Bombay High Court
Vitthal Rajaram Labade And Another vs Rajaram Shridhar Labade And Others on 22 August, 2025
2025:BHC-AUG:22931
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
938 SECOND APPEAL NO. 447 OF 2022
WITH
CIVIL APPLICATION NO. 4163 OF 2023
IN SA/447/2022
WITH
CIVIL APPLICATION NO. 11398 OF 2022
IN SA/447/2022
RAJARAM SHRIDHAR LABADE AND OTHERS
VERSUS
VITTHAL RAJARAM LABADE AND ANOTHER
Mr. V. P. Latange, Advocate for the Appellants
Mr. A. V. Patil (Indrale), Advocate for Respondent Nos.1 and 2.
CORAM : R. M. JOSHI, J.
DATE : 22nd AUGUST, 2025
P.C. :-
1. By consent of both sides, heard finally at the stage of
admission.
2. On the last of hearing, this Court has made it clear to the
learned Counsel for both sides that the following substantial question of
law arises in this Appeal.
"Whether the Appellate Court has committed error in dismissing
the Appeal in spite of the fact that notice was served upon
Appellant No.3 on wrong name and refusal thereof was treated to
be a good service?"
3. Record indicates that R.C.S. No. 335/2011 was filed by
Plaintiffs against three Defendants. Name of Defendants No.3
mentioned in the said suit as Sonali Dattatraya Nalawade. Since said
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name was mentioned in the title clause, notice came to be issued in the
said name. The notice was sent by speed post. It was refused by the
addressee on the ground that the name of the addressee is not the
same upon whom the service is sought to be effected. The Trial Court
has accepted this could be a good service and proceeded to decree the
suit by judgment and decree dated 10/04/2012.
4. Admittedly, Defendant Nos.1 and 2 were duly served in the
said suit, but they failed to cause appearance before the Trial Court.
Moreover, none of them preferred the Appeal before the First Appellate
Court till 30/08/2021. Since the Appeal was filed after around 9 years
and 3 months of passing of the judgment and decree, it was
accompanied by Application for condonation of delay which was
registered as Civil Misc. Application (Delay) No. 39/2021. Even perusal
of the said Application indicates that the knowledge of the Appellant of
the impugned judgment can be attributed to 02/08/2022. The learned
First Appellate Court dismissed the Appeal by holding that there was a
proper service of notice on all Defendants including Appellant No.3 i.e.
original Defendant No.3 in the suit.
5. Perusal of the record indicates that the name of Appellant
No.3 mentioned in the title of the suit is 'Sonali Dattatraya Nalawade'
though admittedly, her name is 'Sonali Dattatraya Labade'.
Consequently, the notice came to be issued by referring the incorrect
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name. In such circumstances, refusal on the part of the Defendant No.3
to accept the said notice cannot be treated as good service.
6. The First Appellate Court has failed to take into
consideration said admitted facts and erred in holding that Defendant
No.3 was duly served with notice and proceeded to dismiss the
Application for condonation of delay. Since the suit was for partition,
Defendant No.3 had right and interest in the said suit and she being
necessary party, suit could not have proceeded without hearing her.
Thus on the ground that the suit summons was not served in the right
name of the Defendant No.3, the judgment and decree needs to be set
aside irrespective of the fact as to the delay caused in preferring Appeal
against the said decree.
7. Though such concession can be given to the Defendant No.3
i.e. Appellant No.3 herein, admittedly, Appellate Nos.1 and 2 had
participated in the said proceeding before the Trial Court, however, they
choose not to challenge the said decree before the Appellate Court in
time. Since the suit is for partition, there is no propriety in allowing this
Appeal partially. Appellant Nos.1 and 2 are also necessary party to the
said suit since this Court is inclined to relegate the suit back to the Trial
Court for decision afresh, the Appeal of Appellant Nos.1 and 2 also
needs to be allowed.
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8. However, considering their conduct in remaining absent in
the suit so also not challenging the said judgment and decree passed by
the Trial Court in time, they are required to be saddled with cost of
Rs.10,000/- each. The total amount of cost of Rs. 20,000/- be paid to
the Plaintiff.
9. Learned Counsel for the Respondents has drawn attention of
the Court to the fact that during the pendency of present Appeal, the
Appellant No.1 has alienated the portion of the suit properties. In this
regard needless to say that law with regard to the lis pendens would
apply.
10. In view of above, this substantial question of law is
answered is affirmative. The impugned order passed in M.C.A. No.
39/2021 sands set aside. The said Application stands allowed.
Consequently, in the peculiar facts of case, Appeal also stands allowed.
The judgment and the decree passed by the Trial Court is set aside. The
R.C.S. No. 335/2011 is relegated back to the Trial Court for decision
afresh.
11. Since the suit is of year 2011, Trial Court is directed to
decide the same expeditiously and in any case within a period of six
months from today.
12. The payment of cost shall be condition precedent for
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entertaining the suit by the Trial Court.
13. Pending Civil Applications, if any, stand disposed of.
(R. M. JOSHI, J.)
ssp
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