The service of notice to any adult family member, including a female, is valid despite local amendments restricting it to male members, thus upholding the decree passed. Refusal to appear without sufficient cause maintains the decree's validity.

JUDGMENT:

MADHAV J. JAMDAR, J.

1. Heard Mr. Thorat, learned Counsel appearing for the Petitioners and Ms. Sahoo, learned Counsel appearing for the Respondent No.1.

2. The challenge in this Writ Petition is to the Judgment and Order dated 6th May 2016 passed by the learned Appellate Bench of the Small Causes Court, Mumbai in Misc. Appeal No.130 of 2014 in MARJI Application No.809 of 2013 and the Judgment and Order dated 25th February 2014 passed by the learned Judge, Small Causes Court, Mumbai in MARJI Application No.809 of 2013 in R.A.E. Suit No.3590 of 1990.

3. The learned Trial Court decreed the said Suit filed by the Respondents by Judgment and Decree dated 20th December 2012. The Petitioner filed Marji Application No.809 of 2013 seeking setting aside the Judgment and Decree dated 20th December 2012 on the ground that the decree passed is ex parte decree. The learned Trial Court dismissed the said Marji Application by Order dated 25th February 2014 inter alia on the ground that said Judgment and Decree dated 20th December 2012 is not an ex- parte decree but decree passed under Order XVII, Rule 2 of the Code of Civil Procedure, 1908 (“CPC”). The said Order of learned Trial Court is confirmed by the learned Appellate Court. Both the Courts also held that inspite of service of notice on multiple occasions, after restoration of the suit, the Defendants failed to appear in the suit and the Defendants have not proved any sufficient cause for non-appearance.

4. Before setting out the contentions raised by the learned Counsel appearing for the respective parties and consideration of the same, it is necessary to set out the relevant factual aspect. The relevant factual aspects are as under:

i. The RAE Suit No.3590 of 1990 has been filed by the Respondents/Plaintiffs- Kshtriya Dnyati Sabha, a registered Public Trust under the provisions of the Bombay Public Trust Act, 1950 and the Trustees of the said Trust against 9 Defendants i.e. persons from the same family i.e. Dastgir family who are the heirs and legal representatives of deceased original tenant - Mediwal Nagendra Dastgir. All the Defendants were represented in the suit by the same Advocate i.e. Advocate M. J. Virjee. All the Defendants have filed their common written statement on 16^th March 1992.

ii. The issues were framed in the said Suit on 27^th January 1998.

iii. The evidence of the Plaintiffs i.e. Vinod Mastkar (PW-1) and Vijaya Shoof (PW-2) was completed on 28^th May 2002. Thereafter, evidence of the Defendants - Sadashiv Madhiwal (DW-1) i.e. present Petitioner No.2 was closed on 7^th October 2002.

iv. In the meanwhile, after the Plaintiff and Defendants led the evidence and evidence closer pursis has been filed, subsequently, the said Suit was dismissed for default on 9th February 2005. Thus, before the dismissal of the Suit for default both the parties have led their respective evidence.

v. The restoration application of the said suit filed by the Respondents-Plaintiffs was dismissed. The Defendants were served with the notice of restoration application, however, they failed to remain present. The appeal filed challenging the dismissal of restoration application was allowed. The present Petitioners i.e. Defendants/ Respondents in said Appeal, were served of notice of said Appeal, however, they failed to appear. Therefore, the learned Appellate Court although set aside order of learned Judge, Small Causes Court, Mumbai of dismissing restoration application of the suit and consequently restored the suit, directed learned Trial Court to issue notice to the Defendants.

vi. After the restoration of the Suit, in view of the order passed by the learned Appellate Court, the learned Trial Court issued notices to all the parties to the Suit directing them to appear on 22^nd November 2011. Bailiff report shows that the Defendant No.9 personally accepted the notice and on behalf of Defendant Nos. 2 to 8 one Ramesh Mediwal who is near relative of the present Petitioners, had accepted the notice b