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Bombay High Court
SHARAD MANOHAR
Nivrutti Nana Waghmare - Appellant
Versus
Narayan Mahadeo Mokal - Respondent
Decided On : 02/04/1980
CIVIL PROCEDURE CODE - Order 3, Rule 5 - Applicability - Service of notice - Ex parte decree - Setting aside - Limitation - Condonation of delay - Bombay Rent Act - Applicability of Civil Procedure Code.
Fact of the Case:
The petitioner, a tenant, was served with an ex parte decree for eviction from the suit premises. He filed an application to set aside the ex parte decree, which was dismissed by the trial court and the appellate court. The petitioner filed a writ petition challenging the orders of the lower courts.
Finding of the Court:
The court held that the service of notice upon the petitioner's Advocate would have been as effective as serving the petitioner personally. The respondent's failure to serve the notice upon the petitioner's Advocate was an attempt to keep the petitioner in the dark about the proceedings. The court also held that the delay in filing the application to set aside the ex parte decree could be condoned under Section 5 of the Limitation Act.
Issues: 1. Whether the service of notice upon the petitioner's Advocate would have been as effective as serving the petitioner personally? 2. Whether the respondent's failure to serve the notice upon the petitioner's Advocate was an attempt to keep the petitioner in the dark about the proceedings? 3. Whether the delay in filing the application to set aside the ex parte decree could be condoned under Section 5 of the Limitation Act?
Ratio Decidendi: 1. Order 3, Rule 5 of the Civil Procedure Code provides that any process served upon a party's pleader is as effectual for all purposes, as if the same had been given to or served upon the party in person, unless the Court otherwise directs. 2. The respondent's failure to serve the notice upon the petitioner's Advocate was an attempt to keep the petitioner in the dark about the proceedings, as evidenced by the fact that the respondent knew the petitioner's address but chose to serve the notice at the suit premises where the petitioner was not residing. 3. Section 5 of the Limitation Act allows for the condonation of delay in filing an application to set aside an ex parte decree if the applicant can show sufficient cause for the delay.
Final Decision: The court set aside the ex parte decree and the orders of the lower courts, and directed the trial court to dispose of the petitioner's application for restitution of the suit premises within 15 days from the date of the application.
2. By a notice dated 15-10-1969 the respondent terminated the petitioner's tenancy and demanded the arrears of rent due from the petitioner. However, it is clear that even before this notice, an application was filed by the petitioner, along with the other tenants of the chawl, for fixation of standard rent in respect of the various tenements in the chawl including the suit premises. In those proceedings for fixation of standard rent, the Court also passed an order fixing interim rent with effect from 1-5-1969 at the rate of Rupees 8-00 P.M.
3. Later on, on 1st February, 1971, the respondent gave another notice to the petitioner. In the notice the fact that the tenancy was terminated previously by his notice dated 15th Oct. 1969 was referred to. Likewise the fact that the Court had fixed interim rent with effect from 1-5-1969 was also referred to. By that notice dated 1st Feb., 1971, the respondent alleged that the petitioner had unlawfully sublet the suit premises to another person and that he was not staying in the suit premises. Statement was made in the said notice that the respondent would file a suit for ejectment against the petitioner in those circumstances.
4. Thereafter on 14-4-1971 an ejectment suit was filed by the respondent in the Court of Small Causes at Bombay. The grounds urged in the said suit were that : (1) the petitioner was in arrears of rent from 1-3-1969 till 13-9-1969 and that (2) the petitioner had unlawfully sublet the suit premises to another person. However, it is common ground before me that this averment regarding arrears of rent was manifestly a mistake. Mr. Vashi, appearing for the petitioner has placed before this Court, a chart showing the various dates on which the amounts of interim rent as fixed by the Court were deposited by the petitioner, Mr. Shah, appearing for the respondent, has admitted the statement as correct. From the said statement it is clear that the petitioner-tenant had gone on depositing the interim rent in the Court mostly from month to month. But this is not all. As a matter of fact, the respondent has even withdrawn the amounts deposited by the petitioner in the Court from time to time. In view of this position the averment in the plaint that the petitioner was in arrears on the date of the suit was clearly erroneous.
5. The petitioner filed his written statement in the said suit on 13-1-1972. He denied that he was in arrears of rent and he pointed out that the application for fixation of standard rent was actually pending in the same Court said that he had gone on depositing the amounts in the said Court. He also denied that he had sublet the suit premises to any other person.
6. This suit was on board on 21-1-1972 for scrutiny. What is meant by this is that this is the first date of hearing on which the Court examines the nature of the contentions of the rival parties in the suit and decides the time when the suit should be fixed for hearing. On that date the suit was ordered to be placed on the priority warned list. However, there is no dispute that this means practically nothing. A suit which is on the priority warned list may take any number of years for reaching final hearing and this position is not disputed before me.
7. On 20-9-1973 the respondent took out a motion before the Court for expeditious hearing of the suit. In that application the respondent specifically stated that the petitioner was not staying in the suit premises and that his whereabouts were not known. In the said application it was also stated that the petitioner's application for fixation of standard rent has been dismissed by the Court on 14-9-1973 and that the petitioner was
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