Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-1284-2019 in SU-652-2015
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1284 OF 2019
(CNR No.MHCC01-003320-2019)
IN
SUIT NO.652 OF 2015.
(CNR No.MHCC01-010433-2014)
Pushpalata Gopal Worlikar & Ors. }...PLAINTIFFS.
Versus
Ranglal Ambalal Jain }...DEFENDANT.
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Smt.Archana Shirsekar, learned advocate for the plaintiffs.
Shri.S.S.Redekar, learned advocate for the defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 25/03/2022)
1. By filing this Notice of Motion, defendant has claimed the
following reliefs;
a) This Hon’ble Court be pleased to condone the delay of
one year and 13 days in taking out present Notice of Motion.
b) This Hon’ble Court be pleased to set aside the
ex-parte
judgment and decree dtd.23rd and 24th January 2018 passed by
this Hon’ble Court in above suit and defendant be permitted to
file this written statement in above matter.
2. Read the affidavit filed in support of Notice of Motion and
affidavit in reply filed by the plaintiffs. Heard learned Shri.S.S.Redekar
advocate for the defendant and learned Smt.Archana Shirsekar
advocate for the plaintiffs. Perused the entire record.
3. Learned advocate for the defendant argued that writ of
summons was not served properly on the defendant as plaintiffs have
filed false suit by mentioning that suit shop No.2 is situated at House
No.460 though, it is situated at House No.495 of City Survey No.525.
He argued that plaintiffs have obtained Judgment and Decree in respect
of shop No.1 from Small Causes Court on 30/08/1999 by giving wrong
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description of the shop hence, said Judgment and Decree is not
maintainable in law because plaintiffs have obtained fraudulent Decree
in respect of shop No.1 which is shown as House No.460 instead of
House No.525. He argued that plaintiffs have executed the Decree
passed by Small Causes Court in respect of shop No.1 only and not in
respect of shop No.2. He argued that plaintiffs had filed Writ Petition
before Hon’ble High Court which has been dismissed. He argued that
defendant used to reside at his native place in Rajasthan and defendant
used to come for doing business from shop No.2 as per availability,
bailiff never visited shop No.2 for service of writ of summons and
defendant never refused any service of writ of summons either through
bailiff or by post. He argued that service of writ of summons was tried
to be done on House No.460 deliberately even though, shop No.2 is
situated on House No.495 and hence, there is no service of writ of
summons on the correct address of the defendant. He argued that
plaintiffs have obtained
ex-parte decree without serving the defendant
properly with writ of summons and hence, said
ex-parte Judgment and
Decree dtd.23/24 January 2018 is liable to be set aside. He argued that
defendant came to know about said
ex-parte decree when defendant
received warrant of possession of shop No.2 on 16/01/2019 hence, the
delay caused in filing Notice of Motion being not intentional, it deserves
to be condoned. He argued that it is necessary to give opportunity to
the defendant to contest the suit on merits hence, Notice of Motion shall
be allowed by imposing appropriate costs. In support of his argument,
learned advocate for the defendant has placed reliance on the law laid
down by Hon’ble Apex Court in a case of
Robin Thapa Vs. Rohit Dora
reported in
(2019)7 Supreme Court Cases 359 wherein, Hon’ble Apex
Court has held that
Ordinarily, a litigation is based on adjudication on
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merits of the contentions of the parties. Litigation should not be
terminated by default, either of the plaintiff or the defendant. The
cause of justice does require that as far as possible, adjudication be
done on merits.
4. As against this, learned advocate for the plaintiffs argued
that defendant had refused to accept service of writ of summons hence,
bailiff had effected service by way of pasting. She argued that while
allowing the Notice of Motion of the plaintiffs, this court had directed
the plaintiffs to intimate the defendant about said order by RPAD and
plaintiffs had accordingly sent notice by RPAD which has been returned
back by the Postal Department with endorsement as refused. She
argued defendant has raised false contentions in the affidavit filed in
support of this Notice of Motion in respect of number & location of the
suit shop, defendant has not shown sufficient cause to condone the
delay and to set aside the
ex-parte decree passed against him due to
which, Notice of Motion is liable to be dismissed with costs.
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5. Defendant has placed on record copy of letter given by
MCGM to the plaintiff. Contents of said letter suggest that MCGM had
called upon the plaintiff to produce Inspection Report from the Office of
Collector Mumbai in support of her claim that persons by names Smt.
Gavas and six others are residing on C.S.No.460 and not on C.S.No.525.
Date of issuance of said letter is not mentioned on it. Defendant has
also produced copy of Oral Judgment dtd.10/10/2011 passed by
Hon’ble High Court in Writ Petition No.734 of 2003. Admittedly, said
Writ Petition is dismissed however, dismissal of said Writ Petition is not
sufficient for accepting the prayer made by the defendant in this Notice
of Motion. Defendant has contended that he was not properly served
with writ of summons. The only point for consideration is whether
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contention of the defendant is acceptable that he was not properly
served with the writ of summons?
6. This Notice of Motion is taken out for setting aside the
exparte decree passed in Suit No.652 of 2015. I have gone through the
Record and Proceeding of said suit. Original writ of summons alongwith
bailiff report dtd.17/10/2015 are available with said Record and
Proceeding. Bailiff has mentioned in his report that defendant Ranglal
Jain was present on the given address and defendant had refused to
accept the service hence, duplicate copy of writ of summons was affixed
on the outer door of the place of business of the defendant on his given
address. Defendant has contended that shop No.1 and shop No.2 are
separate premises. Contention of plaintiffs is that shop No.1 is divided
in two parts. Material available on record in the form of bailiff report
shows that defendant was very much present on the given address and
he had refused to accept the service of writ of summons because of
which, bailiff had effected service by way of pasting. Contention of the
defendant is that bailiff never visited shop No.2 and defendant never
refused service of summons. Defendant has not filed affidavit of his own
in support of the Notice of Motion. In the affidavit filed in support of
the Notice of Motion, CA of defendant has nowhere stated that bailiff
report is false or manipulated.
7. Bailiff report shows that service of writ of summons was
effected by way of pasting at shop No.1, House No.460, Ramchandra
Poshu Chawl, Bhagat Galli, Worli Koliwada, Mumbai-400030.
Defendant has produced copy of Oral Judgment dtd.10/10/2011 passed
by Hon’ble High Court in Writ Petition No.734 of 2003. Same address of
defendant is mentioned in the title clause of said Oral Judgment. It does
not appear that defendant has denied service of said Writ Petition on
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him on the same address.
8. Again, perusal of the Record and Proceeding of the suit
shows that besides effecting service through bailiff, plaintiffs had sent
writ of summons to the defendant by RPAD also. Returned Postal
envelope containing writ of summons is available with R & P of the suit
which shows that Postal Department has returned back the envelope
containing writ of summons with endorsement as “Refused”.
Apparently, material available on record of suit shows that defendant
had refused to accept service of writ of summons through bailiff and
through Post also. It is not the contention of the defendant that he was
not available in Mumbai when bailiff visited the given address for
service of writ of summons on 17/10/2015. It is also not the contention
of the defendant that he was not in Mumbai on 24/10/2016 when writ
of summons was sent to him by RPAD. In a case of
C.C.Alavi Haji Vs.
Palapetty Muhammed reported in
AIR 2007 SC (Supp) 1705, Hon'ble
Apex Court has laid down the law that when a notice is sent by
registered post and is returned with a postal endorsement “refused” or
“not available in the house” or “house locked” or “shop closed” or
“addressee not in station”, due service has to be presumed. Thus in view
of the law laid down by Hon'ble Apex Court, this court is of the opinion
that contention of the defendant is not acceptable that he was not
properly served with writ of summons.
9. There is yet another aspect which needs consideration.
Perusal of the Record and Proceedings of the suit shows that Notice of
Motion No.3768 of 2015 of the plaintiffs was allowed as per order
dtd.11/07/2017 in terms of its prayer clause-b and plaintiffs were
directed to intimate about the said order to the defendant by registered
Post. Plaintiffs have placed on record of the suit the returned Postal
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envelope which shows that defendant had refused to receive the
intimation sent to him by RPAD. Thus, the material available on record
of the suit shows that defendant had got knowledge of the suit three
times but on all three occasions, he had refused to accept the service
due to which, defendant now cannot be allowed to say that he was not
properly served with writ of summons.
10. Learned advocate for defendant submitted that opportunity
to contest the suit on merits is necessary to be given to the defendant by
setting aside the
ex-parte decree and appropriate costs may be imposed
on the defendant. Relief claimed in this Notice of Motion by the
defendant is covered by first part of Rule 13 of Order IX of Civil
Procedure Code as defendant has come with a case that summons was
not duly served upon him. Material available on record of the suit
shows that defendant had refused to receive the writ of summons sent
through bailiff hence, service was effected by way of pasting after
which, writ of summons was sent by RPAD but defendant had refused to
accept it also. Not only it, defendant had refused to receive the
intimation sent to him by the plaintiffs by RPAD in respect of the order
passed by the Court in Notice of Motion. Thus the defendant who had
refused to accept summons and intimation as above, is not entitled for
the relief of setting aside
ex-parte and hence, an order.
O R D E R
Notice of Motion No.1284 of 2019 is dismissed.
Date : 25/03/2022. (P.P.RAJVAIDYA)
Dictated on : 25 /03/2022. Judge, C.R.No.62,
Checked on : 25/03/2022. City Civil Court,
Signed on : 25/03/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
31/03/2022 at 2.45 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 25/03/2022
Order signed by P.O. on 25/03/2022
Order uploaded on 31/03/2022
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