Dismissed

Mrs. Sunita Manohar Pathrave v. Mr. Ebrahim Mohamed Meni and Ors.

Bombay HC25 Sept 2013WP/8049/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the setting aside of an ex parte decree. Finding that the courts below were justified in ordering substituted service based on bailiff reports, the Court held that the petitioner failed to substantiate her claim of residing in the premises and the impugned orders were not perverse.

What did the court decide?

The writ petition is dismissed. An order staying execution of the ex parte decree for eight weeks is granted conditionally upon the petitioner filing an undertaking.

Mrs. Sunita Manohar Pathrave Vs Mr. Ebrahim Mohamed Meni… — Property and Title | Bombay HC (2013)

¶1

1 / 9 WP/8049 /2013

¶2

Tapadia RR/B.906

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶4

WRIT PETITION NO. 8049 OF 2013

¶5

Ms. Sunita Manohar Pathrave

¶6

..Petitioner

¶7

¶8

Mr.Ebrahim Mohamed Meni and Ors

¶9

.. Respondents

¶10

Mr. P.J.Thorat, Advocate for the Petitioner. Mr. S.P.Kanuga, i/b Sapana N Nath, Advocate for Respondent nos.1 and 2.

¶11

CORAM : R.G.KETKAR,J. DATE : 25/09/2013

¶12

PC:

¶13

Heard Mr. P.J.Thorat, learned counsel for the petitioner and Mr S.P.Kanuga, learned counsel for respondent nos 1 and 2 at length.

¶14

By this petition under Article 227 of the Constitution of India, the original defendant no.2 has challenged the Judgment and order dated 22.2.2013 passed by the learned Judge, Court Room No.23, Court of Small Causes, Bombay in MARJI No.375 of 2012 as also the Judgment and order dated 5.8.2013 passed by the learned Appellate Bench of the Court of Small Causes, Bombay in Appeal No. 74 of 2013. By these orders, the Courts below dismissed the application made by defendant no.2 under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside exparte decree dated 16.8.2011.

¶15

In support of this petition, Mr Thorat submitted that

¶16

2 / 9 WP/8049 /2013

¶17

respondent nos 1 and 2, hereinafter referred to as 'plaintiffs' instituted suit on 15.3.2010 against respondent no.3, hereinafter referred to as 'defendant no.1, and respondent no.4 'hereinafter referred to as 'defendant no.3', alleging that respondent no.3defendant no.1 was the tenant of the suit premises. He had sublet the suit premises in favour of the petitioner, hereinafter referred to as 'defendant no.2', who, in turn, had parted with possession of the suit premises by subletting it to respondent no.4. He invited my attention to the bailiff's reported dated 23.3.2010 which indicates that summons was served on Mangesh Nandu Rekame, brother of defendant no.3. Thus, on 23.3.2010 defendant no.3 was served. The bailiff report further indicated that defendant nos 1 and 2 were not found at the suit address, date and time and on making inquiry with brother of defendant no.3 he was informed that defendant nos 1 and 2 are not residing at the suit address and their present whereabouts are not known to him. He further invited my attention to the bailiff's report dated 25.3.2010 wherein on inquiries from inmate person Shri Namdeo Govind Nakate was informed that defendant nos 1 and 2 are not staying at the suit address and their whereabouts are not known and therefore the bailiff returned. 4. Mr. Thorat submitted that on 8.4.2010 the plaintiffs made application for effecting service on defendant nos 1 and 2 through RPAD/UPC, by pasting on the premises and Court house

¶18

3 / 9 WP/8049 /2013

¶19

premises under Order V Rule 20 of C.P.C. On 8.4.2010 the learned trial Judge allowed substituted service by RPAD/UPC, pasting on premises and Court house pasting. He submitted that however in terms of Order V Rule 20 the learned trial Judge did not record his satisfaction. He invited my attention to the bailiff's report dated 16.4.2010. He invited my attention to the application made by defendant no.2 under Order IX rule 13 C.P.C and in particular paragraphs 3 and 5 thereof. He submitted that the suit was instituted by the plaintiffs in collusion with defendant no.3. In short, his submission is that the bailiff's report is not reliable and the plaintiffs instituted the suit in collusion with defendant no.3 . Defendant no.3 and/or his brother obliged the plaintiffs in reporting to the bailiff that defendant nos 1 and 2 are not residing at the suit address. He submitted that under the Leave and Licence Agreement dated 15.5.2009 he had temporarily given the suit premises to defendant no.3 for use and occupation. Since defendant no.3 committed breach of the terms and conditions, he removed defendant no.3 from the suit premises after three months. In short, his submission is that since August 2009 he is occupying the suit premises and the bailiff's report dated 23.3.2010, 25.3.2010 as also the report of pasting dated 16. 4.2010 are not reliable and are liable to be discarded. In support of the submissions, he relied upon the following Judgments: (i) in the case of Sushil Kumar Sabharwal

¶20

4 / 9 WP/8049 /2013

¶21

Vs. Gurpreet Singh (2002) 5 SCC 377 and in the case of Smruti Pahariya Vs. Sanjay Pahariya, (2009) 13 SCC 338.

¶22

On the other hand, Mr Kanuga supported the impugned orders. He submitted that defendant no.1 was tenant of room no.3, 36, Simlak Masjid Chawl, situated at Dr.B.A.Road, Dadar (E), Mumbai -400 014, (for short, 'suit premises'). Defendant no.1 had parted with possession of the suit premises and handed over vacant and peaceful possession to defendant no.2. Defendant no.2 in turn parted with possession and sublet the suit premises to defendant no.3 on leave and licence basis. The said agreement was executed on 15.5.2009 for a period of 11 months. He submitted that the bailiff had made attempts on 23.3.2010, 25.3.2010 for effecting service on defendant nos 1 and 2. Since defendant nos 1 and 2 were not residing in the suit premises, the application was made by the plaintiffs for effecting substituted service. That application was allowed on 8.4.2010. In pursuance thereof, on 16.4.2010 the bailiff had pasted two copies of summons along with two copies of the Plaint on the outer door of the suit premises for defendant nos 1 and 2 in presence of Shri Mangesh nandu Rekame, brother of defendant no.3. The bailiff further submitted the report to the effect that two copies of the summons along with two copies of plaint were pasted in conspicuous place in the court-house. He further submitted that the case of defendant no.2 that since August 2009 he was

¶23

5 / 9 WP/8049 /2013

¶24

residing in the suit premises and, therefore the bailiff reports are not reliable, cannot be accepted as defendant no.2 did not produce any evidence on record to substantiate this plea.

¶25

I have considered the rival submissions made by the learned counsel appearing for the parties. I have perused the material on record. In the application filed by defendant no.2 under Order IX Rule 13, defendant no.2 contended that he had given the suit premises to defendant no.3 for temporary use. Since defendant no.3 committed breach of the terms and conditions, he removed him from the suit premises within three months. Defendant no.2 thereafter started residing in the suit premises. In other words, the case of defendant no.2 is that the leave and licence agreement was executed by him in favour of defendant no.3 on 15.5.2009. Because of the breaches of the terms and conditions committed by defendant no.3, he revoked that licence within three months and started occupying the suit premises since August, 2009. However, the submission of Mr Thorat that the bailiff reports dated 23.3.2010 , 25.3.2010 as also 5.4.2010 and 16.4.2010 are not reliable, cannot be accepted as defendant no.2 has not produced any material on record to substantiate his plea that since August 2009 and even at the time of effecting service by the bailiff on various dates, referred herein above, he was residing in the suit premises. Perusal of the bailiff's reports dated 23.3.2010 and 25.3.2010 clearly shows

¶26

6 / 9 WP/8049 /2013

¶27

that the bailiff attempted to effect service on defendant nos 1 and 2 and they were not found in the suit premises. Order V Rule 20 of CPC provides that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house in which the defendant is known to have last resided. In the instant case, it is not in dispute that the suit address is correctly mentioned. Perusal of the bailiff reports show that defendant nos 1 and 2 were not found at the suit address and their whereabouts were also not known. Mr Thorat submitted that while allowing application on 8.4.2010 the trial Court did not record satisfaction. Perusal of the application dated 6.4.2010 made by the plaintiffs shows that the plaintiffs had referred to three attempts that were made by the bailiff for effecting service on defendant nos 1 and 2. Firstly on 23.3.2010, secondly on 25.3.2010 and thirdly on 5.4.2010 and thereafter the application was made on 6.4.2010 for effecting service under Order V Rule 20 of CPC. The learned trial had allowed substituted service by passing order on that application. In other words, after considering the assertions made in the application as also after considering the bailiff reports the learned trial Judge had passed

¶28

7 / 9 WP/8049 /2013

¶29

that order. It, therefore, cannot be said that the learned trial Judge, without satisfying himself, had allowed effecting substituted service on defendant nos 1 and 2. Since defendant no.2 did not produce any material on record to substantiate that he was actually residing in the suit premises from August 2009 and even at the time of bailiff visiting the suit premises, it is not possible to accept the submission of Mr Thorat that the bailiff reports are not reliable.

¶30

After considering the material on record and in particular the bailiff's reports as referred to in paragraph 7, the learned trial Judge had dismissed the application. The appellate Court, for the reasons stated in paragraph 13 of that order, confirmed the findings recorded by the learned trial Judge.

¶31

Mr. Thorat relied upon the decision of the Apex Court in the case of Sushil Kumar Sabharwal (supra). In that case, the Court was considering the provisions of Order V Rules 17 and 18 and on the facts found that there were several infirmities and lapses on the part of process server, that is bailiff. In the present case, I do not find that the bailiff has committed any infirmity while effecting service on defendant nos 1 and 2. In view thereof, the Judgment in the case of Sushil Kumar Sabharwal (supra) does not advance the case of defendant no.2.

¶32

In so far as the Judgment in the case of Smruti Pahariya (supra) is concerned, in paragrpah 14 the Apex Court observed

¶33

8 / 9 WP/8049 /2013

¶34

that the Court had found that the service was not a proper one and the Court was also not satisfied with endorsement of the courier. Under such circumstances, the Court's direction on the prayer of the appellant-wife for substituted service under Order V rule 20 was not a proper one. The direction for substituted service under Order V rule 20 can be passed only when the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason summons cannot be served in ordinaryway. In the facts of the present case, I find that the trial Court before passing order on 8.4.2010 has considered relevant circumstances as also the bailiff reports and thereafter permitted substituted service. In view thereof, reliance placed by Mr Throat on the decision of Smt Pahariya (supra) does not advance the case of defendant no.2. Mr Thorat was not in a position to demonstrate that the findings recorded by the Appellate Court are either perverse being based on no evidence or that on the basis of material on record, no reasonable or prudent person would have come to the conclusion to which the Courts below have arrived at. In view thereof, no case is made out for invocation of the powers under section 227 of the Constitution of India. The Writ Petition fails and the same is dismissed.

¶35

At this stage, Mr. Thorat orally applies for stay of the execution of the decree for a period of eight weeks from today.

¶36

9 / 9 WP/8049 /2013

¶37

He states that defendant no.2 and all adult family members residing with him will file usual undertaking in this Court within two weeks after giving advance copy to other side incorporating therein (i) that they are in possession of the suit premises and nobody else is in possession; (ii) that they have neither created any third party interests nor parted with possession; (iii) that they will hereafter neither create third party interests nor part with possession and (iv) that in case they are unable to obtain suitable orders from higher Court within the stipulated period, they will vacate and hand over possession of the suit premises to respondent nos 1 and 2 after a period of eight weeks. Subject to defendant no.2 giving the aforesaid undertaking in this court within two weeks from today, the exparte decree dated 16.8.2011 shall not be executed for a period of eight weeks from today. Order accordingly.

Mrs. Sunita Manohar Pathrave v. Mr. Ebrahim Mohamed Meni and Ors.

Case brief

What is this about?

What did the court decide?

Mrs. Sunita Manohar Pathrave v. Mr. Ebrahim Mohamed Meni and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shri. Vijay Mallikarjun Kore Vs Shri. Krishna Dagdu Shelkar

Shri.Suresh Dalichand Solanki Vs Shri.Jeevan Mahadeo Gorade and Ors.

Shri Sadashiv Tukaram Pawar Vs Sou. Taibai W/O. Pandurang Yadav and Others

Mohamed Yusuf Noorani and Ors. Vs Vipinchandra Harkisondas Sariaya and Ors.

Surjee Lakhansingh Gala Vs Prakash Ramakant Kamathe

Chhabile Ramkaderan Sharma and Ors. Vs Mantore Biharilal Sharma, through Constituted Attorney, Mr. Santosh v. Sharma and Ors.