This judgment dismissed appeals against an order remanding a partition suit for fresh trial due to improper service of summons on partial defendants. The court held the remand was justified to ensure all parties were heard and found no merit in challenging the conclusion of improper service.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
17-AO-705-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 705 OF 2016
Jayant Vasant Agnihotri ... Appellant Versus Vijay Udhav Upasani & Ors. ...Respondents
WITH APPEAL FROM ORDER NO. 488 OF 2016
Jayant Vasant Agnihotri ... Appellant Versus Vishwanaath Nilkanth Agnihotri ...Respondent
Mr. Hrishikesh S. Shinde, for Appellant in both Appeals.
Mr. Chandrakant Chandratre for Respondent Nos.1 to 3 & 5, 6A to 6C & 12 in AO No.488 of 2016 and for Respondent Nos.1, 3 to 6 in AO No.705 of 2016.
Mr. Kush Lahankar i/by i/by Mr. S.R. Ganbavale for Respondent Nos.11A to 11E in AO No.488 of 2016.
CORAM : SANDEEP V. MARNE, J. DATE : OCTOBER 12, 2023.
P.C.:
Civil Appeal Nos.48 of 2004 and 47 of 2006 have been allowed and the
Judgment and Decree dated 31 July 2004 passed in Special Civil Suit No.38 of
Digitally signed by SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR JAMADAR Date:2023.10.16 13:18:35 +0530
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17-AO-705-2016.doc
1999 by Civil Judge Senior Division, Malegaon, has been set aside. The Appellate Court has remanded the suit to the trial Court for trial afresh.
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17-AO-705-2016.doc
to 5 under provisions of Order 5 Rule 20 of the Code of Civil Procedure by contending that the said Defendants were avoiding service of summons. I have gone through that application as well as order passed thereon by the trial Court on 18 December 1999. Firstly, the order is not legible. Secondly, the said order does not show that the trial Court has recorded a specific finding that the Defendant No.2 to 5 were actually avoiding service of suit summons. In fact no material was produced before the trial Court to demonstrate that Defendant No.2 to 5 were avoiding suit summons. In fact, from the bailiff reports dated 19 March 1999 and 4 December 1999, it is clear that the Defendant Nos.2 to 5 were not avoiding the suit summons in any manner. In the light of the above factual position, the finding recorded by the District Court about absence of service of suit summons on Defendant Nos.2 to 5 cannot be found fault with.
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District Court in remanding the suit for fresh trial, after it arrived at a conclusion that Defendant Nos.2, 3 & 5 were not properly served.
Appeals being devoid of merits, are dismissed without any order as to costs.
(SANDEEP V. MARNE, J.)
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3 issues framed by the court
Whether the impugned order remanding the partition suit for fresh trial on valid grounds of improper service can be disturbed.
Whether there was proper service of summons on Defendant Nos. 2 to 5 when bailiff reports indicated they were not avoiding service.
Whether the District Court correctly concluded that interference by this Court was not warranted.
1 provisions across 1 enactments
Jayant Vasant Agnihotri
Vijay Udhav Upasani
Vishwanaath Nilkanth Agnihotri
Sandeep V. Marne
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
