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2013 DIGILAW 517 (BOM)

Natvarlal D. Sarotia v. Bhagawati Shiyaram Patel

2013-03-04

S.C.DHARMADHIKARI

body2013
Judgment : Heard parties. Rule. By consent rule made returnable forthwith. This petition is by the original defendant and appellant who is aggrieved and dis-satisfied with the order dated 22nd March 2010 in Misc.Notice No.59 of 2008. That notice was moved by the petitioner in R.A.E. & R. Suit No.1554/2281 of 2006. 2. It is common ground that an ex parte decree which was passed in the suit on 3rd August 2007 has been executed on 28th January 2008 and possession of the suit premises has also been taken by the respondents. 3. It is the case of the petitioner defendant that he came to know about the ex parte decree passed against him in the suit on the very date namely the date on which he was dispossessed from the suit premises. He has made an application to set aside that ex parte decree. 4. The ex parte decree was passed after it was stated before the trial court that the petitioner - original defendant is a monthly tenant in respect of the room Nos.4 and 7. The monthly rent is of Rs.60/- per month. The tenancy was terminated on 3rd January 2006. The petitioner is stated to be in arrears of rent and permitted increased since June 2004 to August 2006. The notice was returned back with remark "intimation posted.". However, the notice, then, was sent by Under Certificate of Posting (UPC) which was received by the petitioner defendant. He is not ready and willing to pay the rent and therefore, lost protection of law. The second ground was that the petitioner has acquired alternate and suitable residential accommodation at Dahisar and shifted there. For the last more than three years the suit premises are kept locked. The condition of the building in which the suit premises is situate, is very bad and they can collapse any time. The petitioner has carried out illegal additions and alterations to the suit premises causing nuisance and annoyance to the neighbouring occupants. Thereafter, the allegation is that he is trying to sub-let or sell the premises. On such allegations, the suit came to be filed. The Court held that the petitioner remained absent in spite of service of summons. That is how para 2 of the judgment, in which the ex parte decree has been passed reads. Thereafter, the allegation is that he is trying to sub-let or sell the premises. On such allegations, the suit came to be filed. The Court held that the petitioner remained absent in spite of service of summons. That is how para 2 of the judgment, in which the ex parte decree has been passed reads. The suit could not have been decreed on the ground of arrears of rent on the allegation in the plaint itself because if the notice is dated 3rd January 2006 under which the tenancy was terminated, then, the plaint should not have stated that the petitioner is in arrears of rent since June 2004 to August 2006. Therefore, the judgment, though proceeds that this allegation is not proved, yet, it is stated that the respondent plaintiff has proved that the petitioner defendant is in arrears of rent. The finding on Point No.2 is in the affirmative. The suit has also been decreed on the ground of petitioner carrying on illegal additions and alterations of permanent nature with permission of the plaintiff respondent. It is also decreed on the ground that he has acquired suitable alternate accommodation. 5. It is stated that an affidavit was filed by the respondent plaintiff but since the petitioner remained absent, the suit was decreed on 3rd August 2007. 6. The application of the petitioner in Misc.Notice No.59 of 2008 stated that he was surprised to find lock on the rooms on 28th January 2008. He stated that he had gone to his native place on 15th January 2009. There was some dispute in the family. On making enquiries he was informed that he cannot enter the premises, because he has been dispossessed. He made an attempt to get assistance of the local police station. Thereafter, on 31st January 2008, he engaged an Advocate to file his vakalatnama on 1st February 2008. The record was inspected on 2nd February 2008. It is specifically stated that the summons was not served. The bailiff has made false report about alleged services and there is false report in spite of detailed information given by the petitioner's sister's daughter Mrs.Deepti Shah that the petitioner has gone out of Mumbai for one month due to sickness of his elder brother. It is specifically stated that the summons was not served. The bailiff has made false report about alleged services and there is false report in spite of detailed information given by the petitioner's sister's daughter Mrs.Deepti Shah that the petitioner has gone out of Mumbai for one month due to sickness of his elder brother. The certified copies of the record and proceedings further reveal that the decree came to be executed on the date mentioned in the notice at para 1. It is in these circumstances and when he alleged that he has not been received the notice terminating his tenancy, that the decree deserves to be set aside. In paras 6 and 7 of his application the petitioner has stated as under: "6. I say that during the month of November, 2006 myself and my wife was compelling to leave to my native place due to serious illness of my elder brother who died later on at my native place. This fact was aware to plaintiff. I say that during 10th November 2006 to 8th December 2006 my sister's daughter Smt.Deepa Bharat Shah and her husband Shri Bharat Gulabchand Shah were residing for looking after suit premises for my temporary absence and plaintiff came to know about my absence and got three false report of bailiff of this Court dated 17.11.2006, 28.11.2006 and 30.11.2006 though it is informed that I have gone to my native place for month and is expected after one month. I say that the plaintiff shown mere completion of bailiff's service in span of 13 days, as plaintiff was aware that I went to my native place and shall return after one month. I say that I am electric mechanics working at Mulund Mumbai highway and I go out at 8.00 am and return at 7.00 pm. I say that I am not at all served the suit summons hence I was not present when matters is called out for hearing and this is sufficient cause to set aside the ex parte decree passed on. I deny that there is any lady by name Mrs.Parvati as alleged in Bailiff's report." "7. I say that I am Gujarathi speaking man and I do not read Marathi newspaper. Hence summons published in Marathi newspaper on 2.2.2007 is not service upon me. I deny that there is any lady by name Mrs.Parvati as alleged in Bailiff's report." "7. I say that I am Gujarathi speaking man and I do not read Marathi newspaper. Hence summons published in Marathi newspaper on 2.2.2007 is not service upon me. I say that even application filed by plaintiff for substituted service will reveal that plaintiff has not make any averments in application that I am avoiding service of summons, but the Hon'ble Judge at his own gave order of paper publication which is contrary to law and the Hon'ble Judge should have given order to publish the notice in local news papers in the language known to me i.e. Gujarathi or Hindi. I say that as I am not reading Marathi newspaper, alleged service by newspaper publication is bad in law and I must get chance to defend the suit on merit after setting aside ex parte decree." 7. Thereafter, he has pointed out as to how the decree is vitiated even on merits and the reply was filed to this miscellaneous notice denying specifically the allegations that the suit summons was not served. It was stated that the demand notice was attempted to be served and equally the writ of summons. The bailiff's report shows that the petitioner defendant was not found and the suit premises is in locked condition. The three attempts made on 17th November 2006, 28th November 2006 and 30th November 2006 made by the bailiff resulted in the petitioner being served by substituted mode namely by RPAD and UCP and publication in local newspaper "Nav-Shakti". 8. Thereafter, it is alleged that the suit notice was returned back with postal remark "intimation posted". The service by UCP was not received back. This is a valid service and therefore, sufficient opportunities were given but he remained absent and the decree has been rightly passed ex parte. All the other allegations have been denied. Equally those in paras 6 and 7 of the Misc.notice. The respondent had stated in the reply that there is a lady by name Mrs.Parvati Shankar and her name is mentioned in the bailiff's report. It has been asserted that for the last more than three years nobody was residing in the premises. The affidavit filed by one Mrs.Deepti and her husband Bharat Shah are termed as false. 9. The respondent had stated in the reply that there is a lady by name Mrs.Parvati Shankar and her name is mentioned in the bailiff's report. It has been asserted that for the last more than three years nobody was residing in the premises. The affidavit filed by one Mrs.Deepti and her husband Bharat Shah are termed as false. 9. In sofar as the defendant before me not being aware of Marathi language it has been stated that one Sanjay Padwal is subscriber of Navshakti paper and residing at Ansari Chawl, Farid Nagar, Bhandup (West), Mumbai 400 078. He states that the newspaper is received by him daily. He was given the telephone number by the petitioner defendant as he was not residing in his room and instructed him to communicate to him anything on that telephone number. Hence, he gave call to the petitioner defendant on 2nd February 2008 at about 7.30 p.m. The petitioner defendant answered his call and thanked him for giving him information of the said public notice appearing against the defendant in the Navshakti paper. It is a local newspaper and Marathi is language of Maharashtra State and, therefore, the petitioner's contention that the notice was not issued in Hindi or Gujarati language is absurd and against public policy. 10. The trial court has relied upon such assertions of the respondent defendant and proceeded to observe that the present application for setting aside the ex parte decree was filed after the petitioner defendant lost possession. The case of the petitioner that during the month of November 2006, he himself and his wife was compelled to leave for his native place due to serious illness of his elder brother who died later on. During 10th November 2006 to 8th December 2006, the petitioner's sister's daughter Mrs.Deepa Shah and her husband were residing at the suit premises so as to look after the suit premises in the temporary absence of the petitioner and the allegation that the respondent managed to complete service through bailiff in 13 days because he was aware of the absence of the petitioner from the suit premises has been answered by the trial court without assigning any cogent and satisfactory reasons. 11. I expect that a judgment or order ought to not recite merely the facts. The submissions have not only to be reproduced but the trial court must deal with them. 11. I expect that a judgment or order ought to not recite merely the facts. The submissions have not only to be reproduced but the trial court must deal with them. After dealing with them, if the contentions of one of the parties or versions placed by them ought to be either accepted or rejected. That has to be done by giving reasons. One does not find any reason being assigned in this order of the trial court. There is only reproduction of contents of the affidavits, bailiff's report and then holding that bailiff visited the suit premises for service but as the defendant was not found, the bailiff could not serve. If the affidavits filed by the petitioner in support of his application to set aside an ex parte decree are disbelieved, then, the court record should have been referred to in detail. The court may disbelieve the affidavits coming later on but it should satisfy itself that the suit summons was served. If it was served and the allegation is with regard to any irregularity in service, then, Order IX Rule 13 of Code of Civil Procedure, 1908 makes it clear that the decree should not be set aside only on that ground. However, before that the court must record its satisfaction that the summons was duly served. To hold that even if the petitioner defendant went to his native place, he is faulted for not coming back in time. He is faulted for not being prudent. He is also faulted for not being present at the place of residence. However, it is pertinent to note that while passing the decree the trial court had not observed that the service was effected by substituted mode. I have for some purpose referred to the judgment which is delivered while passing ex parte decree. There is absolutely no reference therein as to how summons came to be served. However, it is pertinent to note that while passing the decree the trial court had not observed that the service was effected by substituted mode. I have for some purpose referred to the judgment which is delivered while passing ex parte decree. There is absolutely no reference therein as to how summons came to be served. If the petitioner was stated to be not found at the address and particularly at the suit premises then what prevailed the Court for making an order for substituted service, how and when it was made, what is the report of such service being placed on record and was it accompanied by the affidavit of the concerned officials and lastly whether substituted service was found to be a proper publication by the court, is something which the Court has not been careful and vigilant enough to state in the judgment based on which the ex parte decree came to be passed. The observations of the trial court with regard to validity of service of suit summons are to be found in paras 27 to 31 of the impugned order. Those are not based on the record. That is acceptance of the case as set out by the respondent. There is absolutely no application of mind on the part of the trial court. The trial court has in paras 32 to 35 of the impugned order observed as under:- "32. I find that local language of the Maharashtra State is Marathi and Government has accepted Marathi language is the court language. Therefore, only the defendant being Gujarathi, he cannot ask not to publish the summons in Marathi newspaper is sufficient and proper service." "33. It is presumption that if the notice is issued in daily newspaper publishing in locality then it must have read by the concern person to whom the notice is given. Therefore, once it is proved by the plaintiff that summons was published in daily newspaper circulating in locality then it can be said that it is valid service and in the present case publication of summons in the locality is valid service. Therefore, the defendant's contention that as he is not knowing Marathi language and he is Gujarati speaking person, alleged service in Marathi newspaper is bad in law, is not maintainable and devoid of merit." "34. Therefore, the defendant's contention that as he is not knowing Marathi language and he is Gujarati speaking person, alleged service in Marathi newspaper is bad in law, is not maintainable and devoid of merit." "34. The defendant's second contention is that his surname is Natwarlal D. Sorathiya and not Natwarlal D. Soritia as alleged in the plaint. Therefore, there is no correct name of the defendant in the suit as well as in the summons. According to the plaintiff, name of the defendant is not challenged by him prior to this suit. The defendant has alleged that his surname is Sorathia. The surname written in the plaint is Soritia as given by him and the same appears on the rent receipt. Even the surname Sorathia and Soritia has same pronounciation and persons in the locality and postal authority did not make any grievance nor the defendant has produced any document that he was known with that spelling "Sorathia" only." "35. The defendant shown spelling of his surname as Sorathia. In plaint spelling of the defendant shown as Sorotia. I find that there is not much difference in the spelling of surname of defendant. The defendant cannot take benefit of spelling in surname. The defendant's witness Shri Bharat Shah and Smt.Deepa Shah admitted that bailiff was came to the suit premises. In the suit summons the surname of defendant is shown as Sarotia. Therefore, this minor mistake cannot help the defendant." 12. To my mind, all this shows that the learned Judge is completely unaware of even the basic and fundamental aspects and namely that it is the court's satisfaction which is paramount and predominant in this case. To hold that the petitioner is expected to know Marathi language and that he is expected to subscribe to the Marathi newspaper despite being a Gujarati speaking person is something which is difficult to accept in the given facts and circumstances. Marathi language is Court language. However, it is not as if everybody who is residing in Maharashtra is fully conversant and well versed in Marathi language. If that were to be the case, no Hindi or Gujarathi language newspaper would have been published, circulated and sold and subscribed in Maharashtra/ Mumbai. Marathi language is Court language. However, it is not as if everybody who is residing in Maharashtra is fully conversant and well versed in Marathi language. If that were to be the case, no Hindi or Gujarathi language newspaper would have been published, circulated and sold and subscribed in Maharashtra/ Mumbai. The petitioner defendant, therefore, cannot be faulted for coming with an explanation that assuming without admitting that the summons was served by substituted mode and particularly by publication, then, still he had no knowledge of any such publication, pendency of proceedings and a decree being passed therein. To my mind, the order under challenge exhibits complete non application of mind and ignorance of even the principles enshrined in Order IX Rule 13 of Code of Civil Procedure, 1908. If the trial court and the lower appellate court had bothered to refer to Order IX Rule 13 of the CPC, possibly they would have been in a position to appreciate the arguments of both sides in a proper perspective. 13. Order IX Rule 6 sets out the procedure when only the plaintiff appears. Where the plaintiff appears and the defendant does not appear and when the suit is called out 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. Other contingency is when the summons is not served duly then, the court would direct second summons to be served. There is a third contingency which is dealing with a situation when a summons is served but not in due time to enable the defendant to appear and answer on the day fixed in the summons, then, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. Order IX Rule 6 (2) states that where it is due to plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the post-ponment. There is a reason behind all these namely, the procedural provisions are in aid of rendering justice. Order IX Rule 6 (2) states that where it is due to plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the post-ponment. There is a reason behind all these namely, the procedural provisions are in aid of rendering justice. The provision, then, specifies when defendant appears on the date of adjournment and assigns good cause, then, under Order IX Rule 7, the Court upon such terms as it may direct hear the defendant. Setting aside the ex parte decree is permitted if the court is satisfied that the summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called out for hearing and then, there are explanations and further Order IX Rule 13 as existing in the State of Maharashtra reads as under:- "Order IX Rule 13:- Setting aside decree ex parte against defendant -In case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that there was sufficient cause for his failure to appear when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also; Provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiffs' claim. Explanation I:- Where a summons has been served under Order 5 rule 15, on an adult male members having an interest adverse to that of the defendant in the subject matter of the suit, it shall not be deemed to have been duly served within the meaning of this rule. Explanation II: Where there has been an appeal against a decree passed ex parte under this Rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree." 14. I had to reproduce all this because one finds that such applications have been filed in the Small Causes Court and when they are placed before the trial court, although, they are well versed with the procedural as also substantive provisions, with reference to Order IX as amended and applicable to the State of Maharashtra, the applications to set aside the ex parte decree are invariably dismissed. There is then a justification given that there is a proper service. If there is a proper service, according to the court, then, there is no need to consider the cause shown, because, if the application is only made to set aside ex parte decree on the ground that the suit summons was not served, then, the court is not obliged to give any reasons, other than that aspect. If the case is that the suit summons was not duly served and the emphasis is on service and equally, there is a sufficient cause, which prevented the defendant from appearing when the suit was called for hearing, then, the court has to consider that cause as well in addition to whether the defendant was duly served with the suit summons or not. There is absolutely no requirement of dealing with the merits of the case. Equally, it is no answer to say that whether the suit property is slum or not is a matter which could have been raised when resisting the execution and enforcement of the decree in this case. There is total non application of mind because if the decree is already executed and enforced and the petitioner is dispossessed, then, at what stage will he possibly raise this objection has not been clarified at all. 15. There is total non application of mind because if the decree is already executed and enforced and the petitioner is dispossessed, then, at what stage will he possibly raise this objection has not been clarified at all. 15. When the Court is dealing with such an application and when the court is duly informed that the application to set aside ex parte decree is belated but for that also there is a cause shown, then, I do not see how the application of present nature could have been dismissed on the ground of limitation as well. In the present case, the learned Judge does not hold that the application deserves to be dismissed on the ground of delay alone but proceeds to consider it on merits. In this case, the learned Judge has not dismissed the application on the ground of delay but has in the lengthy order of 58 paras, considered that objection as well. If while considering that objection, the learned Judge opined that the petitioner defendant came with a case that writ of summons was not duly served, then, the cause for which Article 123 of the Limitation Act 1963 excludes a service by substituted mode while computing period of limitation should have cautioned the learned Judge while dealing with an application to set aside the ex parte decree. 16. To my mind, the trial Judge and equally the appellate bench of the court of small causes, which is, I am informed presided over by senior Judges in that court, failed in their duty in law in dealing with an application made by the petitioner. They have not dealt with and approached the entire case with a open mind as the attempt was to some how uphold the service that was effected in this case. The courts below were influenced to a great extent that the petitioner had also sought a relief of possession to be restored to him. In that endeavour and enthusiasm and not to grant that relief, that the decree itself was not set aside. To my mind, neither of the courts have bothered to peruse the main judgment in the suit. The courts below were influenced to a great extent that the petitioner had also sought a relief of possession to be restored to him. In that endeavour and enthusiasm and not to grant that relief, that the decree itself was not set aside. To my mind, neither of the courts have bothered to peruse the main judgment in the suit. If the judgment and decree both recite nothing about substituted mode of service, but in one line say that defendant remained absent in spite of service of summons, then, this was a fit case where the errors of the courts ought not to cause injustice. There was then, sufficient ground to accept mistake on the part of the court and with generosity. The petitioner may or may not be put back in possession but that is a distinct aspect as that is an element dealt with by section 144 of the CPC. Restitution need not follow in such cases automatically. Therefore, merely because restitution was sought and relief of putting back in possession, was the relief prayed but that by itself does not mean that the application to set aside the decree must be dismissed. 17. The discussion about substituted service and what substituted service means is completely worthless, factually meaningless and in any way in this case the trial court has not observed in its judgment that the service was effected by a substitute mode. In this case, even the substitute is not found to be satisfactory by me. There is no alternative but to set aside the decree passed in this case for possession and restore the suit to the file of trial court for being heard afresh and decided on merits and in accordance with law. 18. As a result of the above discussion, the petition succeeds. The Rule is made absolute accordingly. The impugned judgment and order is quashed and set aside. The suit being R.A.E. & R. Suit No.1554/2281 of 2006 is restored to the file of trial court for being decided afresh on merits and in accordance with law. No costs. If the written statement is filed within eight weeks from today, the same be taken on record and issues be framed on the basis of the pleadings for being answered by the trial court, uninfluenced by any observations in the impugned order and equally the earlier judgments. No costs. If the written statement is filed within eight weeks from today, the same be taken on record and issues be framed on the basis of the pleadings for being answered by the trial court, uninfluenced by any observations in the impugned order and equally the earlier judgments. All contentions of both sides are kept open.