Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 1559 (BOM)

Varun Trading Co. v. Mahesh Associates

2011-12-20

D.G.KARNIK

body2011
JUDGMENT Heard learned counsel for the applicant (original defendant no.5) and counsel for the plaintiff who opposes the motion. 2. This motion is taken out by the defendant no.5 for setting aside of a decree dated 6 November 1998 passed in Suit No.1347 of 1993 on the ground that suit summons was not served on the applicant. 3. The suit summons of the suit was sent to defendant nos. 1 to 5 by the office of the Sheriff of Mumbai by registered post prior to December 1997. It appears that the packets were returned unserved with the remark "unclaimed". An affidavit of service was filed by the bailiff in the office of the sheriff of Mumbai on 22 December 1997 stating that the packets sent by registered post were returned unclaimed. The court considered the returned notices to be a good service on the defendants and decided to proceed ex-parte in the absence of defendants as they had not appeared. The court then passed a decree against defendant nos. 1 to 5 in the sum of Rs. 6,00,000/- together with interest at 15% p.a. 4. The present notice of motion has been taken out by defendant no.5 alleging that she was not aware of the suit and was not properly served. Counsel for the defendant no.5 invited my attention to the address of defendant no.5 shown in the plaint which is written as "7, Gopi Kanaiya Co-operative Housing Society Ltd, Swami Vivekanand Road. Khar, Mumbai 400052". Counsel submitted that though the defendant no.5 resides in Gopi Kanaiya Cooperative Housing Society Ltd, she resides in flat no.1 and not in flat no. 7. The address mentioned in the plaint is erroneous. Summons was also sent at this erroneous address. In paragraph no. 7 of the affidavit in support of the motion, defendant no.5 has specifically mentioned that she resides in flat no.1 and not in flat no.7. The remark "unclaimed" made by postman at best would show that postman had delivered the Intimation at flat no.7 but nobody came to collect the envelope containing the summons. If the intimation was delivered at the wrong address, it cannot be said that defendant no.5 failed to collect the summons despite intimation. In my view, the summons of the suit was not properly served on the defendant no.5. 5. If the intimation was delivered at the wrong address, it cannot be said that defendant no.5 failed to collect the summons despite intimation. In my view, the summons of the suit was not properly served on the defendant no.5. 5. Order 9 Rule 13 of the Code of Civil Procedure (for short "the Code") provides that in any case in which a decree is passed ex-parte against the defendants, he may apply to the court by which decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, court shall make an order for setting aside the decree against him. As I have held that the summons was not properly served, decree is liable to be set aside under Order 9 Rule 13 of the Code. 6. Mr. Mehta, learned counsel for the original plaintiffs submitted that the decree in the present case was passed under Order 8 Rule 10 of the Code and therefore, it cannot be said aside under Order 9 Rule 13 of the Code. In support, he relied upon a decision of this court in Dhanvantrai R. Joshi Vs. Satish J. Dave and others, 1998 (3) Mh.L.J. 924 : 1 1998(4) AllMR 509 ). In that case, a Division Bench of this court has held that Order 9 Rule 13 of the Code does not apply to a decree which has been passed under Rule 5 or Rule 10 of Order 8 of the Code. In my view, the present decree is not passed under Rule 5 or Rule 10 of Order 8 of the Code but is passed under Order 9 Rule 6 of the Code. Order 8 Rule 10 of the Code says that Where a party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the court, the court shall pronounce the judgment against him. Rule 10 contemplates that the defendant is required to file the written statement under rule 1 or rule 9. It has been held by the Supreme Court in the case of Iridum India Telecom Ltd, Bombay Vs. Motorola Inc. Rule 10 contemplates that the defendant is required to file the written statement under rule 1 or rule 9. It has been held by the Supreme Court in the case of Iridum India Telecom Ltd, Bombay Vs. Motorola Inc. 2004 2 Bom.C.R. 530 : 2004(1) Mh.L.J 532 : [ 2004(1) AllMR 418 ] that the provisions of the Original Side Rules relating to the service of writ of summons and filing of the written statement would prevail over Code of Civil Procedure. Written statement is required to be filed by the defendant within the time allowed by the Bombay High Court (Original Side) Rules and not within the time specified in Order 8 Rule 1 of the Code. Rule 1 of Order 8 of the Code was not applicable to the present case. Rule 10 of Order 8 of the Code was also not applicable as time was not fixed under Order 8 Rule 1 of the Code. 7. Even otherwise, a distinction must be drawn between a case where the defendant does not appear in the matter at all and the court proceeds ex-parte against him and a case where the defendant appears but does not file the written statement either within the time specified under Rule 1 or Rule 9 of Order 8 of the Code. Order 8 Rule 10 of the Code would apply only in cases where the defendant has appeared in the suit but has not filed the written statement. It would not apply to a case where the defendant does not appear at all and the court decides to proceed ex-parte against him. The word "ex-parte" contemplates that the court proceeds in the absence of a person. Where the defendant does not appear at all, the court proceeds ex-parte against him. Order 9 Rule 6 of the Code says that where the plaintiff appears and the defendant does not appear when the suit is for hearing then if it is proved that the summons was duly served, the court may make an order that the suit be heard ex-parte. Order 9 Rule 6 of the Code says that where the plaintiff appears and the defendant does not appear when the suit is for hearing then if it is proved that the summons was duly served, the court may make an order that the suit be heard ex-parte. Thus, when the defendant does not appear after service of a summons, the court proceeds ex-parte under Order 9 Rule 6 of the Code Where the court proceeds ex-parte against the defendant under Order 9 Rule 6 of the Code and passes a decree, such decree cannot be said to be a decree passed under Order 8 Rule 10 of the Code. I therefore hold that the decree in the present case was not passed under Order 8 Rule 10 of the Code but was passed by the court which proceeded ex-parte against the defendants under Order 9 Rule 6 of the Code. This being a position, the judgment of this court in Dhanwantrai R. Joshi & ors, [ 1998(4) AllMR 509 ) (supra) is not applicable to the facts of the case. 8. Since it is proved by the applicant-defendant no.5 that the suit summons was not served upon her, the decree is liable to be set aside under Order 9 Rule 13 of the Code, Accordingly, ex-parte decree is set aside and notice of motion is allowed in terms of prayer clause (b) which reads as follows:- (a) That the Ex-parte Decree dated 6.11.1998 be set aside and quashed against the Defendant no.5 and the suit be restored on file and the same be heard on merits. 9. Taking into consideration the fact that the suit is old and filed in the year 1993, hearing of the suit shall be expedited. Defendant no.5 through her counsel waives service of writ of summons of the suit. Defendant no.5 is directed to fill written statement within 12 weeks. Ordered accordingly.