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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.493 OF 2021

WITH

INTERIM APPLICATION NO. 3849 OF 2021

Jayapaalan S. Pillai, also known as

J.S.Pillai, Age : 60, Occupation :

Business, Proprietor of “Brilliant

Fabricators, at Gala No.837, Janki Industrial Estate,

Kudalwadi, Chikali,

Pune – 412 114, and also at Gat No.59,

Dehu Alandi Road, Jadhavwadi,

... APPLICANT/

Chikali, Pune

ORIGINAL DEFENDANT

VERSUS

Dinesh Sampatraj Mehta, son of

Sampatraj G. Mehta,

Age : 53 years, Occupation – Business,

carrying on Business, under the

proprietary firm name and style

of “Dinesh Steel (India)”

at Shop No.OA, Bansi Bhavan, 3^rd Lane

... RESPONDENT/

Khetwadi, Mumbai – 400 004

ORIGINAL PLAINTIFF

.......

Mr. Pawan Patil i/by Mr.Vijay Kandpile, Advocate for the appellant.

Mrs.Sneha Bhange, Advocate for the respondent.

.......

CORAM

: SANDEEP K. SHINDE, J.

RESERVED ON : 05^th APRIL, 2022.

PRONOUNCED ON: 06^th JUNE, 2022.

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P.

C. :

1.

This appeal under Order XLIII (1) (d) of the Code of Civil

Procedure, 1908 (“CPC” for short), questions the legality and

correctness of the order dated 16^th September, 2021, by which the

learned Judge, City Civil Court, Mumbai in exercise of jurisdiction

under Order IX Rule 13 of the CPC, declined to set aside the exparte

decree dated 11^th June, 2018, passed in Short Cause Suit No.925 of

2015, against the appellant-defendant.

2.

Question, that falls for consideration is whether suit

summons, issued by the City Civil Court, Mumbai, sought to be

served through speed post, on the defendant who was residing outside

the jurisdiction of City Civil Court, was valid and proper service.

3.

Facts : Plaintiff-respondent instituted Short Cause Suit

No.925 of 2015 in March, 2015, in the City Civil Court at Bombay, to

seek decree in the sum of Rs.59,76,058.83 towards consideration for

goods sold by him to the defendant.

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4.

On 15^th April, 2015, Board Department of City Civil

Court, Bombay sent two speed post letters packets containing

duplicate writ of summons, along with true copy of plaint to the

appellant-defendant who was residing at Pune. On 6^th May, 2015,

Board Department received back speed post letters packets with a

remarks, “owner is not accepting hence returned”. Whereupon Mr.

J.R. Mhatre, working in the Board Department of City Civil Court,

Bombay filed affidavit of service and tendered two speed post letters

packets at Exh.A-1 and A-2. On 10^th August, 2015, learned Judge,

upon perusing the affidavit of Mr. Mhatre and noticing that

defendant was absent when the suit was called on for hearing, set

down the suit on 13^th October, 2015 for hearing exparte, against the

defendant. Thereafter, on 11^th June, 2018, the suit was decreed

exparte against the appellant-defendant and the decree was drawn.

Whereafter, plaintiff instituted the execution proceedings vide

Application No.150 of 2018 and served the same on the defendant on

22^nd July, 2019.

5.

Noticing the exparte decree, appellant-defendant applied

for certified copy of the judgment and decree on 18^th December, 2019

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and thereafter moved an application under Order IX Rule 13, on 24^th

February, 2020, for setting aside the decree on the ground that he

was not ‘duly served’ with the suit summons.

6.

Learned Trial Court vide order dated 16^th September,

2021, for more than one reason held that service of suit summons by

speed post was good service and thus, declined to set aside the

exparte decree. Hence, this appeal.

7.

Heard the learned counsel for the parties. Perused the

record and proceedings.

8.

The scheme of Code of Civil Procedure containing order V

Rule 9 primarily contemplates, personal service of summons on the

defendant. Rule 9 which has been inserted in the Code, w.e.f. 01^st

July, 2002, reads as