Shaikh Afsar Shaikh Habib vs Shaikh Hamid Shaikh Habib and Others — Bombay HC (2026) — LawSathi Research

Shaikh Afsar Shaikh Habib vs Shaikh Hamid Shaikh Habib and Others — Bombay HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal from Order allowed; impugned judgment and decree passed in Regular Civil Appeal No. 117/2023 on 06.03.2025 quashed and set aside; parties relegated to the Appellate Court to decide the appeal expeditiously on its own merits on the basis of material available on record; pending Civil Application disposed of.

Issue for consideration

Whether it was open to the Appellate Court in Regular Civil Appeal No. 117/2023 to examine whether the summons were duly served upon the defendants and whether they had any opportunity to participate in the proceedings, given that the defendants neither applied to set aside the ex parte decree (Order IX Rule 13 CPC) nor filed written statements, and pursued the appeal under Section 96 CPC instead. +1 more

Court's answer

It was not open for the Appellate Court to examine whether the summons were duly served upon the defendants and whether they had any opportunity to participate in the proceedings.

Ratio / Principle

Having chosen not to file an application for setting aside the ex parte decree and having appealed under Section 96 CPC, the defendants are estopped from raising a challenge on the procedural aspect; having not contested the matter by written statement, they can press only the merits of the matter on the material before the Courts.

Key takeaways

The remand of the matter for extending fair opportunity to the defendants, who did not resort to Order IX Rule 13 of the C.P.C., is unwarranted; the order of remand was passed in a cavalier manner and is against the law laid down by the Supreme Court in Shivkumar and others Vs. Sharan Basappa (2021) 11 SCC 277.ratio¶7
The substantial questions of law (already formulated by this Court) are answered in favour of the appellant.ratio¶7
Since the earlier Regular Civil Suit No. 17/1982 filed by respondent no.1 was dismissed on 30.09.1982 and counsel's uncontroverted statement to that effect stands, the appellate Court should have decided the appeal on its own merit on the available material rather than remanding it.

Detailed headnote1 paragraphs

Bombay High Court (Aurangabad Bench), single Judge (SHAILESH P. BRAHME, J.), 04.02.2026: Appeal from Order No. 24/2025 (with Civil Application No. 5528/2025) by Shaikh Afsar Shaikh Habib allowed against the judgment and decree dated 06.03.2025 in Regular Civil Appeal No. 117/2023, which flowed from his ex parte decree in Regular Civil Suit 45/2006 (administration of estate). Because the defendants in RCA 117/2023 neither sought setting aside of the ex parte decree under Order IX Rule 13 C.P.C. nor filed written statements, preferring an appeal under Section 96 CPC, they are estopped from challenging service of summons or their opportunity to participate; accordingly the appellate court's scrutiny of service and its remand of the matter for fresh opportunity were held unwarranted and passed in cavalier manner, contrary to the law laid down in Bhanukar Vs. Archana (2005 (1) SCC 787) and Shivkumar and others Vs. Sharan Basappa ((2021) 11 SCC 277). The substantial questions of law were answered in favour of the appellant; the impugned judgment and decree in RCA 117/2023 was quashed and set aside and the parties were relegated to the Appellate Court to decide the appeal expeditiously on its own merits on the record; the pending Civil Application was disposed of.

2026:BHC-AUG:6000

79 AO 24 15.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

79 APEAL FROM ORDER NO. 24 OF 2025 WITH CIVIL APPLICATION NO. 5528 OF 2025 IN AO/24/2025

SHAIKH AFSAR SHAIKH HABIB VERSUS

SHAIKH HAMID SHAIKH HABIB AND OTHERS

Advocate for the Petitioner : Mr. Manjiri Achutrao Kulkarni

CORAM : SHAILESH P. BRAHME, J. DATE : 04.02.2026

PER COURT :

Heard Smt. Kulkarni, learned counsel for the appellant.

None appears for the respondents despite indication on earlier occasions for final disposal of the Appeal from Order at the admission stage.

This Court already formulated substantial questions of law. Accordingly learned counsel advanced arguments to demonstrate that impugned order was unsustainable and totally unwarranted.

Appeal from order is emanating from Regular Civil Suit 45/2006 preferred by present appellant for administration of the estate and the consequential relief as against defendant no. 1 to 6. The suit proceeded ex parte. The defendant nos. 7 and 8 though appeared did not file written statement. Being aggrieved by decree passed by the trial court, the defendant nos. 2 and 3 preferred Regular Civil Appeal No. 117/2023, in which impugned order is passed.

At the outset it is necessary to make it clear that it was not open for

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the Appellate Court to examine whether the summons were duly served upon the defendants and whether they had any opportunity to participate in the proceedings, in view of law laid down by the Supreme Court in the matter of Bhanukar Vs. Archana; 2005 (1) SCC 787 , the defendants preferred not to file application for setting aside ex parte decree and preferred Regular Civil Appeal under section 96 of the Code of Civil Procedure. They are estopped from raising challenge on the procedural aspect. They did not contest the matter by filing written statement. Therefore, they can harp upon merits of the matter based upon the material before the Courts.

It is pointed out by the learned counsel Mrs. Kulkarni that Regular Civil Suit No. 17/1982, which was filed by respondent no.1 Shaikh Hamid was ultimately dismissed vide judgment dated 30.09.1982. In that case attempt for settlement was made but that was not materialized. The statement made by the learned counsel has not been controverted and there is no reason to disbelieve those. In that view of the matter, the appellate Court should have decided the matter on its own merit on available material.

The remand of the matter for extending fair opportunity to the defendants, who did not resort to Order IX Rule 13 of the C.P.C. and diligently prosecuted the matter is unwarranted. The order of remand is passed in cavalier manner and this is against law laid down by the Supreme Court in the matter of Shivkumar and others Vs. Sharan Basappa (2021) 11 SCC 277 . The substantial questions of law need to be answered in favour of the appellant. I, therefore, pass following order:

ORDER

(I) Appeal from Order is allowed.

(II) Impugned judgment and decree passed in Regular

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Civil Appeal No. 117/2023 on 06.03.2025 is quashed and set aside.

(III) The parties are relegated to the Appellate Court and it shall decide the appeal expeditiously on its own merits on the basis of material available on record.

(IV) Pending Civil Application is disposed of.

( SHAILESH P. BRAHME, J.)

mkd/-

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