Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1288 OF 2019
IN
SUIT NO. 4512 OF 2011
(H.C. SUIT NO. 2536 OF 2011)
Sulabha Vardrai Nayak and others ..Applicants
(original deft nos.4,5 & 7)
IN THE MATTER BETWEEN
1. Mr.Narendra J.Tiwari and anr ..Plaintiffs
V/s
2. Nirmala Vasudev Bhat and others ..Defendants
Ld. advocate Shri J.N.Tiwari for the plaintiffs.
Ld. advocate Shri. Akshay Sawant for applicants/defendant nos.4,5
and 7.
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 03rd December, 2020.
ORAL ORDER
1. The applicants herein are the original defendants in Suit No.4512
of 2011 and by this notice of motion they prayed for declaring the ex-parte
judgment, order and decree dated 25/07/2014 as non-est and consequently set
aside the same. They also prayed to stay the operation and effect of ex-parte
judgment and decree and restraining the plaintiffs from parting with possession
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or disposing off the suit property. They further pray for appointment of Court
Receiver.
2. The contesting applicants in the notice of motion are the original
defendants and the applicant herein i.e. applicant no.1-Sulbha is original
defendant no.4, Vasudha is original defendant no.5 and Gajanan is original
defendant no.7.
3. The suit bearing High Court No.2536 of 2011 was filed for
specific performance of the contract and finalizing the execution of Sale
deed/conveyance in respect of the property bearing Survey No.49, Hissa
No.6A, Part area 363 sq. yards and Survey No.48, Hissa No.4A, area 735 sq.
yards situated at Dahisar(East), Mumbai. (Hereinafter referred to as suit
property).
4. The applicants(original defendants) contended that they are
jointly entitled for undivided share and interest in the suit property. They did
not get a fair chance to defend the suit instituted by the plaintiffs although they
were joined as a party. The writ of summons was not duly served upon them.
They recently realised about the ex-parte Judgment dated 25/07/2014 from
other defendants. They obtained the certified copies of the roznama on
08/03/2019 and certified copy of affidavit of service on 02/03/2019. The
affidavit of service did not prove service to the applicants i.e. original defendant
nos.4,5 and 7. The affidavits of service are not in accordance with the order V
Rule 28 or order V Rule 21 r/w Rule 23 of the Code of Civil Procedure which
is applicable to the defendants who are residing beyond the jurisdiction of this
Court. The roznama of entire proceedings dated 14/06/2012 have been
recorded without verifying that the writ of summons have not been served upon
the defendants. The roznama dated 06/08/2013 was recorded that Adv. Sachin
Patil undertakes to file vakalatnama on behalf of the defendants and these
applicants have not instructed to any advocate to file vakalatnama on their
behalf. The suit was transferred to this Court on 01/11/2012 from the Hon'ble
High Court. The suit was adjourned for ex-parte order on the basis of false
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statement of the plaintiffs that all the defendants were duly served. The chamber
summons no.178 of 2013 in the proceedings was not served to the applicants.
The amended plaint was not served to the parties. After the judgment,
application was made to correct certain errors in the judgment. Even at that
stage, no notice was served upon the applicants(original defendants). On all
these grounds, the applicants prayed for setting aside the ex-parte judgment and
decree.
5. The original plaintiffs opposed the notice of motion by filing
reply and contended that this notice of motion is filed by the applicants after
about four years and nine months after the judgment dated 25/07/2014 without
filing an application for condonation of delay. On this ground itself, the notice
of motion is liable to be dismissed. The writ of summons and proceedings of
Suit no.4512 of 2011 were duly served upon the applicants/defendants. The
original plaintiffs argued that acknowledgment of applicant-Vasudha falsifies
her stand. The registration slip no.H-6631 and H-6643 lodged with the office of
the Sheriff in respect of Sulbha Vadrai Nayak and Gajanan Mohan Nayak, both
dated 21/11/2011 were not received in the office of Sheriff of Mumbai. At the
request of the advocate for the plaintiffs by letter dated 17/12/2011, 19/12/2011
and 09/01/2012 addressed to the Sheriff of Mumbai requesting for obtaining
evidence of delivery of writ of summons to Sulbha and Gajanan and
consequently the Deputy Sheriff of Mumbai vide endorsement 18/01/2012 and
10/02/2012 in respect of High Court Suit No.2536 of 2011 handed over the
copy of the letter received from Senior Superintendent of Post Mumbai City
South to the plaintiffs advocate which shows the delivery of writ of summons to
applicants-Sulbha and Gajanan. The applicants were aware about the pendency
of the suit. The copy of chamber summons no.178 of 2013 with schedule was
dispatched to applicants and others. The acknowledgement cards of defendant
nos.4,5 and 7 are sufficient to establish the service to them. The summons
under the signature of the advocate along with Dy.Sheriff's endorsed letter
was dispatched on 02/07/2013 alongwith copy of the amended suit and the
summons was also submitted before the Court under affidavit of service of
amended suit to 14 defendants. The notices were served under order XXI rule
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34 of the Civil Procedure Code alongwith summons and draft conveyance.
The original defendant no.7 i.e. applicant Gajanan has received the said
summons and notice by hand under order XXI rule 34 of the Code of Civil
Procedure. The Postal department has confirmed the delivery to Sulabha . The
material shows that the writ of summons, chamber summons, amended suit and
execution application and the letter/ notice dated 10/08/2015 from City Survey
office, Borivali were served to all applicants. The applicants have not
approached the Court within time limit and therefore prayed for dismissal of
the notice of motion.
6. The applicants are seriously disputing the service of writ of
summons. Ld. Counsel for the applicants pointed out that writ of summons was
not served and therefore they have to take recourse of order IX rule 13 of the
Code of Civil Procedure for setting aside the ex parte decree. The Ld. Counsel
for the original plaintiffs argued that the above provision has to be read in it's
entirety alongwith proviso. The proviso provides that ex-parte decree cannot be
set aside merely on irregularity of service of summons, if it is satisfied that the
defendant has noticed and has sufficient time to appear and answer the
plaintiffs. It would be proper to reproduce order IX rule 13 of the C.P.C.
“In any case in which a decree is passed exparte against a
defendant, he may apply to the Court by which the decree was passed for an
order to set it aside, and if he satisfies the Court that the summons was not duly
served, ot that he was prevented by any sufficient cause from appearing when
the suit was called on for hearing, the Court shall make an order setting aside
the decree as against him upon such terms as to costs, payment into Court or
otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Provided that where the decree is of such a nature that it cannot
be set aside as against such defendant only it may be set aside as against all or
any of the other defendants also.
Provided further that no Court shall set aside a decree passed
exparte merely on the ground that there has been an irregularity in the service of
summons, if it is satisfied that the defendant had notice of the date of hearing
and had sufficient time to appear and answer the plaintiff’s claim.
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7. No doubt if the defendant satisfy the Court that the summons
was not duly served upon him, the Court can set aside the ex-parte decree. At
the same time, the proviso create bar for setting aside such ex-parte decree
merely on the ground that there has been irregularity in service and if the Court
finds that the defendant had noticed of the date of hearing and had sufficient
time to appear and answer the plaintiff's claim. The original plaintiffs have
filed documents to support their contention of service of writ of summons to the
defendants i.e. applicants. The document at page no.25 of the notice of motion
is acknowledgment dated 21/11/2011. The applicants have filed this affidavit
alongwith the documents. The Ld. Counsel for the applicants contended that it
is merely AD card and does not show any signature to whom it was served.
Therefore, it is no service to original defendant no.5. If the acknowledgment
card is carefully examined, the name of original defendant no.5 is written and at
it’s foot the original defendant no.5 is required to put her signature but the said
portion is blank i.e. there is no signature. But at the overleaf of the
acknowledgment there is signature of some person. The address in the
acknowledgment is the same address as that of the original defendant no.5 in
title clause of this application. The said acknowledgment was filed alongwith
affidavit of the clerk of the office of Sheriff of Mumbai. It shows the service of
writ of summons to original defendant no.5. Ld. Counsel for the applicants
argued that the original plaintiffs have relied upon the response to the complaint
made to Postal Department. The letter of Postal Department shows article
under reference was delivered on 23/11/2011 and other letter also shows that
the article under reference was delivered on 24/11/2011. He would submit that
those would not establish the proof of service of writ of summons to original
defendant nos.4 and 7. There is no material that by the letters bearing
transaction no.6631 and 6643 writ of summons were served to original
defendants-Sulbha and Gajanan. At this juncture, it would be proper to refer
the affidavit of the clerk of Sheriff office Mumbai dated 19/01/2012. In para.1
of affidavit clerk of office of Sheriff of Mumbai has mentioned that writ of
summons in the suit were transmitted by registered post A.D. for serving to
defendant nos.1 to 10 and the same is reproduced as under:-
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“ I say that Sheriff office have transmitted writ of summons in the aforesaid suit
by registered A.D. for serving upon defendant nos.1 to 10 at the address
mentioned in the title of the plaint in the abovesaid matter vide H-6631 to H-
6636 and H-6641 to H-6646.”
8. The affidavit of the bailiff shows that the writ of summons were
issued by receipt no.H-6631 to H-6635 and also H-6641 to H-6645 which the
plaintiff’s advocate through his letter 09/01/2012 mentioned about the said fact.
The letter dated 09/01/2012 is filed on the record which is not disputed by the
present applicants. He has also annexed the letters issued by Department of
Post which shows that the article under reference 6643 was delivered on
23/11/2011 and article under reference 6631 was delivered on 24/11/2011. The
article 6643 and 6631 as per affidavit dated 19/01/2012 of clerk of Sheriff
office shows carried writ of summons. The letter of original plaintiff’s
advocate shows that article 6643 was pertaining to applicant-Gajanan and
article 6631 was pertaining to applicant-Sulbha. So, the argument that the
articles carrying writ of summons were not delivered does not hold good. It is
not for the Postal department to disclose the nature of the articles delivered.
The affidavit of clerk of Sheriff office is read with this document shows that the
writ of summons were sent by registered post under registration receipt no.6631
and 6643. If at all, it is considered that these applicants were not served with
writ of summons, the Ld. Counsel for the original plaintiffs has filed affidavit of
service of the chamber summons and the postal receipts and acknowledgment
which shows the service of chamber summons to the applicants Sulbha and
Vasudha and to all the applicants at their respective address. They does not
dispute that the address mentioned in the acknowledgment of the chamber
summons. Further, the plaintiffs have filed the copy of the affidavit of service
dated 04/08/2013 alongwith postal acknowledgment showing service of
amended suit to the applicants by registered post. The original plaintiffs have
filed Execution application bearing Execution application No.585 of 2014. The
document filed by the original plaintiffs establishes that the original defendant
no.7-Gajanan was served with notice u/o. XXI rule 34 of the Code of Civil
Procedure on 10/10/2014. The applicant-Vasudha was also served by registered
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post AD on 10/10/2014. There is letter of Sr. Superintendent of Post, Mumbai
South in respect of postal packet no.9313 dated 18/11/2014 intimating delivery
of packet to applicant-Sulbha. The argument of the Ld. Counsel for original
defendant nos.4,5 and 7 is contrary to the documents. The documents as a
whole establishes that the writ of summons was duly served upon these
applicants. Thereafter the defendants were served with chamber summons
bearing no.178 of 2013. The amendment was carried out and even they were
served with the amended pleadings. The defendants were aware of the
proceedings and the judgment which is apparent from the document-
Malmattapatrak filed by the applicants which they obtained on 24/04/2018.
The said document shows the name of original plaintiffs name was mutated by
virtue of document executed in pursuant of the decree dated 25/07/2014. There
is no explanation from the side of applicants in this regard. If at all it is
considered that there is irregularity in service of writ of summons but material
on record is sufficient to hold that applicants i.e. defendants had notice of the
date of hearing and had sufficient time to appear before the Court to answer the
claim of the plaintiffs in the plaint. They avoided to participate in the
proceedings and have rise from slumber after about five years.
9. It is argued on behalf of the Ld. Counsel for the original
plaintiffs that no application was filed for condonation of delay. Ld. Counsel
for the applicants resisted the said contention is after thought. Even otherwise,
there is no grounds made out for condonation of delay in the application or the
reply of applicants. If at all the original plaintiffs have not taken objection as
regard the delay, the applicants as per article 123 of the Limitation Act ought to
have approached this Court within 30 days of the knowledge of ex-parte
judgment and decree and if they failed to approach the Court within the
prescribed period of limitation they are required to explain the delay. The
applicants claimed by this notice of motion that they had no occassion or
knowledge of the suit and the ex-parte decree. But their stand falsifies from the
document of Malmattapatrak filed by them which shows the mutation of the
names of the original plaintiffs in the Revenue record and decree dated
25/07/2014. Even the documents show service of writ of summons and other
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proceedings to the applicants. Hence this notice of motion does not survive on
the ground of delay. The applicants have not given any reason for gross delay.
The applicants have not established that they were prevented by sufficient cause
from appearing in the suit. Thus, in view of the above discussion, this notice of
motion does not survive and hence it is expedient to pass following order:-
ORDER
1. N/M No.1288/19 stands rejected subject to cost of Rs.5,000/-to be paid
to the original plaintiffs within a period of one month.
2. R & P be transmitted to the record room.
(M.SALMAN AZMI)
Judge,
Date: 03.12.2020 City Civil Court, Gr.Bombay
Dictated on : 03/12/2020
Typed on : 23/12/2020
Signed on : 28/12/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/01/2021 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/order 03/12/2020
Judgment and order signed by P.O. 28/12/2020
Judgment/order uploaded on 04/01/2020
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