Bombay High Court
Dinesh S/O Baban Jagtap vs Baburao S/O Baban Jagtap on 15 March, 2022
Bench: Manish Pitale
1/4 918.sa16.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 16 OF 2022
Dinesh s/o Baban Jagtap
Vs.
Baburao s/o Baban Jagtap
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. Prashik S. Gawai, Advocate for appellant.
CORAM : MANISH PITALE J.
DATE : 15.03.2022.
By this appeal, the appellant has
challenged concurrent judgments and orders passed
by the two Courts below. The appellant and
respondent are brothers. The respondent had filed a
suit for eviction and possession against the appellant.
The Court of Civil Judge Senior Division i.e. trial
Court found that the respondent i.e. (Original
plaintiff) had supported his case by examining
himself. The appellant was found to have been served
with summons and yet he chose not to appear before
the trial Court. In these circumstances, the trial Court
considered the pleadings, evidence and material
placed on record on behalf of respondent and
decreed the suit.
Prity
2/4 918.sa16.2022
2. The appeal filed by the appellant before
the District Court was dismissed, by holding that the
trial Court was justified in proceedings against the
appellant, as there was valid service of summons and
the appellant himself chose not to contest the matter.
3. Mr. Gawai, learned counsel appearing for
the appellant argued only one contention before this
Court that in the present case, both the Courts below
failed to appreciate that summons were not duly
served on the appellant and that therefore, the decree
could not be passed against him, only on the basis of
the pleadings, evidence and material placed on
record by the respondent.
4. Reliance was placed on Order 5 Rule 15 of
the Civil Procedure of Code (CPC), to contend that
the mandatory requirements under the said provision
of law were not complied with and that this gives rise
to substantial question of law in the present appeal.
5. Reliance was placed on the judgment of
the Madhya Pradesh High Court in the case of Suresh
Kumar Vs. Smt. Godaveriba, AIR 1992 Madhya
Pradesh 205 and Kerala High Court in the case of
Abbas Vs. Moideen Kunhi and another, 2014 (3) KLT
872.
Prity
3/4 918.sa16.2022
6. This Court has considered the concurrent
judgments and orders passed by the Courts below.
The specific contention raised on behalf of the
appellant is also considered. A perusal of the
impugned judgment and order passed by the
Appellate Court shows that there is elaborate
discussion on the question of validity of service of
summons in paragraph Nos.11 and 12 of the
impugned judgment and order.
7. A perusal of the report of the bailiff shows
that an attempt was made to serve the appellant and
when he was not found, the summons were served on
the father of the appellant. Being an adult member of
the family residing with the appellant, service of
summons in this manner clearly satisfied the
requirement under Order 5 Rule 15 of the CPC.
8. Reliance placed on behalf of the appellant
on the judgments of the Madhya Pradesh High Court
in the case of Suresh Kumar (supra) and Kerala High
Court in the case of Abbas (supra), cannot be of
much assistance for the reason that in the case in
which the Madhya Pradesh High Court rendered the
said judgment, the father of the defendant had
refused to accept service, thereby showing that the
case is distinguishable on facts. The judgment of the
Prity
4/4 918.sa16.2022
Kerala High Court interpreted Order 5 Rule 15 of the
CPC lays down the requirements for valid service of
summons. Even if the dictum laid down in the said
judgment is to be applied to the facts of the present
case, it becomes clear that summons were duly
served on the appellant and he himself chose not to
contest the matter on merits.
9. In view of above, this Court finds that no
substantial question of law arises in the present
appeal and accordingly, it is dismissed.
JUDGE
Digitally signed
by PRITY S
PRITY S GABHANE
GABHANE Date: 2022.03.17
14:19:01 +0530
Prity
