Dismissed

Salim Saddiquedin Shaikh and Anr. v. Gindodebai Jairam Bangaria (Since Deceased) and Anr.

Bombay HC3 Sept 2013CRA/50/2013

Case brief

AI extract

What is this about?

This judgment discharged a civil revision application challenging the rejection of an ex parte notice to set aside a decree. The Court held that summons were duly served and the order to proceed ex parte was in the interest of justice, dismissing the revision. The Court also allowed a separate civil application regarding possession of suit premises.

What did the court decide?

Civil Revision Application dismissed; Civil Application No. 26 of 2013 disposed of; Civil Application Stamp No. 20448 of 2013 allowed regarding possession.

Salim Saddiquedin Shaikh and Anr. Vs… — Civil Procedure and Limitation | Bombay HC (2013)

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909.cra.50.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 50 OF 2013 WITH CIVIL APPLICATION NO. 26 OF 2013 WITH

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CIVIL APPLICATION NO. 394 OF 2013 (Stamp No. 20448 of 2013)

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Saddikdin Mohammed (since deceased) 1. Salim Saddiquedin Shaikh and another .. Applicants

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Vs.

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Gindodebai Jairam Bangaria (Since deceased) Prahlad Jairam Bagaria .. Respondent

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Mr. R.R.Tiwari, for Applicants. Mr. S.P.Srivastava, for Respondent.

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CORAM : R.G.KETKAR, J . DATE : 03^rd September, 2013

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P.C. :

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. Heard Mr.R.R.Tiwari, learned Counsel for the Applicants and Mr.S.P.Srivastava, learned Counsel for the respondent at length.

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By this application under section 115 of the Code of Civil Procedure, 1908 (for short ' C.P.C.') , the applicants have challenged the judgment and order dated 15/01/2010 passed by the learned Judge, Court Room No. 34 of Court of Small Causes at Bombay in Misc. Notice No. 487 of 2004 in RAE & R Suit No. 353/1065 of 1992 as also the judgment and order dated 31/10/2012 passed by the

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Appellate Bench of Court of Small Causes at Bombay. By these orders, the Courts below rejected the notice taken out by the applicants under Order 9 Rule 13 of CP.C for setting aside exparte decree dated 13/01/2004.

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In support of this application, Mr.Tiwari strenuously contended that the writ of summons of the suit instituted by 2^nd respondent was not duly served on the applicants. He further submitted that because of the ill health of the applicants, which constitutes sufficient cause, they were prevented from attending the proceedings of the suit. The Courts below ought to have allowed interim notice taken out by the applicants for setting aside the exparte decree. Mr.Tiwari invited my attention to

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i) the service report dated 21/10/1992 made by the bailiff to the effect that the bailiff had served the copy of the summons along with the copy of the plaint on defendant named therein and obtained his signature. He submitted that the said report does not bear the signature of the defendant. He however submitted that, on behalf of the defendant, Mr.Sadiq Din Mohammed, vakalatnama was filed by Mr. Mohammed Osman, Advocate, on 11/11/1992.

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ii) the service report made by the bailiff in Interim Notice No. 1171 of 1999. The service was effected on 05/08/1999 and it bears the signature of the defendant.

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iii) the order dated 31/01/1996 passed by the learned trial Judge regarding the absence of defendant and his advocate as also the defendant not filing the written statement and directed the suit to proceed exparte against the defendants.

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iv) the order dated 02/02/2000 by which the learned trial Judge made absolute notice and plaintiff no. 2 was allowed to delete the name of plaintiff no. 1 and carry out the correction as prayed for. Defendants were granted liberty to file the written statement. Mr.Tiwari therefore, submitted that the order dated 31/01/1996 directing to proceed the suit exparte against the defendants does not survive in view of the order dated 02/02/2000. He submitted that in pursuance of this order, the plaintiff did not serve the copy of amended plaint on the defendants which deprived them opportunity to file the written statement.

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v) Misc. Notice 487 of 2004 filed by the applicants under Order 9 Rule 13 of C.P.C and in particular, paragraph 4 thereof.

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He submitted that in paragraph 4, applicants purportedly admitted receipt of writ of summons. He submitted that the Advocate who had drafted the application did not make it clear whether the writ of summons was served in the year 1992 or after the amendment to the plaint was allowed. Mr.Tiwari, therefore, submitted that since writ of summons of the suit was not served on the defendants, on this

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ground, the Courts below ought to have allowed the notice under Order 9 Rule 13 of C.P.C. Apart from that, he further submitted that the defendants were prevented from not participating in the suit on the ground of ill health and it constitutes a sufficient cause. He submitted that he has produced the medical certificates in this proceedings and even if, those documents were not produced in the Courts below, in order to substantial justice between the parties, the Court may take into account those documents. Mr.Tiwari relied upon the following judgments in support of his submissions.

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a)Sushil Kumar Sabharwal Vs. Gurpreet Singh reported in AIR 2002 Supreme Court, 2370.

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b) Smt.Chhutbai Vs. Madanlal reported in AIR 1989 Madhya Pradesh 330.

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On the other hand, Mr.Srivastava supported the impugned orders. He also invited my attention to Civil Application Stamp No. 20448 of 2013 filed by the respondent and in particular, bailiff report dated 15/07/2013. He submitted that perusal of the bailiff report shows that the bailiff delivered the possession of the suit premises to the respondent. However, thereafter, the applicants herein, had taken possession of the suit premises at 6.00 p.m on 15/07/2013 by removing the latch put up by the respondent.

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I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the

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material on record. As noted earlier, writ of summons was served on the applicants/defendants on 21/10/1992. Accordingly, the defendants also entered appearance by filing vakalatnama of the Advocate Mr. Mohammed Osman on 11/11/1992. By order dated 31/01/1996, the trial Court recorded that defendant and his Advocate were absent and that no written statement were filed. The learned trial Judge therefore directed suit to proceed exparte against the defendant. Mr.Tiwari submitted that subsequently on 02/02/2000, the Court has permitted the plaintiff No.2 to delete the name of plaintiff no.1 and carry out correction and serve copy of amended plaint on the defendant. Since the plaintiff did not serve the amended plaint on the defendants, they could not file the written statement. In view of the subsequent order dated 02/02/2000, the order dated 31/01/1996 did not survive. It is not possible to accept this submission. By order dated 02/02/2000, the only amendment made by the plaintiff was to delete the name of plaintiff No.1 from the proceeding. In other words, save and except this, there was no other amendment in the plaint. The order also did not permit the defendant to file written statement. As noted earlier, the order dated 31/01/1996 was already passed by the learned trial Judge directing the 'suit to proceed exparte against the defendants' as no written statement was filed. Even after passing the order on 02/02/2002, it is not the case of the defendants that they filed written statement to the

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unamended plaint. In view thereof, I do no find any merit in the submission of Mr.Tiwari.

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As far as the sufficient cause sought to be made out for the first time in this Court is concerned, admittedly, the defendants did not produce any material before the Courts below for substantiating the sufficient cause. The Courts below after appreciating material on record have held that despite service of the summons, defendants did not participate in the proceeding and no sufficient cause was made out for his absence. After hearing learned Counsel appearing for the parties and after considering the material on record, I do find that any case is made out for invoking power under section 115 of the Act. In case of Sushil Kumar Sabharwal (supra) on facts, Apex Court recorded that there was no service of summons on the defendants. In the present case, I have already held that the defendants were duly served with the writ of summons. Defendants also admitted service of writ of summons. In view thereof, the decision in case of Sushil Kumar Sabharwal (supra) does not advance case of the applicant.

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One more aspect that requires to be taken into consideration is that from the perusal of the Civil Application Stamp No. 20448 of 2013, bailiff had submitted report on 15/07/ 2013 to the effect he has handed over possession of the suit premises to the respondent. In paragraph 10 of the application, respondent herein specifically asserted that the applicants herein had removed the lock of

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the door and took possession of the suit premises. Though the applicants were served with the copy of this application on 27/07/2013, no reply is filed disputing correctness of this assertion. In view thereof, having regard to the conduct of the applicants also no case is made out for invocation of the power under section 115 of the C.P.C. In the result, the Civil Revision Application fails and the same is dismissed.

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In view of dismissal of the Civil Revision Application, the Civil Application No. 26 of 2013 does not survive and the same is disposed of accordingly.

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Since during the pendency of the proceeding before this Court, the applicants have taken possession of the suit premises from the respondent, Civil Application Stamp no. 20448 of 2013 deserves to be allowed in terms of prayer clause (b) and the same is accordingly allowed.

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Order accordingly.

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(R.G.KETKAR, J.)

Salim Saddiquedin Shaikh and Anr. v. Gindodebai Jairam Bangaria (Since Deceased) and Anr.

Case brief

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Salim Saddiquedin Shaikh and Anr. v. Gindodebai Jairam Bangaria (Since Deceased) and Anr.

Case brief

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