Back
2010 Supreme(Bom) 423
In the High Court of Bombay at Goa
MR. JUSTICE N.A. BRITTO
Shrikant Shambu Volvoikar
Versus
Narendra Pandu Chatim & Others
SECOND APPEAL NO.30 OF 2000
Decided on: 17-03-2010
Shri A.P. Cardozo, Advocate for the Appellant. Shri Valmiki Menezes, Advocate for Respondent Nos.1 and 2.
Headnote:Civil Procedure Code, 1908 - Order V, Rule 10 and Order VII, Rule 1(c) - Maintainability of suit - Issue whether a suit can be filed against any unknown heirs of any party - Held - No - Suit cannot be allowed to be filed against unknown heirs of a deceased defendant because personal service cannot be effected on them.
Civil Procedure Code, 1908 - Order VII, Rule 1(c), Section 100 - Second appeal - Substantial question of law - Whether suit can be filed against any unknown heirs and whether First Appellate Court bound to dismiss suit? - Respondents-plaintiffs filed civil suit against two defendants for declaration, they are owners - Defendants described as unknown heirs - Trial Court decreed suit, declared plaintiffs as owners and directed delete names of defendants 1 and 2 - First Appellate Court allowed appeal partly and set aside order of trial Court only to extent of deletion of names - Held - Suit cannot be allowed to be filed against unknown heirs of deceased defendant - Summons cannot be served on defendant whose address not known - Suit dismissed - Appeal allowed. - Order VII, CPC deals with the particulars which a plaint is required to contain and Clause (c), Rule 1 mandates that, the plaint shall contain "the name, description and place of residence of the defendant, so far as they can be ascertained". Order V, Rule 10 provides for mode of service and it states that the service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. Needless to observe, the particulars required to he given in terms of Order VII, Rule 1, Clause (c) are for the purpose of enabling service on a defendant so that he can defend an action brought against him. If no address is given, obviously a defendant cannot be served and in case a defendant cannot be served, for want of address, any order or decree passed against him cannot affect his rights. The description given by the plaintiffs of respondent No. 2 is no description at all in the light of the provisions of Clause (c), Rule 1, Order VII, CPC, and, therefore no suit which is filed against a defendant with particulars which are not sufficient to identify and locate him/her and serve the summons is also not maintainable. It is to be noted that service on person of the defendant is the basic rule. Substituted service by publication is an exception and is meant only in cases contemplated in Rule 20, Order V, CPC. Plaintiffs had dealings with defendant No. 1 and ought to have found out who are the legal heirs.
A suit cannot be allowed to be filed against unknown heirs of a deceased defendant because personal service cannot be effected on them. Likewise, summons cannot be effected on a defendant whose address is a not known. If no service can be effected, obviously the defendant cannot defend the action. in such a situation substituted service can only be a farce. If a suit cannot be filed against unknown heirs as held by this Court in the case of Donald Gonsalves v. Penha de Franca Youth Club (supra) and other decisions cited herein above, a suit which is filed against a defendant with no address given to locate and serve summons on him, is also not maintainable. The learned trial Court having come to the conclusion that the judgment/decree of the learned trial Court was illegal, arbitrary and perverse had no other option, but to set it aside and dismiss the suit.
Consequently, both the questions stand answered accordingly. The second appeal is allowed and the suit of the plaintiff is hereby dismissed.
This is a Second Appeal. It was admitted on 21-7-2000 on the following substantial questions of law:-
1) Whether a suit can be filed against any unknown heirs of any party?
2) On the facts and circumstances of the case whether the learned Additional District Judge was bound to dismiss the suit?
2. The answer to the first question is in the negative and to the second question is in the affirmative. Both the said questions can be taken up together. Some facts are required to be stated to answer the said two substantial questions of law.
3. The dispute is regarding property surveyed under Nos.5/4 and 5/1 of Village Gaolim Moula in Tiswadi Taluka. The survey records showed the name of "Mrs.Mira Pinto" in the Occupant's column and that of the present Appellant in the Tenant's column. The name of one Narayan B. Shirodkar was shown in Tenants column of Survey No.5/4 along with that of Appellant. It appears that the Respondent Nos.1 and 2 (Plaintiffs in R.C.S. No.156/1995) had a mortgage in their favour of a property described under No.7987 constituted by "Lourdes Raquel Milagrina Pinto of Sangolda". The said Respondents as Plaintiffs filed the said Civil Suit against two defendants, inter alia, for declaration that they were owners in possession of the suit property. Defendant No.1 was described as "unknown heirs of late Lourdes Raquel Milagrina Pinto also known as Raquel Milagrina Pinto who was from Sangolda, Bardez, Goa, now residing at unknown place". Defendant No.2 was described as "Mrs. Mira Pinto, residing at unknown place".
4. As can be seen from the Judgment of trial Court both were served by publication and were ordered to proceed ex-parte. The records do not show that either of the Defendants were served by ordinary mode before proceeding to effect substituted service. However, the fact remains that the learned trial Court decreed the suit by a Judgment/Decree dated 2-7-1998, and in doing so the learned trial Court, not only declared that the plaintiffs were owners in possession of the suit property but also directed the deletion of the name of the said Defendant No.2 from Survey Nos.5/1 and 5/4 and also the name of Appellant i.e. Shrikant Shambu Volvoikar.
5. The Appellant being aggrieved with the Judgment/Decree dated 2-7-1998 preferred First Appeal, being First Appeal No.67 of 1998. The learned first appellate Court took up four points for consideration, and answered all the four points in favour of the Appellant but nevertheless allowed the appeal partly, and set aside the Judgment/Decree of the learned trial Court only to the extent it directed the deletion of the name of the Appellant from the survey records.
6. Shri A.P. Cardozo, the learned Counsel appearing on behalf of the Appellant, has submitted that the learned first appellate Court having given a finding on all the four points in favour of the Appellant, the learned first appellate Court had no other option but to dismiss the suit filed by the said plaintiffs. Learned Counsel has particularly referred to para 7 of the Judgment wherein the learned first appellate Court has given a finding that the learned trial Court fell in error in decreeing the suit against unknown heirs of Respondent No.3 (i.e. unknown heirs of late Lourdes Raquel Milagrina Pinto also known as Raquel Milagrina Pinto who was from Sangolda, now residing at unknown place). Learned Counsel further points out that the learned first appellate Court had also given a finding that there were no proceedings contemplated as against unknown heirs and that the trial Court had proceeded to decree the suit in a cavalier manner. In support of the said submissions Shri Cardozo, learned Counsel has placed reliance on a Judgment of this Court in the case of Donald Gonsalves v. Penha de Franca Youth Club (2002 (3) ALL MR 814) wherein this Court held that where a suit is filed against unknown legal heirs of a deceased person and summons is served on unknown heirs by substituted service, the ex-parte
