Shri. Gopichand Gopal Utekar vs Mr. Vasant Vasudeo Sawant And Anr
2023 Latest Caselaw 11373 Bom

2023:BHC-AS:33817

                                                                      902a. FA 1021-23.doc




                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                 FIRST APPEAL NO.1021 OF 2023
                                            WITH
                             INTERIM APPLICATION NO.2272 OF 2023

             Shri Gopichand Gopal Utekar,
             Age-59 Years, Occ. Service,
             Indian Inhabitant,
             presently residing at Room
             No.LG-185/1/2,
             Indira Nagar, Sunder Baug, Kamani,
             Kurla (West), Mumbai-400 070.

             R/at Room No.34, Plot No.76,
             Shradha Co-op. Housing Soc.
             Gorai No.1, Borivali (West),
             Mumbai.                                ... Appellant/Org.Defendant
                        Versus
             1. Mr. Vasant Vasudeo Sawant
             Age 45 years, Occ. Not known
             Indian Inhabitant.

             2. Mrs. Sandhya Jayant Asade @
             Sandhya Vasudeo Sawant
             Age - 53 years, Occ. Not known
             Indian Inhabitant,
             Both are residing at 31/2, Gajanan
             Rahivasi Sangh, Near Acharya College
             Khardeo Nagar, Chembur,
             Mumbai-400 071                           ...     Respondents

                                           ***
             Mr. Balwant Salunkhe for the Appellant/Applicant.

             Mr. Rajesh Singh a/w Mr. Hitesh Jain for Respondent Nos. 1 and 2.
                                           ***




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                        CORAM    : NITIN B. SURYAWANSHI, J.

              RESERVED ON        : 25th OCTOBER 2023


              PRONOUNCED ON : 6th NOVEMBER 2023


JUDGMENT :

. Heard. Admit. Taken up for final hearing with consent of

parties.

2 The Appellant/Defendant is aggrieved by the judgment and

decree passed by the City Civil Court for Greater Bombay in Short

Cause Suit No.1069 of 2016. Respondents/Plaintiffs have filed the

said Suit against the Appellant/Defendant for declaration, possession

and injunction in respect of Room NO.LG-185/1/2, Indira Nagar,

Sunder Baug, Kamani, Kurla (West), Mumbai-400 070. In the suit it

is contended that in the year 2004, Plaintiff No.2 was in need of

financial help, therefore, he through his sister approached the

Defendant. Defendant agreed to give loan of Rs.1,00,000/- to

Plaintiff No.2 on 4 per cent interest per month. Loan amount was

accepted by Plaintiff No.2 in two installments, after deducting the

monthly interest from the said amount. Plaintiff No.2 was regularly

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paying the installment of Rs.4,000/- with interest to Defendant and

had repaid substantial loan amount. However, in 2005, due to

unavoidable circumstances, she was unable to pay installments to the

Defendant.

3 On 11 June 2005, Defendant and his family members forced

Plaintiff No.2 to place original documents of some immovable

property with them. At the request of Plaintiff No.2, Plaintiff No.1

delivered the original documents of the suit premises to the

Defendant. On 13 June 2005, Plaintiffs were forced by the

Defendant to sign on typed papers, on the pretext that the same are

required for loan purpose. On 13 December 2003, Defendant and his

brother obtained signatures of the Plaintiffs on some documents

under coercion. It was assured that documents will not be misused

and would be returned after paying the balance amount. However,

Defendant by misusing the documents, illegally and forcibly took

possession of the suit premises, when Plaintiff No.1 was out of the

premises. Plaintiffs, therefore, claimed that they never executed

agreement dated 13 June 2005 or agreement for sale or power of

attorney and affidavit dated 13 December 2005 in favour of

Defendant and that they have not received any consideration amount

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for the suit premises.

4. While passing ex parte judgment, Trial Court has held that

"Despite of service of writ of summons, the defendant failed to

appear, therefore, suit proceeded ex parte against the defendant".

By judgment and decree dated 4 July 2022, Suit is decreed ex

parte. Hence, the present Appeal.

5. Heard learned Counsel for the Appellant and learned Counsel

for Respondent Nos. 1 and 2. Perused documents placed on record

and the affidavit-in-reply filed by the Respondents and citations

relied upon by both sides.

6. It is a matter of record that Appellant had earlier filed S.C.

Suit No.785 of 2011 against the Respondents for injunction and

declaration in respect of the suit premises claiming that the suit

premises is acquired from the Respondents by sale deed dated 13

December 2005. After filing of S.C. Suit No.1069 of 2016,

Respondents have moved Notice of Motion No.3874 of 2016 in S.C.

Suit No.785 of 2011 before Trial Court seeking rejection of the plaint

under Order VII Rule 11 of the Code of Civil Procedure. Notice of

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Motion was rejected by Trial Court vide Order dated 30 November

2018. In this Order, reference of S.C. Suit No.1069 of 2016 is made.

7. It also appears from the record that transfer application was

filed by the Respondents seeking transfer of S.C. Suit No.785 of 2011

to the Court, which was hearing S.C. Suit No.1069 of 2016, the same

was allowed on 28 September 2016. It is, therefore, clear that both

suits were being heard by the same Court. S.C. Suit No.785 of 2011

filed by the Appellant was dismissed for non-appearance of the

Plaintiffs on 28 December 2022. It is a matter on record that on 4

July 2022, ex parte order is passed against the Appellant in S.C. Suit

No.1069 of 2016. It is, therefore, clear that at the time of passing

of ex parte order, his S.C. Suit No.785 of 2011 was pending.

8. Roznama of S.C. Suit No.1069 of 2016 indicates that writ of

summons was issued to Appellant on 22 June 2016. An affidavit of

service of writ of summons on Appellant is filed by Clerk of

Advocate for the Respondents. In the roznama dated 22 July 2019,

Appellant's appearance is recorded by Trial Court.

9.          However, thereafter in    Roznama dated 20 March 2021, it is


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recorded that :-

"Business : Plaintiff present. On going through the file the affidavit of service of writ of summons is by the clerk of the adv. for plaintiff. Application of plaintiff is not found to show that plaintiff sought permission to serve the writ of summons to the defendant through their end. As per order V of CPC there is a procedure to serve the writ of summons to the defendant. Though the suit has proceeded ex parte against defendant as this lacuna is found, advocate for plaintiff to argue on the point of service of writ of summons to the defendant. Adjd for arguments to 06/04/2021. Next Purpose :

ARGUMENTS Next Hearing Date : 06-04-2021.

COURT 20 ASST. SESSIONS JUDGE"

Thereafter, on 27 September 2021, it is observed that :-

"Business : Adv. Rajesh Singh present for Plaintiff. None present for Defendant. Head Ld. Adv for pltff. Vide order dt.20/03/21 the court had asked the pltff to point out that how the private service of summons should be treated as valid service for proceeding ahead against deft. Today the Ld. Adv for pltff pointed out that though there was private service of notice/summons, the deft though not appeared earlier, he was well aware of the stages of the suit. On dt.22/07/19 his presence has been noted by the Court. Then on 14/10/19 also note of his presence of 22/07/19 was taken. It is not that after service of summons, the defendant not at all turned up in the suit. Therefore as the suit has been proceeded

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exparte against the deft, in absence of any steps on the part of deft, the suit be proceeded further. Matter adj. To 11/10/2021 for Arguments. Next Purpose : ARGUMENTS Next Hearing Date : 11-10- 2021.

Court 59 ADDL SESSIONS JUDGE"

10. From the aforesaid roznamas, it is clear that suit summons was

not served on the defendant, as per the procedure laid down in

Order V of the Code of Civil Procedure, 1908. No application

appears to be filed by the Respondents to seek permission of Trial

court to serve writ summons on the Appellant as per Order V of the

Code of Civil Procedure, 1908. Respondents were called upon to

argue on this aspect on the next date. On that date, Trial Court has

proceeded to accept Respondents' contention that though there was

private service of summons, Appellant/defendant did not appear

earlier, he was well aware about stages of suit and his presence was

noted by Trial Court on 22 July 1990. Accepting this submission,

Trial Court proceeded ex parte against Appellant as per earlier order

and proceeded to pass ex parte decree. Therefore, there appears

substance in the contention of Applicant that as both suits were

clubbed together and as he was attending his S.C. Suit No.785 of

2011, his appearance is recorded in S.C. Suit No.1069 of 2016. It is

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not in dispute that both suits were before the same court.

11. Appellant's substantial rights in the suit premises are involved

in the matter and Appellant had nothing to gain by not causing his

appearance in the suit filed by Respondents. A fair opportunity

needs to be given to the Appellant to contest the suit on merits. Ex

parte decision given against the Appellant, therefore, cannot be

sustained.

12. Learned Counsel for the Respondents by relying on the decision

in the case of Suresh Vs. Municipal Corporation of Greater Mumbai 1,

submitted that Appellant was duly served and it was recorded in

roznama. In this ruling, it is held that no separate summons was

required to be served to respondents, as parties represented through

their advocates. This ruling is distinguishable on facts and is not

applicable to the present case. In this case appellant has neither

appeared himself nor caused appearance through advocate.

13. By relying on the decision in the case of S.P. Chengalvaraya

Naidu (dead) by L Rs. Vs. Jagannath (dead) by L Rs.2 it is submitted 1 AO 807/11 in Notice of Motion No.1334/09 in LC Suit No.2802/09 decided on 23.10.2013 2 AIR 1994 SC 853

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by Respondents that Appellant had contested transfer application and,

therefore, he was having knowledge of filing of S.C. Suit No.1069

of 2016 and by suppressing this fact, Appellant has played fraud.

This argument cannot be accepted and this Court is inclined to

accept Appellant's contention that he was under impression that hew

as attending his own suit and hew as to gain nothing by avoiding to

attend substantive suit filed by the Respondents against him.

In this case, according to the Respondents, Appellant was

aware of filing of the Suit as the same was referred in the transfer

application, which as attended by the Appellant and, therefore, the

Appellant is guilty of practicing fraud on Court by suppressing the

said fact. This argument cannot be accepted in peculiar facts of the

present case, as the contention of the Appellant that he was under

impression that he was attending his own suit is acceptable and he

was gaining nothing by avoiding in not attending the substantive suit

filed by the Respondents.

14. Since Appellant has been denied a fair opportunity to contest

the Suit on merits, the ex parte judgment and decree dated 4 July

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2022 passed by the Trial Court in S.C. Suit No.1069 of 2016

is unsustainable and same was liable to be considered.

Hence, the following Order : -

               (i)      First Appeal is allowed.


              (ii)      Judgment and decree dated 4 July 2022 passed by the Trial
                        Court is hereby quashed and set aside.     S.C. Suit No.1069 of
                        2016 is remitted back to the Trial Court for     decision afresh
                        on merits.


               (iii)     The pending application, if any, shall stand disposed of.

At this stage, at the request of learned Counsel for the Respondents, this judgment is stayed for a period of four weeks from today.

                                                             (NITIN B. SURYAWANSHI, J.)




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Signed by: Rajesh Chittewan
Designation: PA To Honourable Judge
Date: 06/11/2023 18:20:50