Shri. Amichand Amavash Pandit vs Shri. Prashant Pannalalji ...
2021 Latest Caselaw 3766 Bom

                                                                                       2-sast-29379-2018


                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 CIVIL APPELLATE JURISDICTION

                                               SECOND APPEAL (ST) NO.29379 OF 2018

                            Shri.Amichand Amavash Pandit                    ..Appellant
                                  Vs.
                            Shri.Prashant Pannalalji Karnawat & Ors.        ..Respondents
                                                            ----
                            Mr.M.M. Sathaye a/w Mr.Sanjay P. Shinde for the Appellant.

                            Mr.Mangal Bhandari i/b Ms.Pranjali Bhandari for Respondent No.1.
         Digitally signed                                 ----
Nilam    by Nilam Kamble
                                                   CORAM : C.V. BHADANG, J.

Kamble Date: 2021.03.01 18:30:57 +0530

RESERVED ON : 23rd FEBRUARY 2021

PRONOUNCED ON : 01st MARCH 2021

P.C.

1. The challenge in this appeal is to the judgment and

decree dated 15th September 2018 passed by the learned District

Judge at Nashik in Regular Civil Appeal No.289 of 2017. By the

impugned judgment, while dismissing the appeal filed by the

appellant, the First Appellate Court, has confirmed the judgment

and decree dated 31st October 2017 in Regular Civil Suit No.525 of

2013 passed by the learned Joint Civil Judge Senior Division, Nashik

by which the suit filed by the respondent Nos.1 to 6 for declaration

and mandatory and permanent prohibitory injunction has been

decreed.

                                 N.S. Kamble                                            page 1 of 16
                                                                 2-sast-29379-2018

2. The brief facts necessary for the disposal of the appeal

may be stated thus :-

The respondent Nos.1 to 6 filed the aforesaid suit

against the appellant (Defendant No.1) and the respondent Nos.7 to

11 (Defendant Nos.2 to 6) for declaration and mandatory and

prohibitory injunction.

The subject matter of dispute as set out in the

unamended plaint filed in the year 2013, comprises of field Survey

No.341/12 admeasuring H 79.7 Ares.

3. The case made out in the plaint is that the father of the

plaintiff that is Late Pannalaji Karnawat had purchased the said land

in a Court auction. Pannalaji expired on 23 rd July 2012 and the suit

property is the ancestral property of the joint family of the plaintiffs.

The defendant Nos.2 to 6 were recorded as agricultural tenants in

the said land which entry has subsequently been cancelled and that

has attained finality. It was the material case that on 12 th August

2013 it was noticed that the appellant (defendant No.1) was

carrying out illegal construction in an area admeasuring 15 feet x 20

feet in the said land. According to the plaintiffs in spite of the fact

that the defendant Nos.2 to 6 had lost through out in the matter of

their claim as agricultural tenants, they were inducting certain

N.S. Kamble page 2 of 16 2-sast-29379-2018

persons in a portion of the suit property in which the construction

has been undertaken. It is in these circumstances, that the suit came

to be filed for a declaration that the construction being effected by

the appellant was illegal and for removal of the same. The plaintiffs

also sought an injunction against the defendant Nos.2 to 6

restraining them from entering into any transaction in respect of the

suit property with third parties.

4. It appears that the suit was contested only by the

defendant Nos.2 to 5 inter alia on the ground that the dispute as to

the agricultural tenancy was still pending. All other adverse

allegations were denied. The suit proceeded exparte against the

appellant.

5. On the basis of the rival pleadings, the learned trial

Court framed in all six issues.

6. The parties led oral and documentary evidence.

7. The learned trial Court by a judgment and decree dated

31 October 2017 partly decreed the suit, granting a declaration that

N.S. Kamble page 3 of 16 2-sast-29379-2018

the construction undertaken by the appellant was illegal and for

removal of the same.

8. Before proceeding further it is necessary to note that the

plaint came to be amended in the year 2017 by addition of

paragraph 1B in which the specific portion on which the appellant

has made the construction of a ground plus one storied building in

an area admeasuring 15 feet x 20 feet was included.

9. The appellant challenged the said decree before the

learned District Judge in Regular Civil Appeal No.289 of 2017. It

appears that simultaneously the appellant also filed an application

under Order IX Rule 13 of C.P.C. for setting aside the ex-party decree

being CMA No.392 of 2017. The record discloses that before the

said application could be taken up for hearing, the appeal before the

learned District Judge was dismissed on 15 th September 2018. After

that the learned trial Court placing reliance on extension to Order IX

Rule 13 of C.P.C. rejected the CMA No.392 of 2017 by order dated

23rd April 2019.

10. In view of the dismissal of the appeal by the learned

District Judge, the appellant is before this Court.

     N.S. Kamble                                                  page 4 of 16
                                                             2-sast-29379-2018

11. I have heard Mr.Sathye, the learned counsel for the

appellant and Mr.Bhandari, the learned counsel for respondent No.1.

With the assistance of the learned counsel for the parties I have gone

through the record.

12. It is submitted by the learned counsel for the appellant

that the suit property as set out in the unamended plaint filed in the

year 2013 comprises of land admeasuring about 7 Acres. It is

submitted that the description of the construction made by the

appellant, which was subject matter of dispute in the suit, was

introduced by virtue of paragraph 1B by an amendment in the year

2017. It is pointed out that there was no notice served on the

appellant after the amendment of the plaint. It is thus submitted

that for this reason alone the impugned judgment passed by the trial

Court is vitiated. Secondly it is submitted that the appellant had

gone to his native place in Bihar and the summons is not shown to

be served personally. It is submitted that as per bailiff report there

was a lady in the house to whom the summons was served. It is

submitted that she was not wife of the appellant but the wife of the

caretaker. It is submitted that in any event there is no proper service

of the summons on the appellant and therefore the impugned

N.S. Kamble page 5 of 16 2-sast-29379-2018

judgment and decree passed by the trial Court, as confirmed by the

Appellate Court cannot be sustained.

13. The learned counsel submitted that the application

under Order IX Rule 13 was rejected by the trial Court on the basis

of the explanation appended to Rule 13, in view of the disposal of

the appeal. It is pointed out that the said application is not decided

on merits and therefore appellant cannot be rendered remedyless in

order to demonstrate that there was no proper service of summons.

It is submitted that the Appellate Court has gone into the said

question. However, has not appreciated the fact that there was no

personal service on the appellant. It is submitted that the Appellate

Court is also in error in observing that there was no evidence to

show that the appellant had gone to his native place in Bihar,

inasmuch as, there was no such occasion to lead such evidence in

the appeal.

14. The learned counsel referred to the provisions of section

107 along with Order XLI Rule 2, Rule 13 and 33 of C.P.C., in order

to submit that the powers of the Appellate Court in such case are

quite wide and in an appropriate case the Appellate Court can also

N.S. Kamble page 6 of 16 2-sast-29379-2018

go into question, whether there was a service of summons and

whether the ex-party judgment and decree can thus be sustained.

15. On behalf of the appellant reliance is placed on the

decision of the Supreme Court in case of Bhanu Kumar Jain V/s.

Archana Kumar and Another1 and Bhivchandra Shankar More V/s.

Balu Gangaram More & Others2 .

16. The learned counsel for the respondent has supported

the impugned judgment. It is submitted that the amendment was

effected only by way of abundant caution and the plaint as originally

filed, clearly showed the suit property which was in dispute, namely

the construction undertaken by the appellant.

17. The learned counsel referred to the prayer clause of the

plaint (which was not amended) which refers to the declaration and

the removal of the construction made by the appellant. It is

submitted that there is sufficient evidence in the form of the report

of the bailiff to show that there was service of the summons on the

appellant. It is submitted that the appellant failed to produce any

documentary evidence such as the railway or other ticket showing 1 (2005) 1 Supreme Court Cases 787 2 (2019) 6 Supreme Court Cases 387

N.S. Kamble page 7 of 16 2-sast-29379-2018

that he was traveling to his native place in Bihar at the relevant

time. It is submitted that at the time of permitting the amendment

the Court had not thought it fit to issue a notice. The learned

counsel in this regard referred to the order by which the amendment

was allowed. It is submitted that even otherwise the suit structure

is unauthorized and the Municipal Corporation had issued a notice

for demolition which was challenged by the appellant and that

matter has attained finality.

18. It is submitted that the appellant has failed to produce

any document to show that the structure is legal and therefore the

same cannot be protected.

19. On behalf of the respondents reliance is placed on the

decision of the Supreme Court in N. Mohan V/s. R. Madhu3 and

Neerja Realtors Pvt. Ltd. V/s. Janglu (Dead) Through Legal

Representative4 and the decision of the Kearla High Court in

Aboobacker Babu Haji V/s.athummakutty Umma5.

3    2019 (16) Scale 602
4    (2018) 2 Supreme Court Cases 649
5    AIR 2002 Ker 313

    N.S. Kamble                                                page 8 of 16
                                                            2-sast-29379-2018

20. I have carefully considered the rival circumstances and

the submissions made. It is necessary to note that there was a

certain debate during the course of the arguments at bar as to the

scope of the appeal challenging an ex-party decree, particularly in

the wake of the defendant also having taken recourse to filing an

application for setting aside decree under Order IX Rule 13 of C.P.C.

It was contended on behalf of the respondent that once the

appellant has taken recourse to the application under Order IX Rule

13 of C.P.C. which was dismissed it is not open for the appellant to

raise the self same contentions about the circumstances in which the

ex-party decree was passed, in the appeal. The learned counsel for

the appellant in reply has referred to the provisions of Section 107

along with Order XLI Rule 2, Rule 31 and 33 of C.P.C. in order to

submit that powers of the Appellate Court are wide.

21. The said issue may not detain me long as the legal

position is clearly well settled, in view of several decisions including

that of the Supreme Court in the case of Bhanu Kumar Jain V/s.

Archana Kumar & Anr., N. Mohan V/s. R. Madhu as well as Neerja

Realtors Pvt. Ltd. V/s. Janglu (Dead) Through Legal Representative.

It is now well settled that the defendant who has suffered an ex-

party decree has two options namely of challenging the decree in an

N.S. Kamble page 9 of 16 2-sast-29379-2018

appeal under Section 96(2) of C.P.C. and/or to file an application

under Order IX Rule 13 before the trial Court for setting aside the

decree. In such an application the defendant can demonstrate

that :- (i) The summons was not duly served or (ii) That he was

prevented by any sufficient cause from appearing when the suit was

called for hearing.

22. It is further well settled that if both these remedies

namely of filing an appeal as well as an application for setting aside

decree are availed of, the application under Order IX Rule 13 cannot

be prosecuted in the event the appeal is dismissed prior to the

consideration of such application. This is because in such a case the

decree of the Trial Court merges in that of the Appellate Court.

This is precisely the effect of the explanation to Order IX Rule 13 of

C.P.C. However, the converse is not true. Thus the appeal can

continue even after the decision of the application under Order IX

Rule 13 of C.P.C.

23. The Supreme Court in the case of Bhanu Kumar Jain

has held thus in paragraph 24 of the judgment.

 N.S. Kamble                                                page 10 of 16
                                                                  2-sast-29379-2018

"24. An appeal against an ex parte decree in terms of Section 96(2) of the Code could be filed on the following grounds:

(i) The materials on record brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and

(ii) the suit could not have been posted for ex parte hearing."

24. In the case of Bhivchandra Shankar More V/s. Balu

Gangaram More & Ors.6 the time spent in prosecuting an

application Order IX Rule 13 was considered as 'sufficient cause' for

condonation of delay in filing an appeal under Section 96(2) of

C.P.C.

25. Coming to the present case the application under Order

IX Rule 13 filed by the appellant being CMA No.392 of 2017 was

dismissed on 15th September 2018, in view of the explanation to

Rule 13 and not on merits. A perusal of the judgment of the First

Appellate Court would show that the Appellate Court has gone into

the question whether the ex-party decree could have been justifiably

passed in the circumstances. In such circumstances, I propose to

6 (2019) 6 Supreme Court Cases 387

N.S. Kamble page 11 of 16 2-sast-29379-2018

examine the contentions as raised on behalf of the appellant on their

own merits.

26. Before proceeding further it is necessary to note that the

case made out by the appellant is that there was no service of

summons on him of the suit and secondly there was no summons

issued after the plaint was amended by inclusion of paragraph

1B(setting out the description of the subject construction) in the

year 2017.

27. Insofar as the first aspect is concerned a perusal of the

bailiff report shows that the bailiff had visited the suit premises and

there was a lady found in the house who according to the bailiff was

the wife of the appellant. She informed that the appellant has gone

for work and would be returning by evening. In such circumstances,

the bailiff had reported that the copy of the summons/notice was

affixed to the conspicuous part namely door of the house.

28. The case made out by the appellant is that he had gone

to his native place in Bihar which the First Appellate Court has

refused to accept inter alia on the ground that no evidence was

produced in support of the same. The learned counsel for the

N.S. Kamble page 12 of 16 2-sast-29379-2018

appellant submitted that there was no occasion for the appellant to

have furnished the evidence in the appeal. The contention in my

considered view cannot be accepted. The appellant could have

produced the railway or other tickets or the particulars about any

other conveyance used by which he had visited his native place at

Bihar which is not forthcoming. It was also contended that the

appellant had visited his native place to see his aunt who was ill

who had subsequently expired and during this period he had kept a

caretaker Hiralal who has staying with his wife in the suit premises.

29. It can thus be seen that the First Appellate Court having

dealt with this aspect in paragraph 16 on wards has found and to

my mind rightly be so that except the bald statement of the

appellant there is no evidence whatsoever that the appellant had

visited Bihar when Bailiff had visited the suit premises. In any event

as per the bailiff report a copy of the notice was affixed to the door

of the house and thus it can reasonably be expected and assigned

that on his return appellant ought to have become aware of the

pending suit. In my considered view there is enough evidence to

show that there was proper substituted service based on the bailiff

report and therefore no exception can be taken to the ex-party

decree on the ground of the non-service of the summons.

 N.S. Kamble                                                page 13 of 16
                                                           2-sast-29379-2018

30. This takes me to the second ground about the absence

of summons notice after the plaint came to be amended in the year

2017. I have gone through the plaint as originally filed as well as

the amended plaint and also the order dated 12 th April 2017 below

Exhibit-67 by which the amendment was allowed. It is clearly

discernible from record that paragraph 13 of the unamended plaint

refers to the construction of about 15 feet x 20 feet by the appellant

and the prayer clause (which was not amended) also refers to the

removal of the construction made by the appellant. Thus the plaint

as originally filed, has sufficient details about the subject structure

which was in dispute. It is in these circumstances, that the trial

Court found, while allowing the amendment, that it was only by

way of clarification and the amendment would not change the

nature of the suit claimed. Thus the contention based on the

absence of notice after the amendment of the year 2017 also to my

mind cannot be accepted.

31. I have carefully gone through the judgment of the First

Appellate Court and the learned trial Court. The findings of the fact

recorded are based on the evidence and the material which is placed

on record and they do not suffer from any infirmity.

 N.S. Kamble                                               page 14 of 16
                                                             2-sast-29379-2018

32. In my considered view, the appeal does not raise any

substantial question of law.

33. There is one more reason why it is not possible to

interfere with the impugned judgment which well have the effect of

protecting the structure. It is undisputed that the Nashik Municipal

Corporation had issued a notice for demolition of the structure on

the ground that it is unauthorized. It is undisputed that the said

notice was challenged by the appellant and others in Regular Civil

Suit No.276 of 2017 which was dismissed on 05 th June 2018 and

that decree has attained finality. Thus it is not possible to grant any

further protection to the structure. The Second Appeal is without

any merit and it is accordingly dismissed, with no order as to costs.

Decree be drawn accordingly.

34. At this stage the learned counsel for the appellant seeks

stay of the judgment and order.

35. The learned counsel for the respondent points out that

there is no ad-interim stay operating in this Second Appeal.

 N.S. Kamble                                                page 15 of 16
                                                            2-sast-29379-2018

36. In view of the fact that there was no interim relief

operating in the matter, the prayer for the stay stands rejected.

C.V. BHADANG, J.

 N.S. Kamble                                               page 16 of 16