Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.807 OF 2019
IN
S.C. SUIT NO.929 OF 2018
M/s. B.S. Mehta … Plaintiffs
V/s.
Lino Pandey … Defendant
Appearances :
Ld. Adv. Poonam Sharma for plaintiff.
Ld. Adv. Kamath for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 27th June, 2019
ORDER
The defendant has taken out this notice of motion for
setting aside exparte order against him.
2. It is argued on behalf of the defendant that on 04.06.2018
this Court has passed exparte order against defendant observing that
despite service he has not made his appearance. In fact he was not
aware about present suit as there was no service of suit summons on the
defendant. The postal envelope returned with postal remarks as
unclaimed. However, there is no clear endorsement on postal envelope
that intimation was given to the defendant and even then he has not
claimed the summons and as such it is returned unclaimed. In the
month of December 2018, for first time defendant came to know about
this matter. Accordingly he has taken out this notice of motion for
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setting aside exparte order.
3. Ld. Counsel for plaintiff has resisted this application. It is
argued that suit summons was sent on last known address of defendant.
The postal envelope returned with the endorsement unclaimed. It
means despite intimation defendant has not claimed the notice and
therefore, it is good service. Moreover, the suit summons was correctly
addressed and properly stamped. Therefore, as per General Clauses Act
it is to be presumed that the notice is duly served on the defendant. As
such there is proper service of suit summons. Despite knowledge
defendant not appeared and therefore, there is no need to set aside ex
parte order.
4. I have gone through the postal envelope. There is
endorsement from postal authority as “unclaimed”. There is no clear
endorsement whether intimation was delivered at the address of
defendant about the suit summons. Therefore, the position is not clear
as to whether envelope is returned unclaimed despite giving intimation
to the defendant.
5. On this aspect the Ld. Counsel for defendant has relied on
one citation of our Hon'ble High Court report in 2018 (3) ALL MR page
718. As per facts of the case under citation the postal envelope
containing suit summons was return with remarks “intimation posted
unclaimed”. It is observed that the presumption under section 27 of the
General Clauses Act can be invoked after parties adducing evidence.
Said presumption is reputable. Therefore, at the stage of service of
summons Court cannot invoke said presumption holding that the
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service effected is a good service. Therefore, summons issued by
Register Post AD returned with the remarks that intimation posted and
not claimed or unclaimed, the same cannot be accepted as good service.
6. The facts of the case under citation are quite similar to the
facts in case on hand. Here, also the envelope containing notice is
returned with the postal remarks as unclaimed. Therefore, considering
above ratio it cannot be accepted as a good service.
7. In addition to it I may say that as far as possible matter
must be decided on merit by giving full and fair opportunity to the
parties to put their case. As per principle of natural justice parties
should not be condemned unheard. Similarly, Court should not be too
technical to deprive the parties for substantial justice.
8. Therefore, considering the facts on hand the ratio in
citation (supra) is applicable to case on hand. Therefore I am of the
opinion that the exparte order can be set aside and opportunity can be
given to the defendant to put his case. At the most some cost can be
imposed because of delay. With this I proceed to pass the order.
ORDER
1. NM No.807/19 in SU No.929/18 is hereby allowed.
2. Exparte order dated 04.06.2018 passed against defendant is
hereby set aside on payment of cost of Rs.2000/ to be paid
within four weeks by defendant to plaintiff or to deposit it in the
Court within aforesaid time.
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3. On compliance of cost order defendant is permitted to place his
written statement on record.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 27/06/2019 City Civil Court, Gr. Mumbai
Dictated on : 27.06.2019
Transcribed on : 27.06.2019
Signed on : 29.06.2019
sbk/
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
29.06.2019 04.00 p.m. Sanjay B. Kaskar
(StopGap Stenographer)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
27.06.2019.
Judgement/order signed by P.O on 29.06.2019.
Judgement/order uploaded on 29.06.2019.
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