Gujarat High Court
Lh Of Lt. Lalitaben Rasiklal Gandhi vs Lh Of Thakorbhai Ishwarbhai Patel on 8 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 1 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 1 of 2024
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LH OF LT. LALITABEN RASIKLAL GANDHI
Versus
LH OF THAKORBHAI ISHWARBHAI PATEL
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Appearance:
MR L G SUDANI(13710) for the Appellant(s) No. 1,1.1,1.2
MR. RAJAN J PATEL(6775) for the Appellant(s) No. 1,1.1,1.2
for the Respondent(s) No. 1.1,2,3,4,5
MR NK MAJMUDAR(430) for the Respondent(s) No. 1,1.2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/01/2024
ORAL ORDER
1. Heard learned advocate Mr. Rajan J. Patel for appellants
and learned advocate Mr. Rohan N. Majmudar for learned
advocate Mr. N. K. Majmudar for respondent Nos.1 and 1.2.
2. Upon the consent and request of learned advocates
appearing for the respective parties, this matter is taken up for
final hearing.
3. By way of this Appeal from Order, the appellants have
challenged the order dated 04.12.2023 passed by the learned
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Auxiliary Chamber Judge, City Civil Court, Ahmedabad in Civil
Miscellaneous Application No.839 of 2022, whereby an
application under Order 9 Rule 13 read with Section 151 of the
Code of Civil Procedure filed by the present appellants.
4. The brief facts leading to this Appeal from Order are as
under:-
4.1 The deceased respondent No.1-Thakorbhai Ishwarbhai
Patel filed Miscellaneous Civil Suit No.4170 of 2022 against the
respondent Nos.2 to 5 and the deceased appellant-Lalitaben
Rasiklal Gandhi. The said suit came to be decreed on
21.04.2018. Thereafter, the Execution Petition No.237 of 2021
came to be filed and the decree of possession was executed on
26.08.2022. Thereafter, the appellants herein filed Civil
Miscellaneous Application No.839 of 2022 and a Civil Suit
No.1396 of 2022 on the same date i.e. on 28.09.2022. The
application under Order 9 Rule 13 read with Section 151 of the
Code of Civil Procedure came to be dismissed by the learned
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Trial Court on 04.12.2023 and the Civil Suit No.1396 of 2022
under Order 7 Rule 11 of the Code of the Civil Procedure also
came to be dismissed by the learned trial Court on 27.09.2023.
4.2 Being aggrieved and dissatisfied with the rejection order
of the said application, the present appellants are before this
Court.
5. Learned advocate for the appellants has submitted that the
summons of the Civil Suit No.4170 of 2022 was not duly served
upon the present deceased-appellant who was the original
defendant No.5. It is further submitted that the defendant No.5
was not residing at the address shown in the cause-title of the
plaint where the summons was affixed on the conspicuous part
of the property. It is further submitted that no opportunity was
given to the defendant No.5 in defending the suit. During the
pendency of the suit, the defendant No.5-Lalitaben Rasiklal
Gandhi expired on 21.07.2023, however, the plaintiff did not
bring the legal heirs of the deceased-defendant No.5 on record
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and the suit was decreed. It is further submitted that the heirs
were not brought on record within the stipulated time, the suit
automatically stood abated for want of bringing the heirs of
defendant No.5 on record. The learned advocate for the
appellants has placed reliance upon the provisions of Order 9
Rule 13 of the Code of Civil Procedure which are reproduced
hereinunder:-
"13. Setting aside decree ex parte against defendants. 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 that 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
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time to appear and answer the plaintiffs claim.]
[Explanation.- Where there has been an appeal against a
decree passed er parte under this rule, and the appeal has
been disposed of on any ground other than the ground that the
appellant has withdrawn the appeal, no application shall lie
under this rule for setting aside the ex parte decree.]"
6. Learned advocate for the appellants has submitted that the
alleged fact of affixing the summons of the plaint on the
conspicuous part of the suit property is an eye-wash in the
background of the fact that there were no doors or windows on
the property, upon which the summons could be affixed and the
said property was under development. It is further submitted that
the learned trial Court has committed a grave error in observing
that the summons was duly served. It is further submitted that on
25.08.2022, the bailiff of the learned City Civil Court came with
the police force for execution of the possession warrant and
when the bailiff took the possession of the suit property on
25.08.2022, the present appellants came to know about the
impugned judgment and decree passed by the learned City Civil
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Court on 19.04.2018 and 21.04.2018 respectively. It is further
submitted that upon loosing the possession of the suit property,
the application under Order 9 Rule 13 read with Section 151 of
the Code of Civil Procedure for a relief of setting aside the ex
parte judgment and decree came to be filed by the heirs of
defendant No.5. And on the even date, the Civil Suit No.1396 of
2022 came to be filed for declaration and restoration of
possession of the suit property from the present respondent
No.1.
7. Per contra, learned advocate for the respondent has
submitted that the suit was filed in the year-2002 and after the
due attempts made by plaintiffs, service of summons of the said
suit could not be served and pursuant to the order passed by the
learned trial Court under Order 5 Rule 17, the summons of the
Civil Suit No.4170 of 2002 was served by affixing on the
conspicuous part of the suit property and even after such
service, the defendant No.5 remained silent and did not
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participate in the proceedings. It is further submitted that the
service of summons under Order 5 Rule 17 is a deemed service
and it is a valid service. It is further submitted that the address
shown in the cause-title of the Civil Suit, the address shown on
the death certificate of the defendant No.5 and the address
shown in the Execution Application, are the same address.
8. It is further submitted that now the appellants cannot make
a hue and cry about non-service of the summons. Learned
advocate for the respondent has relied upon the proviso of Rule
13 of the Order 9 of the Code of Civil Procedure, whereby it has
been mentioned that no Court can set aside a decree passed ex
parte merely on the ground of irregularity in the service of
summons. Learned advocate for the respondent has further
submitted that Civil Suit No.1396 of 2022 and the Civil
Miscellaneous Application No.839 of 2022 were filed on the
same day, however, the appellants did not make a mention in
either of the proceedings that they have resorted to such
provisions. It is further submitted that since the defendant did
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not appear in the said Suit, though duly served. The death of
defendant No.5 never disclosed under the provisions of Order 21
Rule 10-A of the Code of Civil Procedure. Thus, in absence of
the knowledge about death of defendant No.5, during the
pendency of the suit, the heirs could not be brought on record. It
is the duty of the appellant to bring to the notice of the Court
about the said fact. The defendant No.5 had expired on
21.07.2013. In the rejoinder, learned advocate for the appellant,
has submitted that the address shown in the cause-title of the
plaint, in the death certificate and in the Civil Miscellaneous
Application No.839 of 2022, is not the same address and since
the possession was lost pursuant to the order passed in the
Execution Petition, the appellants had to change the address. It
is also submitted that the cause of action for filing an application
under Order 9 Rule 13 read with Section 151 of the Code of
Civil Procedure and the cause of action for the Civil Suit
No.1396 of 2022, are different and the appellants were within
the four corners of law to avail those two different remedies. It
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is further submitted that the appellant on the date of service of
summons on the conspicuous part of the suit property, the
defendant No.5 was not residing in the suit premises and had no
knowledge about the proceedings.
9. Having considered the submissions and the averments
made in the present Appeal, the undisputed fact which has come
up on record is that the Civil Suit No.4170 of 2002 came to be
filed by the respondent No.1 herein against the respondent
Nos.2 to 5 and against original defendant No.5 Lalitaben
Rasiklal Gandhi and the service of summons was effected by
resorting the provisions contained under Order 5 Rule 17 of the
Code of Civil Procedure and the service of summons was
carried out by affixing on the conspicuous part of the suit
property which is mentioned in the cause-tile of the plaint. The
plaintiff also sent an affidavit-in-lieu of examination-in-chief by
RPAD to defendant No.5, which was duly acknowledged. The
heirs of the defendant No.5 did not take appropriate steps to be
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impleaded in the Civil Suit. At this stage, the provisions of
Order 5 Rule 17 would be relevant to reproduce hereinunder:-
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, [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 that he
has so affixed the copy, the circumstances under which he did
so, and the 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 name and address of the person
(if any) by whom the house was identified and in whose
presence the copy was affixed.
10. On close perusal of the Civil Miscellaneous Application
No.839 of 2022, what is the main grievance voiced is that the
service of the summons was not proper upon the defendant
No.5. There are no averments to the fact that at the time of
service of summons under the provisions of Order 5 Rule 17, the
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defendant No.5 was not residing at the suit property. In absence
of such specific averment, the grievance voiced by the
appellants before this Court is devoid of any merit and there is
nothing on record to point out, except bare submission that
appellants were not residing at the suit premises on the date of
service of summons of the Suit. The provisions of Order 9 Rule
13 deals with setting aside the ex parte decree passed against the
defendant, wherein two important aspects are to be proved by
the aggrieved party. The first is that the defendant has to show
and satisfy that the summons of the suit was not duly served and
the second aspect is that the defendant was prevented by
sufficient cause from appearing when the suit was called upon
for hearing. In the present case on hand, the service of summons
was duly effected upon the defendant No.5 by resorting the
provisions of Order 5 Rule 17. What is left out for the appellant
to show that the original defendant No.5 was prevented by any
sufficient cause for non-appearing in the proceedings when the
suit was called upon for hearing. In the present case, the
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appellant has not been able to point out any cause, much less,
sufficient cause for non-appearing in the suit proceedings when
it was called upon for hearing. Interestingly, the appellants have
tried to ride on two horses by resorting to two different
proceedings one is by way of Civil Suit No.1396 of 2022,
wherein the prayer is for declaration and restoration of
possession and the second is that by also filing the application
under Order 9 Rule 13 read with Section 151 of the Code of
Civil Procedure. On perusal of copy of the plaint being Civil
Suit No.1396 of 2022, which placed on record, the prayers are
for the declaration of ownership rights and the restoration of
possession of the suit property. The hollow attempt which was
made by the learned advocate for the appellants in submitting
that the cause of action of both the above proceedings are
different has no force because the application under 9 Rule 13 is
filed for setting aside the ex parte impugned judgment and
decree on 19.04.2018 and 21.04.2018 respectively, whereas the
restoration of the suit property is also on the basis of the
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judgment and decree passed in Civil Suit No. 4170 of 2002. By
clever drafting, the appellants cannot have two remedies and
cannot claim that the cause of action of both the proceedings are
different. The base of both the proceedings is the ex parte
judgment and decree on 19.04.2018 and 21.04.2018
respectively.
11. The learned trial Court has rightly observed that service of
summons as per the provisions of Order 5 Rule 17 was effected
with the order of the Court and further in absence of any cogent
and reliable proof that the defendant No.5 was not residing at
the address shown in the cause-title of the plaint and was
residing somewhere else when the summons was affixed on the
conspicuous part of the suit property.
12. In the totality of the facts, the learned trial Court has not
committed any error in rejecting the applications and has rightly
considered the materials available on record. Hence, in my view,
the Appeal from Order lacks merit and the same is dismissed
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with no order as to costs. Accordingly, the connected Civil
Application stands disposed of.
(D. M. DESAI,J)
RINKU MALI
