Bombay High Court
Ajit Ratnakar Bagwe vs Prime Builders And 2 Ors on 15 January, 2024
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CHANDAN Date: 2024.01.16
18:02:10 +0530 1 APP-220.18 12-01 (1).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.220 OF 2018
IN
NOTICE OF MOTION NO.920 OF 2014
IN
SUIT NO.60 OF 1998
Ajit Ratnakar Bagwe : Appellant
(Original Defendant No.2)
Vs.
Prime Builders & ors. : Respondents
-----
Dr. Milind Sathe, Senior Advocate a/w Mr. Bhushan Deshmukh
and Mr. Amar Mishra i/by SRM Law Associate for the Appellant.
Mr. V. Y. Sanglikar for Respondent No.1.
-----
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : 15th JANUARY 2024
P.C.
1. The present Appeal impugns an Order dated 21st
February 2018 by which the Appellant's Notice of Motion for
setting aside the ex-parte decree dated 11th August 2009 passed
in the captioned Suit came to be dismissed.
LGC 1 of 20
2 APP-220.18 12-01 (1).doc
2. Before adverting to the rival contentions, it is useful
to first set out a few facts which will give context to the
challenge in the present Appeal.
i The captioned Suit seeks specific performance of a
Memorandum of Understanding ("MOU") for sale of a
plot of land being Plot No.32 Dadar-Matunga Estate CTS
admeasuring about 821.07 Sq. Mt. entered into between
Respondent No. 1 i.e. the Plaintiff in the captioned Suit
and one Usha Bagwe i.e. the Original Defendant in the
captioned Suit.
ii. Usha Bagwe passed away on 9th October 2001 leaving
behind her brother one Ratnakar Bagwe as her legal
heir. Respondent No. 1 therefore after the demise of
Usha Bagwe amended the plaint to bring Ratnakar
Bagwe on record in place and stead of Usha Bagwe.
iii. Ratnakar Bagwe then passed on 29th May 2003 leaving
behind him the following three persons as his legal heirs
LGC 2 of 20
3 APP-220.18 12-01 (1).doc
(a) Rajesh Ratnakar Bagwe (b) Suman Ratnakar Bagwe
and (c) Ajit Ratnakar Bagwe i.e. the Appellant.
Respondent No. 1 therefore took out a Chamber
Summons (being Chamber Summons No.1508 of 2005)
seeking to bring on record the legal heirs of Ratnakar
Bagwe as party Defendants to the Suit.
iv. The Chamber Summons was served upon the Appellant
and Respondent No. 2 and 3 under cover of the
Respondent No.1's Advocate's letter dated 6 th December
2005. It is useful at this stage to set out that the said
letter had two addresses namely (a) Ghatkopar and (b)
Dadar. Service of the Chamber Summons was accepted
by the Appellant as the constituted attorney of
Respondent No. 2 and 3. The Chamber Summons then
came to be allowed by an Order dated 27th June 2006
which reads thus viz.
"Heard Mr. Patil for plaintiff and Mr. Saraf for
defendant. Perused the chamber summons,
proposed amendments and affidavit in
LGC 3 of 20
4 APP-220.18 12-01 (1).doc
support. For the reasons set out therein, delay
of 95 days is condoned. Chamber Summons
is made absolute in terms of prayer clauses
(b) an (c). Amendments to be carried out
within two weeks from today. Amended copy
of plaint to be served on parties within four
weeks thereafter. Written statement/additional
W.S. to be filed within twelve weeks from the
date of receipt of amended copy of plaint."
3. It is useful at this stage to also note that the
addresses of the newly impleaded Defendants to the Suit i.e.,
the Appellant and Respondent No. 1 and 2 were all shown as
Ghatkopar in the cause title of the Plaint. It appears that
thereafter, Respondent No. 2 and 3 were served with a copy of
the Plaint. Insofar as the Appellant was concerned, two attempts
to serve the Appellant at Dadar were made, however the packets
were returned unclaimed. Subsequently, a copy of the Writ of
Summons was sent by RPAD to Appellant at the Ghatkopar
address which was returned with the remark "unclaimed".
LGC 4 of 20
5 APP-220.18 12-01 (1).doc
4. Thereafter, by and Order dated 11th August, 2009 the
Suit came to be decreed ex parte after recording that all the
Defendants had been duly served.
5. The Appellant then filed the captioned Notice of
Motion under the provisions of Order IX Rule 13 1 of the Code of
Civil Procedure, 1908 (CPC) seeking to set aside the ex parte
Decree on the ground that the Appellant had never been served
with a copy of the Writ of Summons. The Notice of Motion
however come to be dismissed by the Impugned Order and it is
thus that the present Appeal came to be filed.
Submissions of Dr. Sathe on behalf of the Appellant.
6. Dr. Sathe Learned Senior Counsel appearing on behalf of
1 13. Setting aside decree ex parte against defendant.--In any case in which a decree is
passed ex parte against a defendant, he may apply to the Court by which the decree was
passed for an order to set it aside; and if he satisfies the Court that the summons was
not duly served, or that he was prevented by any sufficient cause from appearing when
the suit was called on for hearing, the Court shall make an order setting aside the decree
as against him upon such terms as to costs, payment into Court or otherwise as it thinks
fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as
against such defendant only it may be set aside as against all or any of the other
defendants also:
Provided further than no Court shall set aside a decree passed ex parte merely on the
ground that there has been an irregularity in the service of summons, if it is satisfied that
the defendant had notice of the date of hearing and had sufficient time to appear and
answer the plaintiff's claim.
LGC 5 of 20
6 APP-220.18 12-01 (1).doc
the Appellant at the very outset submitted that the present case,
was not one of irregular service of the writ of summons but was
infact a case of complete non-service of the writ of summons as
required in law. He went on to submit that the non-service upon
the Appellant was infact deliberate and calculated since
Respondent No. 1 was well aware that the Appellant had his
address in Dadar and not Ghatkopar.
7. Dr. Sathe then, invited our attention to the Order
dated 27th June 2006 by which the Chamber Summons was
allowed and pointed out that the appearance of the Learned
Advocate who had appeared on that date was shown "for
Defendant" and not on behalf the Respondents to the Chamber
Summons i.e. the Appellants and Respondent No. 2 and 3. That
apart, he submitted that even if the appearance of the Advocate
was on behalf of the Respondents to the Chamber Summons,
the Order specifically directed that the amended Plaint was to be
served on all the parties within four weeks and that the order did
not record that service of the writ of summons was waived.
LGC 6 of 20
7 APP-220.18 12-01 (1).doc
Basis this he submitted that it was incumbent upon Respondent
No. 1 to have ensured that each of the newly added Defendants
were duly served which he submitted that Respondent No. 1 had
not done. He pointed out that since the packets of service upon
the Appellant were returned unclaimed, it was thus incumbent
upon Respondent No. 1 to have complied with the procedure as
prescribed under Order 5 Rule 172 of the Code of Civil Procedure,
1908 ('CPC') by affixing the copy of summons etc. He submitted
that this was admittedly not done and thus Respondent No. 1
had not compiled with the procedure prescribed for service of
the Summons at all and was not a case where there was mere
irregularity in complying with the procedure prescribed.
8. Dr. Sathe, then in support of his contention stated that
2 17. Procedure when defendant refuses to accept service, or cannot be found.--
Where the defendant or his agent or such other person as aforesaid refuses to sign the
acknowledgment, or where the serving officer, after using all due and reasonable
diligence, cannot find the defendant, 2[who is absent from his residence at the time when
service is sought to be effected on him at his residence and there is no likelihood of his
being found at the residence within a reasonable time] and there is no agent empowered
to accept service of the summons on his behalf, nor any other person on whom service
can be made, the serving officer shall affix a copy of the summons on the outer door or
some other conspicuous part of the house in which the defendant ordinarily resides or
carries on business or personally works for gain, and shall then return the original to the
Court from which it was issued, with a report endorsed thereon or annexed thereto
stating that he has so affixed the copy, the circumstances under which he did so, and the
name and address of the person (if any) by whom the house was identified and in whose
presence the copy was affixed.
LGC 7 of 20
8 APP-220.18 12-01 (1).doc
failure to serve the Appellant was willful and deliberate and
pointed out the following, viz
i. That Respondent No. 1 was well aware that the address
of the Appellant was "Dadar", despite which the same
was stated to be "Ghatkopar" in the Plaint.
ii. That a copy of Chamber Summons was infact served at
the Dadar address and the letter under cover of which
the same was served specifically mentioned the "Dadar"
in addition to the "Ghatkopar" address.
iii. That Respondent No. 1 had specifically admitted in the
Affidavit in Reply, filed to the captioned Notice of Motion
that they learnt that the Defendants were residing at
Dadar.
iv. That instead of taking under the provisions of Order 5
Rule 17 of the CPC, to complete service upon the
Appellant, Respondent No.1 deliberately sent the Writ of
LGC 8 of 20
9 APP-220.18 12-01 (1).doc
Summons to the Ghatkopar address by Registered Post
only to obtain the 'unclaimed' endorsement.
Basis the above, he submitted that there was no manner of
doubt that the Respondent No.1 had deliberately not served the
Appellant with either the writ of summons or the amended
Plaint.
9. Dr. Sathe then submitted that the Learned Single
Judge had solely on the basis of preponderance of probability
held that the Appellant had knowledge of the Suit since
Respondent No. 2 and 3 were served and the Appellant was
stated to be the constituted attorney of Respondent No. 2 and 3
and they were all close family members. He firstly submitted
that no such power of attorney was even produced by
Respondent No. 1 but even assuming so, the same would not
dispense with the requirement of Respondent No. 1 having to
serve the Appellant independently. He then placed reliance upon
a judgement of the Hon'ble Supreme Court in the case of
LGC 9 of 20
10 APP-220.18 12-01 (1).doc
Sushil Kumar Sabharwal Vs. Gurpreet Singh and others 3 to
submit that what Respondent No. 1 was required to establish to
the satisfaction of the Court, was that the Appellant (a) had
knowledge of "the date of hearing" and (b) had "sufficient time
to appear and answer the claim" of the Plaintiff and not merely
knowledge of "the pendency of suit". Basis this he submitted
that merely because the Appellant had accepted service of the
Chamber Summons and could be stated to have knowledge of
"the filing of the Suit", the same would not dispense with the
requirement of service Writ of Summons by which the Appellant
would have been given details of both date of hearing of the Suit
as also time to appear and answer the Plaintiffs claim in the Suit.
He reiterated that in this case, admittedly service of the Writ of
Summons had not been waived and the order allowing the
Chamber Summons had specifically directed service of the
amended Plaint on all Parties. He also submitted that even
assuming, since no such power of attorney/authority had been
produced, the same would not in any manner make a difference
to requirement of having to serve the Appellant individually.
3 (2002) 5 SCC 377
LGC 10 of 20
11 APP-220.18 12-01 (1).doc
10. Basis the above, Dr. Sathe submitted that the present
Appeal was required to be allowed and ex-parte decree be set
aside.
Submissions of Mr. Sanglikar on behalf of Respondent
No.1.
11. Per contra, Mr. Sanglikar, learned counsel appearing
on behalf of Respondent No.1, invited our attention to the
second proviso4 to Order XI Rule 13 of the CPC (as applicable to
Bombay) and pointed out that no ex-parte decree shall be set
aside if the Court was satisfied that the Defendant knew, or but
for his willful conduct would have known , of the date of hearing
of the Suit. He submitted that in the facts of the present case,
there could be no manner of doubt that the Appellant was aware
of the Suit and that if the Appellant was not aware of the date of
the hearing of the Suit, then the same was only on account of
his willful conduct.
4 Provided also that no such decree shall be set aside merely on the ground of irregularity
of service of summons, if the Court is satisfied that the defendant knew, or but for his
wilful conduct would have known, of the date of hearing in sufficient time to enable him to
appear and answer the plaintiff's claim.
LGC 11 of 20
12 APP-220.18 12-01 (1).doc
12. In support of his contention that it was only on
account of the Appellant's willful conduct that the Suit was
decreed ex parte, he placed reliance upon the following, viz.
i. That notice of the Chamber Summons was accepted by
the Appellant on behalf of Respondent No. 2 and 3.
ii. That the Appellant and Respondent No. 2 and 3 were
duly represented by an Advocate at the hearing of the
Chamber Summons and was thus aware of the same
and amendment which was sought for.
iii. That the Appellant and Respondent No. 2 and 3, both of
whom were duly served were close family members and
the Appellant was infact the constituted attorney of
Respondent Nos. 2 and 3.
Basis the above he submitted that if the Appellant did not know
of the hearing of the Suit, it was only on account of his willful
LGC 12 of 20
13 APP-220.18 12-01 (1).doc
conduct. He thus submitted that it was not open for the
Appellant now seek to have the decree set aside on the ground
of non-service. In support of his contention that in the facts of
the present case proof of service of summons could be
dispensed with, he placed reliance upon a judgment of the
Hon'ble Supreme Court in the case of Sunil Poddar Ors. Vs.
Union Bank of India5 and a judgement of this Court in the case
of Meena Ramesh Lulla & Ors Vs. Omprakash A Alreja &
Ors6.
13. Mr. Sanglikar then submitted that the Notice of Motion
seeking to set aside the ex-parte decree was itself barred by
limitation having been filed after a period of over a period of four
years from the date of the decree and such delay could be
condoned by the Court only if the Court was satisfied that the
party seeking condonation of delay had made out a case of
sufficient cause and not otherwise. In the present case he
submitted, by inviting our attention to the Appellant's Affidavit in
Support of the Notice of Motion that absolutely no case of
5 2008 2 SCC 326
6 Order dated 21/09/2011 in Appeal No.616 of 2011.
LGC 13 of 20
14 APP-220.18 12-01 (1).doc
sufficient cause was made out therein. He then in support of his
contention that a party was not entitled to the condonation of
delay as a matter of right and same was entirely within the
discretion of the Court to be exercised only after sufficient cause
was shown, placed reliance upon a judgement of the Hon'ble
Supreme Court in the case of Ramlal and others Vs. Rewa
Coalfields Ltd7. He submitted that in the present case it was
not open for the Appellant to contend that the Appellant was
unaware of the ex-parte decree since there were other
testamentary proceedings pending in this Court in which the
same advocate was representing the Appellant.
14. Mr. Sanglikar then in conclusion submitted that the
Impugned Order was passed by the Learned Single Judge by
exercising his discretion and such discretion having been
exercised judiciously was not liable to set aside and/or interfered
with in appeal. He then placed reliance upon the judgements of
the Hon'ble Supreme Court to in the case of Wander Ltd Vs.
Antox India P. Ltd.8 and Manjunath Anandappa Urf
7 AIR 1962 SCC 361
8 Aironline 1990 SC 156
LGC 14 of 20
15 APP-220.18 12-01 (1).doc
Shivappa Hansi Vs. Tammanasa and others9 to submit that
an order passed by a Learned Single Judge which is passed by
exercising his discretion was not liable to be set aside unless it
was demonstrated that the exercise of such jurisdiction was
arbitrary, capricious, perverse or where the Court had ignored
settled principles of law. He pointed out that in the present case
it was not even the case of the Appellant that the Learned Single
Judge had acted in an arbitrary, capricious or pervese manner or
had ignored settled principles of law. Basis this, he submitted
that the Appeal must necessarily be dismissed.
15. After having heard Learned Counsel, what emerges
for our consideration in the facts of the present case is whether
(a) the Appellant was infact never served with the Writ of
Summons and/or amended Plaint or (b) the Appellant but for his
willful conduct would have known, the date of hearing of the Suit
and thus could not make a grievance of non-service of the writ
of summons. In order to decide this, we must note the following,
viz.
9 AIR 2003 SC 1391
LGC 15 of 20
16 APP-220.18 12-01 (1).doc
A. First, Order 5 the CPC mandates that service of a
Writ of Summons on the Defendant and in cases
where there are several Defendants10 service of
summons shall be made on each Defendant. Thus,
unless notice of the Writ of Summons was expressly
waived, it was incumbent upon Respondent No. 1 to
have served the Writ of Summons/amended Plaint
upon all the Defendants to the Suit, individually. In
the present case, it is not in dispute that the
Appellant had not waived notice of the Writ of
Summons. Thus, the Writ of Summons would have to
be served in accordance with the provisions of the
CPC, more particularly, Order 5. This mandatory
requirement was admittedly not complied with in the
present case.
B. Second, by the Order dated 27th June 2006
Respondent No. 1 was specifically directed to serve
10 11. Service on several defendants.-- Save as otherwise prescribed, where there
are more defendants than one, service of the summons shall be made on each defendant
LGC 16 of 20
17 APP-220.18 12-01 (1).doc
the amended copy of the Plaint on all parties. While
Respondent No. 1 is stated to have served
Respondent No. 2 and 3, qua the Appellant,
admittedly, the packets remained unclaimed. Given
this, it was then incumbent upon Respondent No. 1 to
have as per the provisions of Order 5 Rule 17 of the
CPC to affix the copy of the summons on the outer
door or some other conspicuous part of the house in
which the Appellant ordinarily resided or carried on
business or personally worked for gain. Again,
Respondent No. 1 did not do so. What is indeed
curious and lends credence to the submission of the
Appellant that the failure to serve the Appellant was
willful and deliberate is the fact that Respondent No. 1
has admitted knowledge of the fact that the
Appellant's address was at Dadar yet sent the RPAD
packet to the Ghatkopar address.
C. Third, even accepting the fact that Appellant had
LGC 17 of 20
18 APP-220.18 12-01 (1).doc
appeared through Counsel at the time when the
Chamber Summons was allowed, would not in any
manner dispense with the requirement of service of
the Writ of Summons, unless such service was
expressly waived. The Hon'ble Supreme Court has in
no uncertain terms held in the case of Sushil Kumar
Sabharwal (supra) that what is essential is the
Defendant had knowledge of the " date of hearing"
and not merely knowledge of "the pendency of suit".
In the facts of the present case, the Learned Single
Judge has entirely on the basis of preponderance of
probabilities concluded that the Appellant had notice
of the pendency of the Suit and the dates of hearing.
We find that it is here that the Learned Single Judge
has fallen into error since there is absolutely no
material placed before us that the Appellant had
knowledge of the "dates of hearing". Nothing has
been placed on record to show that after the Chamber
Summons was allowed, the Appellant either engaged
LGC 18 of 20
19 APP-220.18 12-01 (1).doc
and advocate or appeared in any interlocutory
proceedings or the Suit itself. The only stage where
the Appellant is stated to have appeared is at the
hearing of the Chamber Summons, which is
admittedly pre suit.
16. Hence, for the aforesaid reasons, we find that in the
present case, there has been no service of the Writ of Summons
upon the Appellant as contemplated under Order 5 of the CPC at
all. The case is thus not one of mere irregularity in service but is
one of non-service of the Writ of Summons since Respondent
No. 1 has (a) admittedly not complied with the procedure
prescribed in Order 5 of the CPC for service (b) failed to
establish that the Appellant had knowledge of the " date of
hearing" and (c) failed to show that the Appellant had either
appeared or instructed an Advocate to appear in the Suit or in
any interlocutory proceeding in the Suit. Thus, the judgements
in the case of Meena Ramesh Lulla and Sunil Poddar (supra)
upon which strong reliance was placed by Respondent No. 1
LGC 19 of 20
20 APP-220.18 12-01 (1).doc
would be entirely inapplicable to the facts of the present case.
Similarly, the Learned Single Judge having committed an error in
law to hold that the Appellant was duly served. Hence, the
judgements in the case of Wander Ltd (supra )and Manjunath
Anandappa Urf Shivappa Hansi (supra) upon which reliance
was placed would also not apply.
17. Resultantly, the Appeal is allowed. The Impugned
Order is set aside and consequently, the order dated 11 th August
2009 is also set aside. The Suit to be placed under the caption
"For Directions" before the Learned Single Judge before whom
the Suits of the year 1998 are listed for final hearing to enable
the Learned Single Judge to issue the necessary directions.
Given that the Suit is of the year 1998, the hearing of the Suit is
expedited.
18. There shall be no order as to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
LGC 20 of 20
