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2011 Supreme(Bom) 589
2011 (5) ALLMR 139
High Court of Judicature at Bombay
MR. JUSTICE D.G. KARNIK
Yeshwant Govind Shivkar & Others
Versus
Bhaskar Chavan & Others
WRIT PETITION NO. 3228 OF 2001
Decided On: 07-06-2011
For the Petitioner:P.G. Lad, Advocate.
For the Respondents:Ashutosh Gole, Advocate.
Headnote:Constitution of India - Articles 226 and 227-Civil Procedure Code, 1908, Section 144-Application for Restitution-Ex parte decree for eviction of tenant set aside-Application by tenant must be filed under Section 144 of Code-Order of restoration of possession in nature of restitution cannot be passed without affording opportunity to landlord of being heard-Order, restoring possession of premises to tenant liable to be set aside.-After the ex parte decree was set aside, the proper remedy for the petitioner is to make an application for restitution under Section 144 of the Code. The order for restoration of possession, which is in the nature of restitution, could not have been passed without an application under Section 144 of the Code and that too without an opportunity to the petitioner to oppose.
Constitution of India - Articles 226 and 227-Civil Procedure Code, 1908, Order V, Rule 20-A- Service of summons-Irregularity in- Appellate Court, after re-examining oral and documentary evidence held no proper service of summons-Said finding of fact not perverse-Cannot be set aside in exercise of writ jurisdiction under Articles 226 or 227 of Constitution.-After carefully re-examining the oral and documentary evidence, the appellate Court has recorded an unequivocal finding of fact that the summons was properly served on the respondent, in view, the said finding of fact is a possible finding of fact and is certainly not a perverse finding. As such, it cannot be set aside by re-appreciation of evidence in exercise of writ jurisdiction under Article 227 of the Constitution of India.
Civil Procedure Code, 1908 - Section 115-Revision-Remedy of-Availability of-Ex parte decree of eviction against tenant-Set aside in appeal-Writ petition against by landlord-Admitted 10 years ago-No objection as to maintainability of petition raised by tenant in hearing at stage of admission-Objection by tenant that alternate adequate efficacious remedy available to landlord under Section 115 of Code at this stage-Not tenable-Liable to be rejected.-Counsel for the respondent raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioner has an alternate adequate and efficacious remedy by way of revision under Section 115 of the Code and, therefore, the petitioner should not be entertained. The petitioner has been filed in the year 2000 and has been admitted after hearing the respondent by an order dated 16th August 2001. At the stage of admission, the respondent did not raise the objection about the availability of alternate remedy and/or about maintainability of the petition. Since the petition has been admitted 10 years ago without any objection by the respondent about the availability of alternative remedy, the respondent cannot be allowed to raise the objection at this stage.
Civil Procedure Code, 1908 - Order IX, Rule 13-Constitution of India, Articles 226 and 227-Setting aside of ex parte decree-Bailiff went to respondent’s house for service of summons-Noted presence of wife of respondent only at house-Bailiff not told respondent’s wife about suit summons-Respondent had no knowledge of suit and date of hearing-Contention that decree cannot be set aside in view of proviso to Order IX, Rule13 of Code deserves to be rejected.-The bailiff had only noted the presence of the wife in the house, There is nothing on record to show that the bailiff had told the petitioner’s wife that it was a summons of the suit and that the suit was fixed before a particular Court on a particular date. At the most, by the bailiff’s visit the wife could have become aware that some legal proceedings had been instituted against her husband, but that would not include the knowledge of a any particular suit or the present suit. The respondent and his wife would not necessarily know that their landlord had filed the present suit in the Small Causes Court at Mumbai. There could possibility be of any suit by any person in any Court. Merely because the bailiff had gone to his house it cannot be said that the respondent had the knowledge of the present suit and its date of hearing. There is nothing on record to show that the respondent had the knowledge of the present suit and the knowledge of the date fixed for hearing with sufficient time to enable him to appear and answer the plaint. Therefore, the contention that the decree cannot be set aside in view of proviso to Order IX, Rule 13 of the Code has to be rejected.
1. This petition under Article 227 of the Constitution of India is directed against the judgment and order dated 24th April 2001 passed by the Appellate Bench of the Small Causes Court, Mumbai in Appeal No. 671 of 2000 setting aside the judgment and order of the learned Single Judge and thereby allowing Misc. Notice No. 440 of 2000 taken out by the respondent for setting aside an exparte decree.
2. The original petitioner who is now represented by his legal heirs is the landlord. The original respondent who is now represented by his legal heirs was the tenant of the petitioner in respect of a room bearing no. 10 at 106/D, Hirabai Govind Shivkar Niwas, Shriram Galli, Worli Koliwada, Mumbai-400025, (for short “the suit premises”). The petitioner filed a suit bearing RAE & R Suit No. 729/1667 of 1995 against the respondent for possession. The suit summons was served on the respondent not personally but by substituted service under Order 5 Rule 20 of the Code of Civil Procedure (for short “the Code”). Since the respondent did not appear, the Court passed an exparte decree on 28th October 1999 but with a direction that it shall not be executed until the notice of execution petition was served on the respondent. Accordingly the petitioner took out a notice for execution which also appears to have been served on the respondent by substituted service under Order 5 Rule 20 of the Code. The respondent did not appear and therefore the execution proceeding was proceeded with exparte and the petitioner recovered possession of the suit premises from the respondent on 26th June 2000. Immediately thereafter on 29th June 2000, the respondent applied for setting aside of the exparte decree by making an application under Order 9 Rule 13 of the Code. By an order dated 25th July 2000, the application was dismissed by the trial Court. However, the Civil Appeal No. 671 of 2000 was allowed by the appellate Bench of the Small Causes Court by its order dated 24th April 2001. That order is impugned in this petition.
3. Learned counsel for the respondent raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioner has an alternate adequate and efficacious remedy by way of revision under section 115 of the Code and, therefore, the petition should not be entertained. The petition has been filed in the year 2000 and has been admitted after hearing the respondent by an order dated 16th August 2001. At the stage of admission, the respondent did not raise the objection about the availability of alternate remedy and/or about maintainability of the petition. Since the petition has been admitted 10 years ago without any objection by the respondent about the availability of alternative remedy, the respondent cannot be allowed to raise the objection at this stage.
4. According to the respondent tenant, the suit summons was never served upon him and he was not aware of the exparte decree. Even the notice of execution was also not served upon him and he was also not aware of the execution proceeding. Only after he was dispossessed on 26th June 2000 he came to know about the exparte decree and immediately thereafter applied for setting aside of the exparte decree on 29th June 2000. In the application which has been affirmed on oath, the respondent has stated about the non-service of the suit summons. He has further stated that when his advocate Mr. P.K. Shetty took search of the suit proceedings after the execution it was revealed that the suit summons was shown to have been served on the respondent by pasting on the outer door of the suit premises as well as by registered post A.D. The search further revealed that the suit summons sent by registered post A.D. was returned back with the endorsement “refused”. He has affirmed on oath that the summons was not pasted on the outer door by the court bailiff though the bailiff report says of the summons having been so pasted. In the affidavit, he further stated that
