Mohammad Ismail Rangari Rajkumar ... vs Rajkumarz J. Kocharz @ ...
2022 Latest Caselaw 2816 Bom

                                                                  (5)-AO-218-2019 with CAA 259-2019.doc
                                                                                      23.03.2022


         Digitally
         signed by
         MOHAMMAD
MOHAMMAD NAJEEB
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAJEEB   MOHAMMAD
MOHAMMAD QAYYUM
QAYYUM   Date:
                                  CIVIL APPELLATE JURISDICTION
         2022.03.25
         16:36:03
         +0530

                                 Appeal from Order No. 218 / 2019
                                               Alongwith
                               Civil Application (CAA) No. 259 / 2019
                                                   in
                                 Appeal from Order No. 218 / 2019

                 Mohammad Ismail Rangari Rajkumar
                 J. Kochar @ Rajkochar                                    ... Appellant
                         Versus
                 Rajkumarz J. Kocharz @ Razjkochar                        ... Respondent


                                                ****
                 Mr. Shakeeb Shaikh a/w Mr. Hamid Ahmed i/by MZA Associates,
                 Advocate for Appellant.
                 Mr. Induprakash Tripathi a/w Bhagyashree Gawas i/by C.K. Tripathi,
                 Advocate for Respondent.
                                                ****

                                                CORAM     : SANDEEP K. SHINDE, J.

                                                 DATE     : 23rd MARCH, 2022.



                 P.C.

                        Heard. Learned Counsel for the parties.

1. This appeal under Order-43 Rule-1(d) read with Section 104 of

the Civil Procedure Code, challenges the order dated 15 th October,

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2018, by which the learned Judge, declined to set aside the exparte

decree dated 15th October, 2018 passed against the Appellant-

Defendant in S.C. Suit No. 2290/2012. The subject suit was

instituted by the Respondent-Plaintiff in October, 2012 under Section

6 of the Specific Reliefs Act. The trial Court issued writ of summons

on 16th October, 2012, returnable on 7th October, 2012. The Bailiff

made attempts on three occasions i.e. 20th November, 2012; 23rd

November, 2012 and 29th November, 2012 to serve the summons on

the Appellant-Defendant; however since his house no. 2/10 was found

locked, it could not be served. Reports of Bailiff show that he

enquired with Mr. Sayed, a next door neighbour, whereabouts of the

Defendant. Accordingly Bailiff submitted the reports. Whereafter the

Plaintiff moved an application Exhibit-6 dated 7 th December, 2012,

seeking an order to serve the Defendant by substituted mode of

service. Paragraph No. 1 and 3 of the application reads as under;

" 1. I say that when Bailiff of this Hon'ble Court visited the residence of Defendant at the address mentioned in the cause title of the plaint on 20.11.2012 at about 2.00 p.m. on 23.11.2012 at about 1.00 p.m. and on 29.11.2012 at about 9.00 a.m. at building No.2/10, Kidwai Nagar, RAK Marg, Wadala,

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Mumbai 400 031 where defendant's premises was found lock and upon inquiries with the neighbors Sayed Shabid Room No.11 & 12 who informed that defendant has got out bailiff was accompanied by Sarvesh Tripathi advocate clerk.

3. I say that the defendant despite being aware of the above plaint and proceedings deliberately and intentionally keeping himself out of the way for the purpose of avoiding the service upon him personally, by the bailiff of this Hon'ble Court."

. Thus, to be understood that Plaintiff moved an application to

serve the Defendant in accordance with Order-V Rule-20 of the CPC.

On 7th October, 2012, the learned Judge permitted to serve by

substituted mode of service. After which, Bailiff effected the service,

by affixing a copy of summons on the door of the Defendants' house

and accordingly filed a report. The trial Court upon accepting the

service of writ of summons proceeded with the suit and decided it

exparte on 10th December, 2015. Whereafter, Plaintiff instituted the

execution proceeding. When Bailiff went to serve the execution

application, Defendant's house was found locked. Yet, one person,

claiming to be a brother of the Defendant, residing in the same

building, accepted the service. Thereafter the Defendant came to

know about the exparte decree passed against him. Defendant thus,

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moved, an application under Order-9 Rule-13 of CPC for setting aside

the exparte decree, and prayed that delay caused in preferring the

application may be condoned. The learned trial Court declined to

condone delay, as such the application to set aside the exparte decree

was rejected. That order was challenged in appeal before this Court,

wherein vide order dated 1st September, 2016 delay was condoned

and the trial Court was directed to decide the Defendant's

application, made under Order-9 Rule-13 of CPC on merits. In the

course of the hearing, the Defendant had filed affidavit of one Sayed

Shoeb, his immediate neighbour as well as the Bailiff was also

examined.

2. The trial Court upon appreciating the arguments and evidence

on record, dismissed the application. Thus, this appeal.

3. It is Appellant case that;

(i) Plaintiff in collusion with Bailiff and Clerk of the Advocate

prepared a false report;

(ii) the reports of Bailiff were prepared in breach of mandatory

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requirements of Order-V Rule-17, 19 and 20 of CPC;

(iii) the trial Court ought to have made enquiry about genuineness of

service and ought to have called for affidavit of witnesses and Bailiff

before proceedings with passing of exparte decree.

(iv) the Bailiffs' reports were not supported by independent witnesses

and therefore the trial Court ought not to have relied on it.

(v) Order-V Rule-19 of CPC requires the verification by affidavit of

service of serving Officer. However, this mandate was not complied

with.

(vi) the learned Court ought to have directed the Plaintiff to serve

the Defendant by advertisement in news paper, as contemplated

under Order-V Rule-20 (1A) of CPC.

. To substantiate, that Plaintiff in collusion with Bailiff had

prepared a false service report, the learned Counsel for the Appellant

has taken me through the evidence of Sayed Shoeb, next door

neighbour of the Defendant and evidence of Mr. Naik, Bailiff

attached to the Court. Learned Counsel submitted that evidence of

Sayed Shoeb in clear terms falsifies the Bailiff's report inasmuch as

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Mr. Sayed in evidence stated that on 20 23 and 29 th November, 2012

nobody had enquired with him the whereabouts of Defendant.

Learned Counsel submitted that the learned trial Court did not

properly appreciate the evidence of Mr. Sayed and thereby

erroneously held that Defendant could not satisfy the Court that writ

of summons was not duly served on him. On the other hand,

learned Counsel for the Respondent supported the impugned

judgment.

4. Question is whether Defendant has satisfied the Court that writ

of summons was not duly served on him? AND whether order

impugned calls for interference ?

5. My answer is in negative, for the following reasons.

Mr. Naik, Bailiff, in his evidence has proved report at Exhibit-05.

Although, he was subjected to searching cross-examination

Defendant's could not elicit any material to disbelieve him. His

evidence was consistent with reports, which conveyed that he visited

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the house of the Defendant and also enquired wherebaouts of

Defendant with Mr. Sayed Shoeb, next door neighbour of the

Defendant. Now, let me assess the evidence of Sayed Shoeb.

Defendant has filed affidavit of Sayed, wherein he denied that on 20 th

23rd and 29th November, anyone had enquired with him the

whereabouts of Defendant. However, it is interesting to know that

affidavit of Mr. Sayed, was sworn before Consulate General of India,

at Jeddah. Mr. Sayed admitted in cross-examination that the

affidavit was prepared by the Defendant and sent it to Jeddah for

affirmation. This admission by Mr. Sayed, in cross-examination is

sufficient to disbelieve his affidavit. In the backdrop of these facts,

reports of the Bailiff prepared in discharge and in performance of his

duty enjoyed by law, itself being "relevant fact", I have no reason at

all to disbelieve him. In the case of Heramba Nuth Bandopadhya

Vs. Surendra Nath Mittra, AIR 1919 Patna 454, Division Bench has

held that; "The peon's return in execution proceedings, being an

official record made by a public servant in the discharge of his

official duty, is admissible in evidence." Thus, having regard to the

facts of the case, the service of summon on the Defendant by

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substituted mode of service contemplated under Order-V Rule-20

cannot be faulted with. Even otherwise, it is not Plaintiff case that

the house, in which copy of writ of summons was pasted, does not

belong to him. Moreover, many more relatives are residing in the

same building, where summon was pasted. Additionally, once the

trial Court has recorded the satisfaction that Defendant was duly

served with writ of summons, in appeal this Court cannot interfere

with the satisfaction reached by the trial Court, unless it is shown it

was not founded on evidence which is not the case here. For all

that reasons, I do not see any reason to interfere with the impugned

order. Appeal is dismissed alongwith Civil Application.

                                               (SANDEEP K. SHINDE, J.)




Najeeb                                                                                    8/8