Partly allowed

M/S. Sterling Abodes Rep. by Mrs. Lalita S. Kamat and Anr., v. Mrs. Maria Celina Lobo (Since Dec.) and 2 Ors.

Bombay HC18 Feb 2014WP/585/2013

Case brief

AI extract

What is this about?

The High Court of Bombay, Goa, in this writ petition, set aside an order of the trial court that dismissed an application to set aside an ex-parte order. The High Court held that the trial court failed to provide reasons for its finding and acted without application of mind, violating natural justice. The matter was remanded for a fresh decision.

What did the court decide?

The impugned order dated 20/08/2013 is quashed. The matter is remanded to the trial court to decide the application under Order IX Rule 7 CPC afresh within three months.

M/S. Sterling Abodes Rep. by Mrs. Lalita S… — Civil Procedure and Limitation | Bombay HC (2014)

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WP585/13

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 585 OF 2013

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1.	M/s Sterling Abodes, A Partnership firm registered Under the Partnership Act, 1932, Represented by Mrs. Lalita S. Kamat, Residing at 120, Altinho, Panaji, Goa.
2.	Mrs. Lalita S. Kamat, major, married, business, residing at 120, Altinho, Panaji, Goa. .	. Petitioners/ original plaintiffs.
	Versus
1.	Mrs. Maria Celina Lobo (since deceased)
2.	Mr. Rafael Lobo. Major, Married, Residing at House no. 177/5, Feira Alta, Mapusa, Bardez, Goa.
3a	Mrs. Fatima Araujo, w/o Rafael Araujo, Major Married, Residing at House no. 261, Senaulim, Verna, Salcete, Goa.
3b	Mr. Rafael Araujo, Major, Married, Residing at House no. 261, Senaulim, Verna, Salcete, Goa.
3c	Mrs. Maria Helena Borges, Major, Married, Residing at Bandra Ursula Co-operative Housing Society Ltd, Building no. 2, Flat no. 5, Patkar lane, Off Hill Road,

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WP585/13

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Bandra, Mumbai- 400050.

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3d Mr. Illidio Borges, Major, Married, Residing at Bandra Ursula Co-operative Housing Society Ltd, Building no. 2, Flat no. 5, Patkar lane, Off Hill Road, Bandra, Mumbai- 400050. 3e Mrs. Ivone Lobo, Major, Married, Residing at House no. 177/5, Feira Alto, Mapusa, Bardez, Goa. .. Respondents/ original Defendants.

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Mr. V. P. Thali, Advocate for the petitioners.

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Mr. M. B. D'Costa, Senior Advocate with Ms. K. Betquekar, Advocate for the respondents.

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CORAM :- U. V. BAKRE, J. DATE : 18th February, 2014

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ORAL JUDGMENT :

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Heard Mr. Thali, learned Counsel appearing on behalf of the petitioners and Mr. D'Costa, learned Senior Counsel appearing on behalf of the respondents.

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2. Rule. Rule is made returnable forthwith. By consent, heard forthwith.

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3. By this petition, the petitioners have taken exception to the

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order dated 20/08/2013, passed by the learned Civil Judge, Junior Division at Panaji, in Regular Civil Suit No. 46/2000/C.

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4. Petitioners are the plaintiffs whereas respondents are the defendants in Regular Civil Suit No. 46/2000 . For the sake of convenience, the parties shall hereinafter be referred to as per their status in the said suit.

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5. The plaintiffs have filed the said suit for injunction. The said suit was filed in March, 2000. On 11/08/2001, the defendant no. 1 died and her legal heirs were brought on record. On 22/01/2013, the trial Court passed an order directing that the suit shall proceed ex-parte against the defendants. On 18/05/2013, defendants no. 2, 3(a), 3(b), 3(c), 3(d) and 3(e) filed an application before the trial Court praying that the said ex-parte order dated 22/01/2013 be set aside and the said defendants be granted an opportunity for filing their written statement. In the said application, the said defendants alleged that after receipt of notice from the trial Court by defendant no. 2, which notice was affixed to the door of his house, defendant no. 2 informed his sisters and their respective spouses that plaintiffs had filed an application for amendment of the plaint and the defendants had to answer to the same. They further stated that accordingly, they

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filed their reply dated 16/04/2013 to the amendment application of the plaintiffs. It was further alleged that on 16/04/2013, the Advocate representing the said defendants inspected the Court file and noticed that the said defendants were placed ex-parte by order dated 22/01/2013. According to them, they got first knowledge of the said order dated 22/01/2013 only on 16/04/2013. They specifically stated that they were never notified in the suit and hence, the ex-parte order dated 22/01/2013 has been passed without issuing summonses/notices to them. They stated that they are desirous of contesting the suit and have made out sufficient cause for setting aside the ex-parte order. They prayed for opportunity to file written statement.

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6. By way of reply, the plaintiffs vehemently objected to the said application. The plaintiffs alleged as follows :

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That the application is bad in law, not maintainable and malafide and has been filed only to cause delay and consequent harassment to the plaintiffs; that the application contains false submissions made on oath amounting to perjury and contempt of the Court; that an application for amendment of the plaint was duly served on all the said defendants and they had filed their reply dated 16/04/2013; that the said defendants were placed exparte vide order dated 22/01/2013 on account of their failure to

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attend the hearing on numerous occasions in spite of providing multiple opportunities; that the said defendants had knowledge of the ex-parte order soon after the same was passed; that the plaint was presented on 16/03/2000 and C.M.A. No. 263/2001/C for bringing the legal representatives of deceased defendant no.1 was registered on 23/10/2001; that the summons in the suit was issued on 16/08/2010 and was served on defendant no. 2 on 23/08/2010; that after the receipt of the summons, defendant no. 2 approached the plaintiffs for filing compromise terms; that the said compromise terms signed by the plaintiffs and defendant no. 2 were filed on 01/11/2010 and again on 20/11/2010; that defendant no. 2 is also one of the legal representatives of deceased defendant no.1 along with defendants no. 3(a) to 3(e) and after the date of service on defendant no. 2 i.e 23/08/2010, the matter was posted for hearing on 28 occasions before passing the ex-parte order; that in C.M.A. No. 263/2001, the notice to legal representatives being defendants no. 3(a) to 3(e) was issued on 19/09/2011 and served on 07/10/2011 and the matter was posted for hearing further on 13 occasions before passing the exparte order; that the statement on oath made in the application by defendant no. 2 that the ex-parte order has been passed without issuing summonses/notices to the defendants is false and amounts to perjury/contempt; that the defendants are not

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entitled at this stage to contest the suit; that it is false that the defendants have made out sufficient cause for setting aside the ex-parte order; that grave prejudice would be caused to the plaintiffs if ex-parte order is set aside, since the defendants have fully and finally received and appropriated the entire consideration receivable by them, due to which they have not bothered to defend the suit; that setting aside the ex-parte order will enable the defendants to further delay the proceedings.

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7. The learned trial Court has passed the following order on 20/08/2013 on the said application :

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“ORDER

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Perused application and reply. Heard oral arguments as well as perused written arguments filed.

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I find that in the circumstance of the case, the respondents having not been served as per the provision of CPC and in the true sense of the law, the application is granted. Ex-parte order is set aside. Defendants to file their W/S within 30 days from today.”

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8. Mr. Thali, learned Counsel appearing on behalf of the plaintiffs tried to show from records as to how defendant no. 2

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was served with the summons and as to how even otherwise he had knowledge of the suit from the beginning. He pointed out that as per the bailiff's report dated 23/08/2010, defendant no. 2 was served by affixation of the notice on the door of the house. He then pointed out that on 01/11/2010, defendant no. 2 himself had filed compromise terms in the suit. The learned Counsel then submitted that since defendant no.1 expired, the legal representatives were brought on record and they were served on 07/10/2011 and the roznama dated 07/02/2012 reveals that the legal representatives had remained absent, though duly served. He, therefore, submitted that as on 07/02/2012 even the legal representatives of deceased defendant no.1 were aware of the suit. According to him, therefore, the question of the defendants claiming that they were not served with the summonses/notices, does not at all arise. He further submitted that records would show that total 28 opportunities were given to defendant no. 2 and 13 opportunities were given to the legal representatives of defendant no.1 and only thereafter, they were marked ex-parte and that the suit proceeded ex-parte until the stage of plaintiffs' evidence. He further submitted that the notices of the amendment application dated 22/03/2013 filed by the plaintiffs were served on the defendants on 26/03/2013 and 15/04/2013 and the learned Advocate along with defendants had appeared in

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response to the same. Considering all the above aspects, according to the learned Counsel for the plaintiffs, the summonses and notices were duly served on the defendants. The learned Counsel for the plaintiffs submitted that the trial Court has not at all specified any reason for rendering the finding that the defendants have not been served as per the provisions of the C.P.C. and in the true sense of law. He submitted that the impugned order has been passed mechanically, without application of mind and is perverse since no reasons in support of the same are given.

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9. On the other hand, Mr. D'Costa, learned Senior Counsel appearing on behalf of the defendants, submitted that the procedure prescribed by Rule 17 of Order V of C.P.C. was not complied with by the bailiff of the Court and, therefore, the service dated 23/08/2010 was not good service on defendant no. 2. He pointed out that the said service by affixation was done on 23/08/2010, but the roznama in the suit dated 04/09/2010 specifically says that the defendants are not served. He submitted that defendant no. 2 might have appeared in the Court earlier only for the purpose of settlement of the dispute, though he was not duly served with the summons to appear. The learned Senior Counsel further submitted that insofar as the legal

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representatives of the deceased defendant no.1 are concerned, they were also not served by regular service and that the provisions of Order V, Rule 17 of C.P.C. were not complied with. He, therefore, submitted that the trial Court has rightly held that the defendants were not served as per the provisions of C.P.C. and in the true sense of law.

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10. I have gone through the material on record and I have considered the submissions advanced on behalf of the parties.

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11. Considering the material on record, the bare perusal of the impugned order reveals that the same has been passed without application of mind and without giving any reasons as to why the trial Court found that the respondents were not served as per the provisions of C.P.C. and in the true sense of law. The trial Court was bound to justify the findings. The plaintiff had filed a detail reply resisting the application and the contents of the reply were borne out of the records. The parties had filed written submissions before the trial Court and as contended by learned Counsel appearing on behalf of the plaintiff, had extensively argued orally too. Since the trial Court has not given any reasons as to why it says that the defendants are not served as per the provisions of the C.P.C. and in the true sense of law, the impugned order is perverse and arbitrary. This Court is left with

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no other alternative but to set aside the impugned order, which is in clear violation of the principles of natural justice and without application of mind, and to remand the matter to the trial Court for fresh decision on the said application, in accordance with law.

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12. In the result, the petition is partly allowed.

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(a) The impugned order dated 22/01/2013 is quashed and set aside.

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(b) The learned Civil Judge, Junior Division, 'C' Court, Panaji shall decide the said application filed by defendants no. 2, 3(a), 3(b), 3(c), 3(d) and 3(e) under Order IX, Rule 7 of C.P.C. afresh, in accordance with law.

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(c) The trial Court shall decide the said application within a period of three months from the date of receipt of this order.

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(d) Parties to appear before the trial Court on 03/03/2014 at 10.00 a.m.

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(e) Rule is made absolute in the aforesaid terms.

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13. The petition stands disposed of accordingly, with no order as to costs.

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U. V. BAKRE, J.

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SMA

M/S. Sterling Abodes Rep. by Mrs. Lalita S. Kamat and Anr., v. Mrs. Maria Celina Lobo (Since Dec.) and 2 Ors.

Case brief

What is this about?

What did the court decide?

M/S. Sterling Abodes Rep. by Mrs. Lalita S. Kamat and Anr., v. Mrs. Maria Celina Lobo (Since Dec.) and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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