Bombay High Court
Mr. Vinayak Kaluram Halande vs Mr. Tukaram Yashwant Malusurve And Ors on 30 July, 2025
2025:BHC-AS:32246
3-WP-4429-2013.doc
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4429 OF 2013
WITH
INTERIM APPLICATION STAMP NO. 25635 OF 2025
Mr. Vinayak Kaluram Halande .. Petitioner
Versus
Mr. Tukaram Yashwant Malusurve & Ors. .. Respondents
Mr. Sidheshar N. Biradar for petitioner.
Ms. Tejas Kapre i/by Adv. J. S. Kapre for respondent nos.1 and
2.
CORAM: ALOK ARADHE, CJ.
DATE: 30th JULY, 2025
ORAL ORDER:
1. Interim Application Stamp No. 25635 of 2025 is filed for
treating the respondent nos.9, 10 and 11, as legal
representatives of deceased respondent no.8.
2. For the reasons mentioned in the application, duly
supported by the affidavit, interim application is allowed in
terms of prayer clauses (a) and (b). Interim Application is
disposed of accordingly.
3. In this petition under Article 227 of the Constitution of
India, the petitioner has assailed the validity of the order
dated 7th March, 2013 passed by the Civil Judge, Junior
Division, Pune by which the application for condonation of
delay of 104 days in filing an application for setting aside ex-
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parte decree has been rejected on the ground that the
petitioner has failed to demonstrate the existence of sufficient
cause in failing to file an application within a period of
limitation.
4. Facts giving rise to filing of the present writ petition, in
nutshell, are that respondent nos.1 and 2 filed Regular Civil
Suit No. 809 of 2009 against the petitioner and respondent
nos.3 to 11 seeking relief of cancellation of the sale deed.
5. In the aforesaid civil suit, the petitioner could not be
served as the petitioner was not residing at the address
mentioned in the summons. Thereafter the respondent nos.1
and 2 took out an application seeking substitute service of
summons by publication, which was allowed by the trial court
by an order dated 3rd March, 2010. The summons was
published in the daily newspaper Prabhat on 29th March, 2010.
The petitioner was required to appear before the Court on 15 th
April, 2010. The petitioner did not appear. The suit filed by the
respondent nos.1 and 2 was, therefore, decreed on 8 th
February, 2011 ex-parte.
6. The petitioner thereafter filed an application for setting
aside the ex-parte decree along with application for
condonation of delay of 104 days in filing the application
under Order IX Rule 13 of the Civil Procedure Code, 1908
(CPC). The trial court vide impugned order has rejected the
aforesaid application. Hence, this writ petition.
7. Learned counsel for the petitioner submitted that
summons was not served as it was sent on the wrong address
where the petitioner was not residing. It is further submitted
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that the brother of the petitioner applied for copy of mutation
entry which was received by him in second week of June,
2011. Thereupon, the petitioner learnt about the ex-parte
decree. The petitioner, therefore, filed an application for
obtaining certified copy of the ex-parte judgment and decree,
which was delivered to him on 29 th June, 2011. Thereafter the
application under Order IX Rule 13 of the CPC along with
application for condonation of delay.
8. On the other hand, learned counsel for the respondents
has supported the impugned order passed by the trial court.
9. I have heard the learned counsel for the parties at
length and perused the record.
10. The suit was decreed ex-parte on 8th February, 2011
where the application for setting aside ex-parte decree was
filed on 4th July, 2011. The petitioner/defendant was duly
served with the summons of the suit by way of publication.
However, the petitioner did not choose to appear before the
trial court. It is also pertinent to mention that the petitioner
did not lead evidence to show that he derived the knowledge
of ex-parte judgment and decree in June, 2011. The trial
court on the basis of material available on record has found
that no sufficient cause was made out for condonation of
delay.
11. The order passed by the trial court neither suffers from
jurisdictional infirmity as well as error apparent on the face of
the record warranting interference of this Court in supervisory
jurisdiction under Article 227 of the Constitution of India.
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12. In the result, writ petition fails and is hereby dismissed.
13. Needless to state that the petitioner, if so advised, would
be at liberty to file regular civil appeal against the ex-parte
judgment and decree.
(CHIEF JUSTICE)
