Smt. Nalini Ramakant Jadhav ... vs Manorama Widow Of Madhavrao ...
2021 Latest Caselaw 9949 Bom

Megha                        cra_167_2020 (2).doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

          CIVIL REVISION APPLICATION NO.167 OF 2020

Smt. Nalini Ramakant Jadhav (since
deceased) through her legal heirs and
representatives):-
1) Mrs. Vibhavari Mohan Shinde
2) Mrs. Sunita Ashok Shinde
3) Mrs. Anjali Ashok Shinde                         ...Applicants
                Versus
1)Manorama widow of Madhavrao
Jagtap (since deceased)
2) Uday Madhavrao Jagtap
3) Ujwala Madhavrao Jagtap @ Smt.
Ujwala Uday Kale
4) Mangla Madhavrao Jagtap @ Mrs.
Anupriya Mohanrao Nimbalkar          ...Respondents
                              WITH
          INTERIM APPLICATION NO. 1337 OF 2021
                               IN
      CIVIL REVISION APPLICATION NO. 167 OF 2020

New Manoday Co-op. Housing
Society Ltd.                                  .... Applicant/Intervenor

In the matter between :-
Nalini Ramakant Jadhav (since
deceased through legal heirs) :
Mrs. Vibhavari Mohan Shinde and ors.              .... Applicants
           v/s.
Manorama w/o. Madhavrao Jagtap
(since deceased through legal heirs) :
Uday Madhavrao Jagtap and ors.                    .... Respondents
                                   ....
Mr. Sanjeev Sawant, senior Advocate with Mr. Herambh Kadam i/b.
Mr. D.A. Sakhalkar for the Applicants.
Mr. Rajesh Kachare with Mr. Ajit Tamhane, Ms Savita Sawalkar i/b.
M/s. Tamhane and Co. for Respondent Nos.3 and 4.
Mr. Sachin Mhatre a/w. Ms. Vaishnavi Mudras and Ms. Ishita

                                 1/18
 Megha                           cra_167_2020 (2).doc

Kamath i/b. M/s. Mhatre Law Associates for the Intervenor.


                       CORAM : SMT. ANUJA PRABHUDESSAI, J.

JUDGMENT PRONOUNCED ON : 29th JULY, 2021.

JUDGMENT:-

. By this application, fled under Section 115 of the Code of

Civil Procedure, 1908 (CPC) the Applicants, who are the legal

representatives of the original Plaintif, have impugned the order dated

21/02/2020 whereby the learned Judge, City Civil Court, Mumbai,

allowed the Notice of Motion No.1314 of 2018 fled in S.C. Suit No.9750

of 1977 and thereby set aside the ex-parte decree dated 9 th October,

2014 passed in the said Suit.

2. The factual matrix giving rise to this application is that the

original Plaintif-Nalini had fled a suit before this Court being Regular

Civil Suit No.246 of 1977 for partition and separate possession. The

Respondents (Defendant Nos.1 to 4 in the suit, hereinafter referred to

as Defendants) were shown to be the residents of Jagtap Bungalow,

6/166 Kaneri Road, Borivali, Bombay. Summons were issued to the

Defendants on the said address. The Defendant Nos.1 to 3 put in their

appearance through an Advocate and fled written statement. The said

suit was dismissed for default and was restored on three occasions.

Megha cra_167_2020 (2).doc

Subsequently, in view of rise in the pecuniary jurisdiction, Suit No.246

of 1977 was transferred from this Court to the City Civil Court, Mumbai

and was re-registered as Suit No.9750 of 1977.

3. The Plaintif thereafter fled chamber summons for

amendment of the plaint, notice of which was issued to the Defendants

on the same address mentioned in the cause title. Notice issued to

Defendant Nos.3 and 4 was returned unserved as 'unclaimed' and the

Plaintif applied for substituted service by publication, which was

allowed and the notice was published in 'Free Press Journal' and

'Navshakti' circulated in Mumbai. The Defendants did not put in their

appearance. The trial court allowed the chamber summons and

accordingly, the suit, for partition was allowed to be converted into a

suit for declaration and possession.

4. The Plaintif fled an afdavit of service stating that copies

of the amended plaint were sent at the last known address of these

Defendants. The Defendants neither remained present nor fled their

additional written statement. The evidence of the Plaintif was

recorded in the absence of the Defendants. Upon considering the

evidence adduced by the Plaintif, the Trial Court by judgment and

decree dated 08/10/2014 partly decreed the Suit and thereby declared

the Plaintif to be the owner of the suit property, with further

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directions to the Defendants to deliver possession of the suit property

and to give complete accounts of rents and profts recovered by them

from the suit property since fling of the suit till handing over of the

possession of the suit property.

5. The Plaintif fled an application for execution No.55 of

2015. The original Plaintif/Decree Holder died during pendency of the

execution application. The Applicants herein fled chamber summons

to bring them on record as legal representatives of the original Plaintif

/ Decree Holder. Since the notices issued to these Defendants were

returned by the postal authorities with a remark "left", the Applicants

sought to serve them by substituted service. Subsequently, the

Applicants fled an afdavit of substituted service and by order dated

08/01/2016 the learned Judge, City Civil Court allowed the chamber

summons with directions to serve the amended copy of the execution

application on all the Defendants.

6. The Applicants/Decree Holders thereafter fled an

application to transfer the decree to the City Civil Court at Dindoshi and

sought leave to serve the transfer application on the Defendants by

substituted service. The Applicants fled an afdavit of service stating

that the Defendants were served by substituted service. These

Defendants did not appear before the executing Court and

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subsequently, the execution proceedings No.55 of 2015 came to be

transferred to the City Civil Court at Dindoshi. The executing court once

again directed the Applicants to serve the Defendants by afxation as

well as by publication.

7. On 26/03/2018 the Defendant Nos.3 and 4 fled Notice of

Motion No.1314 of 2018 for setting aside ex-parte decree dated

08/10/2014 mainly on the ground of non-service of summons. The

Defendant No.3-Ujwala and Defendant No.4 Mangla @ Anupriya have

fled their afdavits in support of the motion. They claim that

Defendant No.4 was married in the year 1971 and since then she has

been residing in her matrimonial home at Goa. Whereas Defendant

No.3 got married in the year 1978 and stayed at in her matrimonial

home at Vidyavihar, Mumbai. After the death of her husband in the

year 2006, she stayed at Vikhroli, Mumbai till April-2017 and that since

the month of April-2017 she is residing with her sister (Defendant No.4)

in Goa.

8. These Defendants have stated that they had married against

the wishes of their mother and that they were not visiting their mother

due to their strained relationship. They further claimed that they were

not aware of the pendency of the suit. It was only when the Bailif

visited the suit property and the Defendant No.2-Uday gave evasive

Megha cra_167_2020 (2).doc

replies to their queries, that they contacted a lawyer and checked the

website of the Court and learnt about the decree passed by the Court in

Civil Suit No.9756 of 1977.

9. In the afdavit- in- reply to the said notice of motion, the

Applicants questioned maintainability of the notice of motion on the

ground that the same was fled after considerable delay without a

prayer for condonation of delay. The Applicants also claimed that

Defendant Nos.3 and 4 had knowledge of the suit and that Defendant

No.3 had put in her appearance through an advocate and fled her

written statement. The Applicants further claimed that the Defendant

No.3 was duly served by registered post as well as by publication. It is

stated that these Defendants had chosen to remain absent despite

knowledge of the pendency of the proceedings.

10. By the impugned order the learned Judge held that there

were sufcient grounds and circumstances, which prevented these

Defendants from appearing before the Court and participating in the

proceedings. The Trial Court therefore allowed the notice of motion

and set aside the ex-parte decree dated 08/10/2014 in Civil Suit

No.9750 of 1977. Being aggrieved by this order the Applicants have

fled this application under Section 115 of the CPC.

Megha cra_167_2020 (2).doc

11. Mr. Sanjeev Sawant, learned senior counsel for the

Applicants contends that the Defendant Nos.3 and 4 were duly served

through the Bailif as well as by publication and that they had

knowledge of fling of the Suit. He submits that Defendant No.3-Ujwala

had put in her appearance through an advocate and fled the written

statement. He submits that these Defendants intentionally chose to

remain absent and fled the notice of motion only for avoiding

execution of decree. He submits that the application was fled after

considerable delay and hence the trial Court was not justifed in

condoning the inordinate delay and interfering with the right accrued in

favour of the Applicants. In support he has relied upon the decision of

the Apex Court in University of Delhi vs. Union of India and Ors., 2019

(0) Supreme (SC) 1372 and the decision of the Madras High Court in

S.R. Vediappan and Ors. Vs. S.P. Ramalingam and Ors. 2020 (0)

Supreme (Mad) 23. He contends that the Defendant Nos.3 and 4 have

not made out sufcient cause to condone the delay. He has relied upon

the decision of the Apex Court in Parimal Vs. Veena [AIR 2011 SC

1150] and in Mahesh Yadav and Anr. Vs. Rajeshwar Singh and Ors.

[2009 (4) Mh.L.J. 324]. He submits that the impugned order, which is

an unreasoned order cannot be sustained.

12. Per contra, Mr. Rajesh Kachare, learned counsel for

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Defendant Nos.3 and 4 submits that Defendant No.4 was married in the

year 1971 and since her marriage she has been residing in her

matrimonial home in Goa. He submits that despite due knowledge of

this fact, the Defendant No.4 is shown as a resident of Mumbai. He

submits that the summons were not served on Defendant No.4 at the

address where she was ordinarily residing. He further submits that the

Applicants had not adhered to the provisions of Rule 20 (1-A) of Order

V of CPC, which prescribes substituted mode of service when the

Defendant avoids service of summons or when the summons cannot be

served in the ordinary way. He submits that Defendant No.3 was

married in the year 1978 and since her marriage, she has been residing

at Vikhroli. He submits that the Suit was dismissed, and the Plaintif

had not taken steps to serve the copy of restoration application, or the

copy of the order dated 7/12/2010 on these Defendants. He therefore

contends that the learned Judge was perfectly justifed in setting aside

the ex-parte order.

13. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties. Order IX

Rule 13 of Civil Procedure Code, 1908 lays down procedure for setting

aside an ex-parte decree against the Defendant, which reads thus:-

"R.13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex

Megha cra_167_2020 (2).doc

parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfes the Court that the summons was not duly served, or that there was sufcient cause for his failure to appear when the suit was called on for hearing the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks ft, and shall appoint a day for proceeding with the suit.

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also:

Provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the Court is satisfed that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufcient time to enable him to appear and answer the plaintif's claim.

Explanation I.- Where a summons has been served under Order V, Rule 15, on an adult male-member having an interest adverse to that of the defendant in the subject- matter of the suit, it shall not be deemed to have been duly served with the meaning of this rule.

Explanation II.- Where there has been an appeal against a

Megha cra_167_2020 (2).doc

decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."

14. Order 9 Rule 13 of CPC empowers the Court to set aside the

decree in two diferent situations i.e. (i) if the Defendant satisfes the

Court that summons were not duly served or (ii) that there was

sufcient cause for his failure to appear when the suit was called on for

hearing. The frst proviso to this rule enables the Court to set aside the

entire decree, where the decree is of such a nature that it cannot be set

aside only as against the Defendant, who applies for setting aside the

decree. The second proviso ensures that the ex-parte decree is not set

aside merely on the ground of irregularity in the service of summons,

when the Defendant had notice of the date of hearing and had

sufcient time to appear and defend the suit.

15. In Parimal (supra) the Apex Court has observed that an ex-

parte decree has to be set aside if the party satisfes the Court that

summons has not been duly served or he was prevented by sufcient

cause from appearing when the suit was called on for hearing.

However, the Court shall not set aside the decree on mere irregularity

in the service of summons or in a case where the Defendant had notice

Megha cra_167_2020 (2).doc

of the date and sufcient time to appear in the Court. It is held that the

expression 'sufcient cause' means that party had not acted in a

negligent manner or there was a want of bonafde on its part in view of

the facts and circumstances of the case or the party cannot be alleged

to have been 'not acting diligently' or 'remaining inactive'. The Apex

Court has observed that the facts and circumstances of each case must

aford sufcient ground to enable the Court concerned to exercise

discretion for the reason that whenever the Court exercises discretion,

it has to be exercised judiciously. The Apex Court has further observed

that in order to determine the application under Order IX Rule 13 CPC,

the test that is to be applied is whether the Defendant honestly and

sincerely intended to remain present when the suit was called for

hearing and did his best to do so. Sufcient cause is thus the cause for

which the Defendant could not be blamed for his absence.

16. In the instant case, the Defendant Nos.3 and 4 had applied

for setting aside of ex-parte decree essentially on the ground of non-

service of summons. The Trial Court was therefore required to consider

whether the Defendants were duly served and /or whether they had

knowledge of the pending proceedings. A perusal of the impugned

order indicates that the Trial Court has set aside the decree on the

ground that there were sufcient grounds and circumstances that

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prevented the Defendants from appearing before the Court and

participating in the Suit. It is to be noted that the Trial Court has not

analyzed or specifed the facts and circumstances which constituted

'sufcient ground' and has not assigned any reasons for arriving at the

fnding that the Defendants were prevented by sufcient cause from

appearing before the Court. Learned counsel for the Applicant is

justifed in contending that the impugned order is an unreasoned order.

It is imperative for this Court to examine the records for satisfying as to

the correctness, legality or propriety of such order.

17. The question is whether the ex-parte decree was liable to be

set-aside for non-service of summons/notice. It is pertinent to note

that the dispute between the parties was in respect of the property

owned by Madhavrao Jagtap. He was married twice. First to Alice

Johan and later to Defendant No.1-Manorama. The original Plaintif-

Nalini is the daughter of Madhavrao and Alice whereas Defendant Nos.2

to 4 are the children of Madhavrao and Manorama (defendant No.1).

The Plaintif, had fled a suit for partition and possession wherein all the

Defendants i.e. Manorama and her three children were shown as

residents of 'House No.6/661, Kanheri Road, Borivali (East), Mumbai',

and the summons were issued on the said address.

18. Defendant Nos.1 to 3 had appeared and fled their written

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statement. Defendant No.4 did not appear either personally or

through an advocate. She claims that she was not served with

summons and had no knowledge about the suit. Defendant No.4 has

stated that she was married in the year 1971 and since her marriage,

which was much prior to the institution of the suit, she has been

residing in her matrimonial home in Goa. There is no specifc denial of

this statement. The records also reveal that in the Notice of Motion

No.126 of 1975 fled by the Plaintif in pauper petition No.1 of 1975,

Defendant No.4 was served at her matrimonial address at Goa.

Afdavit to that efect was fled by Mr. Abbas Husain, attorney of the

Plaintif. Defendant No.4 had also fled her afdavit in the said notice

of motion wherein she had disclosed her address as c/o. Mohanrao

Nimbalkar, residing at House No.73, Gokulwadi, Village Sanquelin,

Taluka Bicholim, District North Goa, Pin 403 505. It is thus, evident that

the Plaintif was well aware that Defendant No.4 was married much

prior to the institution of the suit and was residing in her matrimonial

home at Goa, despite which in the cause title she has been shown to be

the resident of Mumbai. Defendant No.4 was admittedly not served

with summons at Goa address, wherein she was residing since marriage.

19. It is true that Defendant No.3 was initially served and she

had put in her appearance and fled written statement. It is however to

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be noted that the Suit was dismissed for default on 09/06/2005 and

the Plaintif had fled Notice of Motion for condonation of delay and

restoration of suit. Undisputedly, the notice of motion was issued to

Defendant Nos.3 and 4 at Mumbai address and the same were returned

unserved with remark that they were not residing at the given address.

Orders dated 07/12/2010 in delay condonation and restoration

application records that Defendant No.2 -Uday was present in person

and had stated that his sisters i.e. Defendant Nos.3 and 4 are not

interested in the suit property and had not come forward to oppose the

suit. He had given no objection for condoning the delay and for

restoring the suit. In view of the said statement, the delay was

condoned, and the suit was ordered to be restored. This Court had

specifcally directed the Plaintif to forward copies of orders dated

07/12/2010 to Defendant Nos.3 and 4 by registered post at the address

provided by the Defendant No.2. It is not in dispute that the copies of

these orders were not forwarded to Defendant Nos.3 and 4 and they

were not informed about restoration of the Suit.

20. It is also pertinent to note that subsequent to the transfer of

the Suit from this Court to the City Civil Court in view of rise in the

pecuniary jurisdiction, the Plaintif had fled a chamber summons for

amendment of the plaint, by which the suit for partition was sought to

Megha cra_167_2020 (2).doc

be converted into suit for declaration and possession. Notices were

once again issued on the same address as mentioned in the cause title.

These notices were once again returned unserved and the plaintif

prayed for substituted service by publication. It is to be noted that

notice of this amendment application was not served on Defendant

No.4 at Goa address. The Defendant No.3, who was married in the year

1978 was also not served at her matrimonial address. The records

reveal that the Trial Court had allowed the Plaintif to serve the

Defendant Nos.3 and 4 by publication and accordingly notices were

published in 'Free Press Journal' & 'Navshakti'. Sufce it to say that

substituted service cannot be ordered in a casual manner without there

being any reason to believe that the Defendant was avoiding service or

could not be served in ordinary manner for any other reason. In the

instant case, as stated earlier the Plaintif had tried to serve the

Defendant Nos.3 and 4 at their parental address despite knowing that

they were married and were residing at their matrimonial address. The

Plaintifs had applied for substituted service without taking steps to

serve these defendants in the ordinary manner and without there being

any material to indicate that they were evading the service. Therefore

the service upon these defendants cannot be considered to be in

accordance with law.

Megha cra_167_2020 (2).doc

21. It is further to be noted that Order V, Rule 20 (1A) provides

for service by an advertisement in a daily newspaper circulating in the

locality in which the Defendant is last known to have actually and

voluntarily resided, carried on business or personally worked for gain.

In the instant case, notices were published in 'Free Press Journal' and

'Navshakti' which are circulated in Mumbai. There is no material on

record to indicate that Defendant No.4 was residing at Vikhroli as

alleged. As stated earlier, the records indicate that the Defendant No.4

was a resident of Goa. The daily newspapers in which the notices were

published had no circulation in the locality in which the Defendant No.4

was actually residing. Under the circumstances, the substituted service

cannot be considered to be valid service.

22. The suit was restored without notice to these defendants.

As stated earlier, the Plaintif had not taken steps to obtain the address

of this Defendant through Defendant No.2, and had not served the

copy of the orders on both these Defendants. There is nothing on

record to indicate that despite non-service of notice and /or the copy of

the order, these Defendants were aware about the restoration of the

Suit and that they had deliberately avoided appearing in the

proceedings.

23. These Defendants have claimed that on learning that the

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Bailif had visited the suit property, they came down to Mumbai on

23/03/2018 and contacted their brother (Defendant No.2). It was only

when he gave evasive replies that they checked the website through

their Advocate and learnt about the decree. There is no specifc denial

of the statement that these Defendants had learnt about the decree

only in the month of March-2018. The notice of motion for setting

aside the ex-parte decree was fled on 26/03/2018 i.e. within 30 days

from the date of knowledge and is therefore within limitation. The

Defendants had not adopted delaying tactics and as such in the facts of

the case the decisions in University of Delhi and S.R. Vediappan (supra)

have no application.

24. The records indicate that the Defendant Nos.3 and 4 were

not served with summons/notice. Hence, Defendant No.4 had no

knowledge of fling of the suit whereas Defendant No.3 had no

knowledge of restoration of suit. In short, they had no knowledge of

pendency of the suit. They had neither acted in a negligent manner nor

can they be attributed with want of bonafdes. Non-service of

summons/notice is therefore a valid ground for setting aside the

decree.

25. By the impugned judgment and decree, the Plaintif is

declared to be the owner of the suit property and the Defendants have

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been directed to deliver possession of the suit property with further

direction to give accounts of rents and profts received from the suit

property. The decree is of such nature that it cannot be set aside only

against Defendant Nos.3 and 4, who have applied under this Rule and

has to be set aside as a whole against all the Defendants including

Defendant No.2.

26. Under the circumstances, the Civil Revision Application has

no merits and is accordingly dismissed.

27. In view of dismissal of Civil Revision Application, Interim

Application No.1337 of 2021 does not survive and stands disposed of.

(SMT. ANUJA PRABHUDESSAI, J.)

28. At this stage, learned counsel for the Applicants seeks stay

of the order. No stay was operating during the pendency of the

Application. No grounds are made out to stay the order.

                                                            (SMT. ANUJA PRABHUDESSAI, J.)




        Digitally signed
MEGHA   by MEGHA S
        PARAB
S       Date:
        2021.07.30
PARAB   15:22:23
        +0530