2018 Supreme(Bom) 1365
MRIDULA BHATKAR
Madhav Vishwanath Dawalbhakta (Dead) – Appellant
Versus
Bendale Brothers – Respondent
Advocates Appeared:
For the Petitioner: Mr. Nikhil Sakhardande, Mr. Pralhad D. Paranjape, Shubhra Paranjape.
For the Respondent: Mr. Ashok B. Tajane.
Judgement Key Points
- Petitioners (original plaintiffs) filed suit for specific performance based on agreement dated 4th April, 1996; summons issued to respondent (defendant) who did not appear despite alleged service, leading to ex-parte decree on 8th November, 2011. [4000576570002]
- Respondent filed application under Order 9 Rule 13 CPC to set aside ex-parte decree nearly two years later, with delay condonation application allowed; trial court rejected it finding service proper, but District Judge allowed appeal, set aside decree with costs, and restored suit. [4000576570002]
- For setting aside ex-parte decree under Order 9 Rule 13 CPC, court must be satisfied that summons not duly served or defendant prevented by sufficient cause from appearing. [4000576570005][4000576570017][4000576570018]
- Order 5 Rule 17 CPC covers procedure when defendant refuses service or cannot be found, requiring bailiff to affix summons on outer door or conspicuous part of house if not served with diligence. [4000576570006][4000576570015]
- Order 5 Rule 20 CPC allows substituted service where court satisfied defendant avoiding service or summons cannot be served ordinarily: by affixing copy at courthouse and conspicuous part of defendant's last known residence/business place, or in other manner court deems fit (including newspaper publication in locality of last residence/business). [4000576570007][4000576570008][4000576570009][4000576570010][4000576570011]
- Substituted service ordered by court is effectual as personal service (deeming fiction under Order 5 Rule 20(2) CPC), but court must record satisfaction and not grant mechanically; publication in newspaper does not require additional affixing of newspaper copy. [4000576570007][4000576570011][4000576570015]
- "Duly served" under Order 9 Rule 13 CPC requires proper legal service per Order 5, but court must consider if service effectively brought proceedings to defendant's knowledge; procedural compliance alone insufficient if defendant proves no actual knowledge due to factual circumstances. [4000576570021]
- Service is not empty formality or ritual; its soul is defendant's knowledge of proceedings; even with procedural compliance (including substituted service), if defendant shows actual lack of knowledge and approaches court, court must take realistic, just view beyond procedural wrangles and set aside ex-parte decree. [4000576570022]
- In this case, bailiff reported defendant "left premises" twice at given address; no actual knowledge to defendant who was unapproachable; ex-parte decree set aside despite procedural steps, with costs of Rs. 30,000/- on respondent; suit restored for trial by 31st December, 2018. [4000576570003][4000576570004][4000576570022][4000576570023]
- Ex-parte decree after considering plaintiff's evidence/documents is decree on merits, not routinely set aside, but subject to proper service challenge under Order 9 Rule 13 CPC. [4000576570013]
JUDGMENT :
MRIDULA BHATKAR, J.
1. Rule. Rule made returnable forthwith. By consent of both the parties, the Writ Petition is heard finally at the stage of admission.
2. This Writ Petition is directed against the order dated 13th November, 2017 passed by the District Judge-7, Pune for setting aside the ex-parte order for want of proper service on the defendant in the suit. For the sake of convenience, in order to avoid confusion, the parties are referred to by their original status.
3. The petitioners are the original plaintiffs, who have filed the suit for specific performance against the respondent/defendant on the basis of the Agreement dated 4th April, 1996. In Special Civil Suit No. 1491 of 2009, the Court issued summons on the defendant. However, the defendant did not appear though summons were duly served. The trial Court decreed the suit ex-parte on 8th November, 2011 after considering the affidavit-in-chief of the plaintiff and the documents on record. Nearly two years after, the respondent filed an Application for setting aside the said ex-parte order along with the Application for condonation of delay. The delay was condoned by the trial Court and the Application was numbered
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