JUDGMENT A.M. KHANWILKAR, J.
1. This writ petition under Article 227 of the Constitution of India takes exception to the order passed by the Additional District Judge, Pune dated September 8, 1994 below Entry No. 2080.
2. Briefly stated, the respondent landlord instituted suit against the husband of the petitioner herein, who is stated to be the original tenant, in respect of the suit premises, before the Court of Small Causes, Pune being C.S. No. 374 of 1993, for possession together with arrears of rent, mesne profits and costs. It appears that summons of the said suit was sent to the defendant, i.e. petitioner's husband, but was returned unserved as not claimed. Consequently, the trial Court passed order on 27th October, 1993 that suit to proceed ex-parte. Later on, the trial Court by order dated 3rd January, 1994 decreed the suit in favour of the respondent. According to the petitioner, the petitioner had no knowledge about the said ex-parte proceedings or the suit instituted by the respondent. The petitioner's case is that the petitioner's husband was absconding since more than one year prior to the institution of the said suit. In other words, the petitioner's defence is that her husband was not available in the suit premises and therefore no notice was served on him. The petitioner has also asserted before the Appellate Court that no notice was attempted to be served either personally or through any other mode on the petitioner who was occupying the suit premises as family member of the original tenant. The petitioner's further case is that it is only when the ex-parte decree was sought to be executed on 29th August, 1994 that the petitioner became aware about the existence of the ex-parte decree; and immediately thereafter, being the wife of the original defendant and occupant in the suit premises, rushed to the Appellate Court on 5th September, 1994 and took necessary steps including filing of application for permission to file appeal, as well as another application for condonation of delay in filing the appeal against the ex-parte decree dated 3rd January, 1994 for the reasons set out therein, and also lodged memorandum of appeal. The Additional District Judge, Pune by the impugned order has rejected the petitioner's prayer for permission to file appeal as well as the application for condonation of delay and resultantly refused to register the appeal filed on behalf of the petitioner. It is this order that has been taken exception to in the present writ petition.
3. The gravamen of the grievance made on behalf of the petitioner is that the Court below has clearly exceeded jurisdiction in addressing itself to matters which would have been relevant only after the Court had decided the application moved by the petitioner for permission to file appeal. According to the petitioner, there was sufficient cause and good reason which prevented the petitioner from filing the appeal within limitation. According to the petitioner, the matters that have been considered by the Appellate Court while rejecting the permission are totally extraneous, in that the same would be relevant only while considering the merits of the grounds of appeal. In other words, what is contended is that for the time being, the Court ought to have confined to the issue as to whether the petitioner had made out sufficient and reasonable cause for condoning the delay in filing the appeal and secondly whether the petitioner was competent and had locus to maintain the appeal.
4. The learned Counsel for the respondent, on the other hand, has supported the reasoning adopted by the Appellate Court; and, according to him, no fruitful purpose would be served by remitting the matter to the Appellate Court to examine it afresh.
5. Having considered the rival submissions, I have no hesitation in accepting the stand taken on behalf of the petitioner that the District Court ought to have restricted the discussion with regard to the issue as to whether the petitioner had made out reasonable and sufficient cause for filing the appeal beyond limitation and on the second aspect as to whether the petitioner would be competent and had locus to maintain the appeal. The other issues would arise for consideration only when the Court answers the aforesaid two aspects in favour of the petitioner. I have no hesitation in observing that whether the summons of the suit was sent and was duly served or not is a matter that would be subject matter for consideration in the context of grounds of appeal raised on behalf of the petitioner.
6. Understood thus, I would now like to confine myself to the first aspect as to whether the appeal presented by the petitioner was within limitation or not; and if the same was barred by time, whether sufficient and reasonable cause was shown by the petitioner. From the relevant dates, it would appear that the case made out by the petitioner is that the petitioner acquired knowledge of the ex-parte decree for the first time on 29th August, 1994. In the circumstances, limitation for filing appeal would commence from the said date. In any case, the petitioner has approached the Court on the specific plea that her husband was absconding since prior to 1993 and is not traceable. There is no positive evidence to rebute this claim. Considering this aspect, I have no hesitation in accepting the explanation offered by the petitioner that there was sufficient and reasonable cause for condoning the delay in filing of the appeal. It is not in dispute that after acquiring the knowledge on 29th August, 1994, the petitioner immediately rushed to the Court and instituted necessary application and memorandum of appeal on 5th September, 1994 and thus attended the matter with utmost dispatch. In the circumstances, in my view, there is sufficient and reasonable cause made out by the petitioner for condoning the delay in filing of the appeal. Accordingly, the application filed by the petitioner for condonation of delay in filing the appeal deserves to be allowed in the interest of justice.
7. In so far as the application preferred on behalf of the petitioner for permission to maintain the appeal is concerned, I am of the view that since the petitioner's husband is absconding and is not traceable, the petitioner was naturally the aggrieved person if the decree passed against her husband was to be executed. No doubt, the petitioner is claiming right in respect of the suit property through the original tenant, but the fact remains that the original tenant is absconding and had not contested the proceedings which resulted in ex-parte decree. In such a peculiar circumstances, it would be appropriate and in the interest of justice to permit the family member of the original tenant, namely his wife, who is also the occupant in the suit premises, to contest the proceedings. In that sense, the family member of the original tenant being an occupant of the suit premises would be an aggrieved party; and, therefore, competent to maintain the appeal against the ex-parte decree. In the circumstances, even the said application preferred by the petitioner for permission to maintain the appeal deserves to be allowed.
8. Reverting to the reasons which weighed with the District Court for non-suiting the petitioner, as pressed by the respondent, that the petitioner had knowledge about the pendency of the suit and besides that the District Court has proceeded on the assumption that since the summons of the suit sent by registered post was returned with endorsement "not claimed", it would presuppose that the petitioner's husband was duly served in law and, therefore, there was good reason for the trial Court to proceed ex-parte and pass decree. In my view, all these matters would be relevant and would arise for consideration only in the context of the grounds of memorandum of appeal and not at the stage when the Court is considering the prayer for condonation of delay in filing the appeal or for permission to maintain the appeal.
9. As mentioned earlier, the petitioner had approached the Court with a specific plea that her husband is absconding and not traceable and no notice has been ever served on her husband or on any of the family members who are occupying the suit premises. This is a question of fact which will have to be examined by the District Court in the context of well settled legal position. The principle with regard to manner of rebuttal and proof of non-service is no more res integra. The learned Counsel has relied on the decision of this Court in the case of P.A. Kowli v. Narayan, reported in 1981 Mh.L.J. 355. In this circumstances, this question is left open to be decided by the District Court while considering the merits of the appeal.
10. The District Court shall register the appeal presented by the petitioner and hear and decide the same on merits in accordance with law after giving opportunity to both the sides to adduce further documents or evidence, if need be. The District Court shall decide the appeal expeditiously preferably within 6 months from receipt of the writ of this Court. Needless to mention that the District Court shall decide the appeal uninfluenced by any of the observations made in the impugned order or any other proceedings.
11. Both the parties agree to appear before the District Court on 19th March, 2001 when the District Court may fix the date of hearing.
12. Rule made absolute as above. No order as to costs.
Authenticated copy of this order be made available to the parties.
Rule made absolute.