This appeal against the rejection of a notice of motion to set aside an ex-parte decree. The court held that service of summons was properly proved via bailiff report and plaintiff affidavit, and the appellant's explanation for delay was insufficient, dismissing the appeal.
The appeal is dismissed and the impugned order is upheld.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.536 OF 2016
Javed Ahmed Mohd. Tauheed Shaikh Age 53 years, Occ. Business residing at Flat No.1601-1602, Zainab Tower, 16th Floor, 253-255 Maulana Azad Road, Mumbai 400 008.
… Appellant.
-vs-
Atharali Muzafarali Khan Age – 51 years, Occ. Business residing at Flat no.802, Dudhwala Complex, F wing, Belasis road, Mumbai 400 008 … Respondent.
Ms Seema Sairnaik, Advocate with Shri Ameya Tamhane, Advocate for appellant.
Shri V. R. Tripathi, Advocate of respondent.
CORAM : A. S CHANDURKAR, J. ARGUMENTS HEARD ON : 26th NOVEMBER, 2018 JUDGMENT PRONOUNCED ON : 6th DECEMBER, 2018
ORAL JUDGMENT :
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submitted that service of summons in the Summary Suit on the present appellant was not in accordance with the prescribed procedure. The original writ of summons that required to be filed on record was not so filed. He referred to the report submitted by the bailiff indicating service of the summons on the son of the defendant and pointed out overwriting in the said report to urge that the same was not free from doubt. The bailiff in question had not been examined and in view of the provisions of Rule 63 of the Bombay City Civil Court Rules, 1948 (for short, the said Rules) it could not be said that the service of summons on the appellant had been duly proved. It was then submitted that the appellant had assigned sufficient reasons for his unavailability from 13/11/2014 till 20/08/2015 as he had gone out of station. Considering the ex-parte nature of decree, the same was liable to be set aside as the writ of summons was not proved to have been duly served on the appellant. Hence it was submitted that the trial Court ought to have condoned the delay and ought to have set aside the ex-parte decree.
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appellant. However, no affidavit of the son of the appellant was placed on record to deny such service. The learned counsel referred to the affidavit filed by the appellant in support of the notice of motion and submitted that according to the appellant he got knowledge about the said decree after going through records available with him. In absence of sufficient and cogent explanation being furnished by the appellant, the trial Court was justified in refusing to condone the delay and in dismissing the notice of motion. It was thus submitted that the impugned order did not call for any interference.
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affidavit of service was accepted by the trial Court which thereafter set the appellant ex-parte and proceeded to decide the suit.
It was necessary for the appellant to have countered these two relevant aspects that have been mentioned in the Bailiff’s report. However, conspicuously the appellant has not chosen to counter these two relevant aspects. It is thus clear that the appellant had no grievance with the statements in the Bailiff’s Report that the summons was served upon his son at the address mentioned therein.
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setting aside of the ex-parte decree, the contention as urged by relying upon Rule 63 of the said Rules loses its significance. Under Rule 63 of the said Rules, the manner in which proof of service of summons has to be given has been laid down. In that regard the affidavit of the plaintiff who had accompanied the Bailiff for serving the writ of summons is on record and that affidavit is dated 13/08/2014. When that affidavit along with the service report are read together, it is seen both the documents corroborate the statements made therein. It is thus found that there was sufficient compliance of Rule 63 of the said Rules in the light of the affidavit of the plaintiff who had accompanied the Bailiff for effecting service on the appellant.
Similarly the reasons as mentioned by the appellant for the delay in moving the application for setting aside the ex-parte decree have not been found sufficient by the trial Court and rightly so. In paragraph 3 of the affidavit sworn by the appellant in support of the notice of motion, it has been stated that after going through the relevant record available with him it was found that the same was not served on the appellant. The manner in which he got knowledge about the same has not been specifically disclosed.
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the summons. In absence of any other statement being made by the appellant on oath so as to counter the assertions made in the affidavit filed by the plaintiff, no fault can be found with the order of the trial Court dismissing the said notice of motion.
JUDGE
Asmita
2 issues framed by the court
Whether the ex-parte decree dismissing the notice of motion to set aside the original decree should be set aside due to improper service of summons.
Whether the delay in filing the notice of motion to set aside the ex-parte decree was condonable given the reasons stated by the appellant.
Javed Ahmed Mohd. Tauheed Shaikh
Atharali Muzafarali Khan
A. S CHANDURKAR
Asmita
As recorded by the court registry
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