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2015 DIGILAW 1488 (BOM)

Janglu v. Neeraj Relators Private Limited

2015-07-07

A.P.BHANGALE

body2015
Judgment : 1. Heard learned counsel for the parties. Admit. R & P is already received. Taken up for final hearing forthwith by consent of parties. 2. Respondent/plaintiff M/s Neerja Realtors Private Limited filed Special Civil Suit No. 184 of 2011 against appellant/defendant for specific performance of contract, declaration and permanent injunction. Parties hereinafter shall be referred to as per their original status in the suit. 3. Defendant agreed to sell suit property to plaintiff for a total consideration of Rs. 13,04,391/out of which defendant received part consideration of Rs. 3,26,000/and remaining amount of consideration was to be paid at the time of execution of sale deed. Agreement for Sale was executed on 15.7.2006. Defendant did not comply with certain terms of agreement due to which sale deed could not be obtained. Since, according to plaintiff, that amounted to refusal to perform part of his contract by defendant, he filed suit for specific performance of contract. Plaintiff sought direction that defendant may be compelled to comply with the terms of agreement to sell and then to execute sale deed in favour of plaintiff and if defendant fails to execute sale deed, the Court should execute sale deed on his behalf in favour of plaintiff. 4. Learned trial Judge vide his judgment and order dated 13th June 2014 partly decreed the suit. In paragraph 6, learned trial Judge noted that defendant was served by paper publication, but he failed to appear and hence, suit proceeded exparte against him by order dated 29.11.2011. This judgment and order is assailed in this appeal. 5. Learned counsel for the appellant submits that defendant was not served with suit summons and there was no “due” service of suit summons upon defendant in any manner. He also tried to persuade me as to how impugned judgment is bad in law on merits of the case. 6. Learned counsel for respondent/plaintiff supported the impugned judgment and strenuously urged that there was proper service of suit summons on defendant. He prayed for dismissal of appeal. 7. Roznama maintained in the civil suit shows that twice summons was sent to defendant and the same were returned unserved. On 2.9.2011 when the suit was fixed, plaintiff filed application under Order V, rule 20 (1A) CPC for service of suit summons on defendant by paper publication. On 29.11.2011 after paper publication, the Court proceeded exparte against the defendant. 7. Roznama maintained in the civil suit shows that twice summons was sent to defendant and the same were returned unserved. On 2.9.2011 when the suit was fixed, plaintiff filed application under Order V, rule 20 (1A) CPC for service of suit summons on defendant by paper publication. On 29.11.2011 after paper publication, the Court proceeded exparte against the defendant. Exparte order reads thus : “Deft. Served by public notice in daily newspaper Lokmat Dt 4.10.11. But he remained absent. Suit proceeded Exparte against the deft.” sd/Judge (29.11.11)” 8. Order V, rule 20 of the Code of Civil Procedure reads as under : “20. Substituted service. (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Courthouse, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, order in such other manner as the Court thinks fit. (1A) Where the Court acting under subrule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is known to have actually and voluntarily resided, carried on business or personally worked for gain. (2) .... (3) ....” 9. Bailiff report dated 7.4.2011 on the back side of the summons shows that when bailiff went to the village for service of summons, villagers told him that defendant was not residing there and he left the place before two years and they feigned ignorance about his new address. Hence, bailiff returned the summons. Bailiff Report or for that matter, record of the lower court no where shows that the Court thereafter ordered affixing a copy of summons in some conspicuous place in the Courthouse and also upon some conspicuous part of the house in which the defendant was known to have last resided or in any other manner, as provided under Order V, rule 20 (1) CPC. Moreover, order of the trial Court permitting service of summons through newspaper publication under Order V, rule 20 (1A) CPC is cryptic inasmuch as the Court has not recorded its satisfaction that there is reason to believe that the defendant in this case was keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. It is no where found in the present case that the serving officer had followed procedure when defendant was not found at the place where he was last residing as contained in Order V, rule 17 CPC. It is also not noticed that in addition to the service to be effected through a bailiff, a summons was sent to defendant to the address given by the plaintiff by registered post with acknowledgment due. It is apparent the trial Judge in this case has totally ignored the provisions contained in Chapter III as to the Appearance of Defendant of the Civil Manual issued by the High Court of Judicature (Appellate Side), Bombay for the guidance of Civil Courts and Officers subordinate to it. 10. In view of the above discussion, impugned judgment and order needs to be quashed and set aside. I do it accordingly. Parties are directed to appear before the trial Court on 31st July 2015. Mr P. K. Mishra, learned counsel waives service for defendant. Trial Court shall proceed further with the suit; receive Written Statement of appellant/ defendant; frame issues; allow the parties to lead evidence and decide the suit on merit in accordance with law. Learned trial Court shall endeavour to dispose of suit as early as possible. No order as to costs.