Dismissed

Shantaben Nabheram Mistry and Anr. v. Ravindra Umakant Vasaikar and Ors.

Bombay HC12 Sept 2013WP/3989/2013

Case brief

AI extract

What is this about?

A writ petition under Article 227 challenging lower court findings that service of summons was properly effected by pasting notices on suit premises after multiple failed attempts. The High Court rejected the claim of defective service and dismissed the Writ Petition.

What did the court decide?

Writ petition dismissed. No invocation of Article 227 jurisdiction.

Shantaben Nabheram Mistry and Anr. Vs Ravindra… — Execution and Attachment | Bombay HC (2013)

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1 / 3 WP/ 3989/2013

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Tapadia RR/B.21

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3989 OF 2013

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Shantaben Nabheram Mistry & Anr

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Petitioners

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Ravindra Umakant Vasaikar and Ors

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.. Respondents

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Mr.Sushil M.Shukla, Advocate for the petitioners. None for the respondents.

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CORAM : R.G.KETKAR,J. DATE : 12/09/2013

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PC:

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Heard Mr. S.M.Shukla, learned counsel for the petitioners at length.

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By this petition under Article 227 of the Constitution of India, the original defendants have challenged the Judgment and order dated 4th/5^th June, 2009 passed by the learned Judge, Court Room No.34 of the Court of Small Causes at Bandra, Mumbai as also the Judgment and order dated 15.12.2012 passed by the Appellate Bench of the Court of Small Causes in Appeal No.106 of 2009. By these orders, the Courts below dismissed Misc. Application No.98 of 2009 filed by the petitioners for setting aside the Judgment and decree dated 27.6.2008 passed by the trial Court.

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In support of this petition, Mr. Shukla strenuously contended that the petitioners were not served with summons after the suit was restored. The petitioners acquired the

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knowledge of pendency of the suit only after decree was executed and possession of the suit premises was taken from them on 25.3.2009.

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It is not possible to accept this submission. The Courts below, after appreciating the material on record, have concurrently found that several attempts were made for effecting service on the petitioners. All notices came back with endorsement 'not claimed'. The service was, therefore, effected by pasting notice on the suit premises in the presence of neighbours of the suit premises. In particular, the Appellate Court from paragraph 16 of the impugned order has recorded the attempts made for effecting service on the defendants through Bailiff on 4.2.2005, 10.2.2005, and 14.2.2005. Every time the suit premises was found locked. The summons/notice was served on the defendants by pasting copy on the conspicuous part of the suit premises. In paragraph 17, the Appellate Court also recorded that the plaintiffs had moved notice under Order 21, Rule 22 of CPC. Again attempts were made on 8.10.2008, 24.10.2008, 3.11.2008 and 4.11.2008 for effecting service on the defendants through Bailiff. Every time, the suit premises was found locked. As per the order dated 17.11.2008 of the trial Court, copy of the notice was pasted on the door of the suit premises. Copy thereof was also sent by R.P.A.D. The R.P.A.D. Packet returned to the Court with endorsement 'unclaimed'. The

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submission that the bailiff's reports are manipulated by the plaintiffs, cannot be countenanced as both the Courts have recorded a finding that different bailiffs tried to effect service on the defendants. The defendants have also not denied the names of persons named in the bailiff's report that they are not their neighbours. The Courts below, after appreciating the material on record, found that no case was made out by the petitioners for setting aside exparte decree. After hearing the learned counsel for the petitioners and after considering the material on record, I do not find that the findings recorded by the courts below are perverse, being based on no evidence, or that on the basis of evidence on record, no reasonable person would come to that conclusion. In view of this, no case is made out for invocation of the powers under Article 227 of the Constitution of India. The writ petition fails and the same is dismissed.

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(R.G.KETKAR, J.)

Shantaben Nabheram Mistry and Anr. v. Ravindra Umakant Vasaikar and Ors.

Case brief

What is this about?

What did the court decide?

Shantaben Nabheram Mistry and Anr. v. Ravindra Umakant Vasaikar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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