Laxman Genba Bondre vs Sunil Shankar Patil (Gujar) And ...
2023 Latest Caselaw 1799 Bom

                          Digitally
                          signed by
                          VIDYA
                   VIDYA  SURESH
                   SURESH AMIN                                                6.AO181_2019.DOC
                   AMIN   Date:
                          2023.02.22
                          20:44:14
                          +0530


Vidya Amin

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION

                                       APPEAL FROM ORDER NO. 181 OF 2019
                                                     WITH
                                        CIVIL APPLICATION NO. 217 OF 2019

              Laxman Genba Bondre                                 ... Appellant/Applicant
                                Versus
              Sunil Shankar Patil (Gujar) & Ors.                  ...Respondents
              Mr. Abhijit B. Kadam for the appellant/applicant.
              Mr. Shivaji P. Yadav a/w. Mr. Omkar S. Mayekar i/b. Corps Legal for
              respondent nos. 1, 9A, 9B, 9C, 10 and 12.
                                   _______________________
                                 CORAM:        G. S. KULKARNI, J.

                                 DATED:        22 February 2023
                                    _______________________

              ORAL JUDGMENT

1. This Appeal from Order is filed assailing an order dated 9 August, 2018

passed by the learned District Judge-1 at Malshiras whereby Regular Civil

Appeal No. 30 of 2017 filed by respondent no. 1/defendant no. 2 was allowed

thereby the judgment and decree in Special Civil Suit no. 6 of 2013 passed by

learned Civil Judge Senior Division, Malshiras on 17 September, 2016 was set

aside and the suit was remanded to the trial Court for a fresh adjudication.

2. Learned counsel for the appellant has submitted that the only reason as

recorded by the learned District Judge in setting aside the judgment and decree

passed by the learned trial Judge was on the ground that respondent no.

1/defendant no. 2, (appellant in the appeal before the learned District Judge),

22 February 2023

6.AO181_2019.DOC

was not served with the suit summons. Learned counsel for the appellant has

placed reliance on the decision of a co-ordinate Bench of this Court in case of

Shobha wd/o. Suresh Kurekar vs. Mohan s/o. Suresh Kurekar, 2017 (3) Mh.

L.J. 334 in which this Court has observed that an appeal against an ex-parte

decree in terms of Section 96(2) of the Code could be filed only on two

grounds, namely, the material on record in the ex parte proceedings in the suit

by the plaintiff would not entail a decree in his favour; and, secondly, the suit

could not have been posted for ex parte hearing.

3. Learned counsel for the appellant submitted that admittedly in the

present proceedings, no steps were taken by respondent no. 1/defendant no. 2

to file any proceedings under Order IX Rule 13 of the Code for setting aside of

the ex-parte decree. His submission is that once a recourse is taken to the

provisions of Section 96(2) of the Code in filing Regular Civil Appeal assailing

the judgment and decree passed by the learned trial Judge, then the scope of

the proceedings was to assail the decree on merits and not on the limited issue

that respondent no.1/defendant no. 2 was not served by the suit summons. He

submits that the approach of the learned District Judge in remanding the

matter on a defective service of the suit summons could not have been adopted

being contrary to law.

22 February 2023

6.AO181_2019.DOC

4. Considering the contentions as urged on behalf of the appellant, I had

directed the learned advocate for the plaintiff to place on record a copy of the

appeal memo as filed by respondent no. 1 before the learned District Judge.

On a perusal of the appeal memo, it is quite clear that respondent no.

1/defendant no. 2 had not raised any ground in regard to the non-service of

the suit summons on him. However, learned District Judge has proceeded to

adjudicate the appeal only on the ground that respondent no. 1 was not served

with the suit summons and accordingly has remanded the proceedings to the

learned trial Judge.

5. Considering the above facts, in my opinion, the learned District Judge

has ex-facie erred in considering the grounds in the appeal memo. All the

grounds in the appeal memo were assailing the judgment and order passed by

the trial Court on merits, there was no ground taken in regard to service of suit

summons. Even assuming that such ground was to be raised, the learned

District Judge was required to adjudicate the appeal on its merits as the law

would mandate. In this view of the matter, the impugned order cannot be

sustained. It is required to be set aside with a further order that the learned

District Judge shall take up Regular Civil Appeal No. 30 of 2017 and decide

the same as expeditiously as possible on its own merits.

22 February 2023

6.AO181_2019.DOC

6. All contentions of the parties on merits of the Appeal are expressly kept

open.

7. Disposed of in the above terms. No costs.

8. In view of disposal of Appeal from Order, Civil Application would not

survive. It is accordingly disposed of.

9. At this stage, it is informed that the appellant is a senior citizen. The

appellant is permitted to make an application before the learned District Judge

praying for early hearing of the appeal.

(G. S. KULKARNI, J)

22 February 2023