Bombay High Court
Ashok S/O Ganpat Gathe vs Mahesh S/O Laxmanrao Tahiliyani ... on 19 April, 2023
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.4214/2021
Ashok V Mahesh and another
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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. C.S. Samudra, Adv for petitioner.
Mrs. Bhondwe, ADv h/f Mr. V.S. Kukday, Adv for resp. Nos.1 and 2.
CORAM : AVINASH G GHAROTE, J.
DATE : 19-04-2023
Heard learned Counsel for the petitioner and
the learned Counsel for the respondent nos.1 and 2.
2. The petition challenges the order dated
30-09-14 passed in MJC No.10/13 (pg 43), whereby the
application for setting the aside exparte decree dated
19-04-12 passed in Spl.CS No. 30/11 (pg 43) and the
judgment in MCA No. No.22/17 dated 29-01-20 have
been rejected.
3. It is contended by Mr Samudra, learned
Counsel for the petitioner that the petitioner who was
the defendant in a suit for specific performance
instituted by the respondent was never served as a result
of which an exprate decree came to be passed on
19-04-12. The same having been put to execution in
Special Darkhast No.8/12, upon receipt of notice, the
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petitioner on 9-7-13 filed MJC No.10/13 for setting
aside the exprete decree under Order 9 Rule 13 of the
Code of Civil Procedure. To demonstrate that there was
no service, Mr Samudra, learned Counsel for the
petitioner invites my attention to the bailiff report in the
suit dated 5-09-11 (pg 132-A) and the report of the
Post Master on the subsequently issued suit summons
by RPAD (Pages 135 to 137). It is also contended that
the petitioner throughout has been residing at the same
address, which is demonstrated from the fact that the
notice of the execution was served upon the petitioner
on the same address. It is therefore submitted that the
impugned orders which do not take this position into
consideration cannot be sustained and are required to be
quashed and set aside.
4. Mrs Bhondwe, Advocate holding for Mr.
V.S. Kukday, Advocate for respondent nos. 1 and 2,
supports the impugned orders and contends that the
presumption of service, once the suit summon is sent by
RPAD upon the address of the petitioner, where he
claims to reside, would stand substantiated and the
impugned judgments therefore ought to be sustained.
5. It is not in dispute that at the first instance
the suit summons was issued to the petitioner/defendant.
The bailiff report at dated 05-09-2011 (pg 132-A)
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categorically states that upon inquiry at various places
the address of the petitioner was not discernible and
therefore since the complete address of the petitioner,
was not upon the suit summons, the same was returned
back. This report of the bailiff dated 05-09-11 was duly
certified by his superior by endorsement of the same
date. The suit summons thereafter were sent to the
petitioner/defendant by RPAD. As the acknowledgments
were not forthcoming, the trial Court had written a
communication on 21-11-11 to the concerned
Postmaster making an enquiry regarding the service to
which a reply was received dated 26-11-11 (pg 135) in
which it has been stated that the since there was no
response from the petitioner the envelope was sent back.
The copy of the envelope is at page 137 and does not
contain any endorsement of any intimation having been
given by the Postman to any one present on the address
to which the envelope was addressed. In absence of such
an endorsement, it was not permissible for the learned
trial Court to have arrived at a conclusion that the suit
summons was not claimed. There is thus a factual error
in the finding recorded by the Courts below regarding
service upon the petitioner/defendant, which position is
not borne out from the documents at Exhs- 23 and 24.
This position has not been taken into consideration by
the Courts below which has resulted in passing of the
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impugned judgments. Though, much time has flown,
however, on account of the aforesaid situation the
exparte decree dated 19-04-12 cannot be sustained on
that count alone. Any delay which has been occasioned,
the can be compensated by a suitable cost.
6. In view of the above position, the impugned
judgments are hereby quashed and set aside and
application and the MJC No.10/13 are hereby allowed
by setting aside the exparte decree dated 19-04-12,
however at a cost of Rs. 20,000/- to be deposited with
the High Court Bar Association, Nagpur, as a condition
precedent, which shall be used for the purchase of High
Speed Scanner Machine, as per the request of Mrs
Bhondwe, learned Counsel for respondent nos.1 and 2.
The costs shall be deposited by 26-04-2023 and receipt
of the same shall be placed on the record of this
petition.
7. Since the suit now stands restored and is of
the year 2011, the parties shall appear before the
concerned Court on 02-05-2023 without any further
notice, on which date the petitioner shall file his written
statement on record with all documents which he relies
upon.
8. The trial Court thereafter to proceed to
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frame the issues and decide the suit as expeditiously as
possible and in any case within a period of one year
from 02-05-2023.
JUDGE
Deshmukh
