim Application taken out therein does not survive and same stands disposed of. 11] There shall be no coercive action for a period of 10 weeks from today. However, this will not preclude the Petitioners from claiming interim relief in the matter. ( NITIN W. SAMBRE, J. ) 4/4

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