Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1314/18 (Suit 9750/77)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1314 OF 2018
(CNR No.MHCC01-004190-2018)
IN
S.C. SUIT NO.9750 OF 1977
(High Court S.C Suit No.246/1977)
1. Smt. Nalini Ramakant Jadhav (since deceased)
2. Mrs. Vibhavari Mohan Shinde
3. Mrs. Sunita Ashok Shinde
4. Mrs. Anjali Ashok Shinde ..Plaintiffs
V/s.
1. Manorama w/o. Madhavrao Jagtap
(since deceased)
2. Uday Madhavrao Jagtap.
3. Ujwala Madhavrao Jagtap
4. Mangala Madhavrao Jagtap ..Defendants
AND
1. Mrs. Anupriya Mohanrao Nimbalkar
2. Smt. Ujwala Uday Kale …Applicants.
V/s.
1. Mrs. Vibhavari Mohan Shinde
2. Mrs. Sunita Ashok Shinde
3. Mrs. Anjali Ashok Shinde
4. Uday Madhavrao Jagtap. …Respondents.
Appearance :-
Adv. Mr. D.A. Sakhalkar for plaintiffs.
Adv. Mr. Tambe for defendant no.1.
Adv. Mr. Shaikh for defendant no.2
Adv. Mr. Tamhane for defendants no.3 and 4.
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CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 21.2.2020.
ORAL ORDER
1. This Notice of Motion is taken out by the applicants for
setting aside ex-parte decree passed in Suit No.9750/1977 on
8.10.2014 and the suit be ordered to be proceeded against the
applicants according to law. It is also submitted by the applicants
that, during pendency of the Motion, execution proceedings bearing
No.55 of 2015 may be stayed. The notice of motion is supported
by an affidavit of Mrs. Anupriya Nimbalkar. I have perused the
same. The plaintiffs no.2 to 4 and defendant no.1, who are
respondents in the proceedings, have opposed the Motion by
submitting affidavit in reply sworn by Mrs. Vibhavari Shinde
(plaintiff no.2) and documents filed on record, vide Exhs.A and B
respectively and other documents as per list of documents
submitted on record. The applicants have submitted rejoinder to
the reply by submitting affidavit of Mrs. Anupriya Nimbalkar dated
7.3.2019.
2. I have heard Ld Counsels for both sides and taken into
consideration oral submissions made by them, as well as perused
various authorities and citations submitted and relied upon in
support of their arguments.
3. Ld. Counsel for the applicants submitted that, applicant
Mrs. Anupriya Nimbalkar came to know about the execution
proceedings through one of her acquaintances Mr. Devesh Gawade
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that a court bailiff Mr. Ghatge from City Civil Court had come to
Jagtap Bungalow, Duttapada, Borivali (E), Mumbai-66 to execute
the decree in respect of the property which belonged to her father
late Mr. Madhavrao Jagtap which was inherited by her mother –
applicant no.2 and respondent no.4 Uday Jagtap. It is submitted
on behalf of the applicants that, the suit property is in use and
occupation of respondent no.4 Uday Jagtap. The applicant no.1
Anupriya had got married in the year 1971 and had stayed in her
matrimonial home at Goa. Her sister applicant no.2 had got
married in the year 1978 and settled in her matrimonial home at
Kannamwar Nagar, Vikroli, Mumbai. As the applicant Anupriya
Nimbalkar had got married against the wishes of her mother, her
relations with her mother were strained. Similarly, the applicant
no.2 also got married against the wishes of her mother and
therefore, the mother was living with their brother – respondent
no.4 Uday Jagtap and her relations with her mother were also
strained.
4. It is submitted on behalf of the applicants that, after
their marriage, the applicant no.1 Anupriya Nimbalkar and
applicant no.2 rarely visited their mother till she expired in the
year 1984. Under the above circumstances, the sisters had not
insisted for partition and separate possession of their shares in the
suit property. On the above factual background, when the applicant
no.1 Anupriya came to know about the visit of court bailiff in the
suit property, she came to Mumbai from Goa on 23.3.2018 and
met respondent no.4 Uday Jagtap. But he had given evasive
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answers to the queries put to him regarding the suit property.
Thereafter, when she got introduced to advocate Mrs. Megha
Raorane she came to know that the suit has been decreed exparte
and execution proceedings has been taken out. It is the case of the
applicants that, they were never served with the writ of summons
before the suit proceeded exparte against them. The applicant
no.1 was staying at Goa after her marriage from the year 1971 and
therefore, she could not have been served on the address given in
the suit. Therefore, it is contended that the the execution
proceedings taken out by the plaintiffs is nothing but a fraud
played on the applicants. It is alleged that, the decree in the suit
has been obtained by respondent no.4 Uday Jagtap in collusion
with the plaintiffs to deprive the applicants from their share in the
suit property. Under the above circumstances, it is contended that,
the exparte decree passed in the suit is liable to be set aside and
the notice of motion deserves to be allowed.
5. In support of above submissions, Ld. Counsel for the
applicants has placed reliance on the following authorities :-
1. Shub Karan Bubna @ Shub Karan Prasad Bubna V/s.
Sita Saran Bubna & Others (2009(9) SCC 689).
2. A.V. Papayya Sastry & Others V/s. Government of
A.P. & Others (2007(4) SCC 221)
6. I have gone through the above authorities and find
that, the first authority is in respect of continuation of suit
proceedings and in a suit for partition, when a preliminary decree
is passed and final decree proceeding follows. It is duty of the
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court to initiate final decree proceedings and that does not depend
upon an application to be filed for final decree proceedings to be
initiated unless there is local amendment in the law. Therefore, the
question of limitation would not arise. In the said case, it was
contended that, the applicant firm which had initiated a
proceedings, had to be filed within three years as per residuary
Article 137 of the Limitation Act 1963 from the date of passing of
preliminary decree. If any application is filed beyond three years it
would be barred by limitation. However, the above contention
was negated by the Hon’ble Supreme Court and it was held that,
the Code of Civil Procedure does not contemplate filing of
application for final decree. Therefore, the objection on the point
of limitation cannot be entertained.
7. In the second authority, the Hon’ble Apex Court has
held that, if any judgment or order is obtained by playing fraud,
the proceedings is vitiated and such judgment and decree cannot
be held to be legal, valid and in consonance with the law. It is
non-existent and non-est and cannot be allowed to stand.
8. Relying on the above authorities, Ld. Counsel for the
applicants submitted that the exparte decree obtained in the
present case is nothing but a decree obtained by playing fraud and
therefore, it is liable to be set aside.
9. Per contra, Ld Counsel for the plaintiffs has strongly
opposed the Motion and relied on the affidavit in reply submitted
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by the plaintiff no.2 Vibhavari Shinde.
10. Ld. Counsel for the plaintiffs submitted that, the notice
of motion taken out by the applicants is itself not maintainable in
law. It is liable to be dismissed on the ground that the applicants
have suppressed material facts from the court. It is contended
that, in fact, the decree passed in the suit dated 8.10.2014 is not
an exparte decree. There is no prayer for condonation of delay in
taking out the Motion for setting aside the said decree, though
there has been delay of about 3 and half years for approaching the
court for taking out the Motion in question.
11. On merit, it is argued that, the decree sought to be
executed in the execution proceedings dated 8.10.2014 is in fact
not exparte decree. Defendants no.1 to 3 had appeared in the suit
proceedings by engaging their Counsel and even defendant no.2
had submitted Written Statement on behalf of defendants no.1 to 3
and himself on 8.7.1977. However, the defendants no.2 and 3 had
again filed WS on 15.4.1993. Defendant no.2 along with defendant
no.3 had engaged an advocate Mr.Atul Tungare to appear on their
behalf before the court. There has been affidavit of service by Mr.
Ramakant Sawant, Bailiff of the Court dated 5.10.1982, stating that
four sealed packets were sent by Regd.AD containing duplicate writ
of summons along with copy of plaint at the address of the
defendants. Thus, the defendants in the suit were served as per
report of bailiff. Thus, it was argued that, the applicants had
knowledge about the pendency of the suit and proceedings but
they had deliberately chose to remain silent/ remain absent before
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the court. As defendants no.2 and 4 could not be served by
formal mode. Therefore, they were served by substituted service by
way of publication in the newspaper. Thereafter, there was
amendment in the plaint. Issues were framed in the suit on
10.7.2014 which were re-cast by framing additional issues on
30.7.2014 respectively. On 22.8.2014, the plaintiffs had closed
their evidence and matter was adjourned for defendants’ evidence
but the defendants have failed to appear and tender any evidence.
The matter was closed for arguments. On 23.9.2014, written
arguments came to be filed on behalf of the plaintiffs and the suit
was partly decreed on 8.10.2014.
12. Under the above circumstances, Ld. Counsel for the
plaintiffs argued that, the decree sought to be executed is not an
exparte decree and same cannot be set aside by taking out the
Motion. Regarding proper service on the defendants in the suit,
Ld. Counsel argued that, as per record, when the marriage of
Anupriya Nimbalkar had taken place in the year 1971, her husband
Mr. Mohanrao Nimbalkar was residing at Chandralok, Aare Road,
Goregaon(W), Mumbai 62 and in this regard, reliance is placed on
the marriage certificate of Anupriya Nimbalkar to show her
address. The applicants have suppressed the above information
about the husband of Anupriya Nimbalkar and his address, who
was in the employment of Godrej Industries at Vikroli, Mumbai
and was staying in Vikroli till around the year 1990. The affidavit
filed by the Bailiff Mr. Ramakant Sawant clearly shows that,
Anupriya Nimbalkar had accepted the service of writ of summons
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at her address at Vikroli, Mumbai. Under the above circumstances,
it was submitted that, the applicants have made false and
misleading statement on oath before the court and the applicant
no.1 is liable to be prosecuted u/s. 440 of Cr.P.C.
13. Ld. Counsel for the plaintiff further argued that,
present notice of motion under Order 9 Rule 13 of CPC is not
maintainable as the applicants have failed to show sufficient cause
for their non-appearance before the court inspite of due service of
summons. The applicants had appeared before the court and
submitted WS also but thereafter remained absent on their own
risk. Therefore, now, the applicants cannot contend that, the
decree in the suit has been passed exparte and that it is liable to
be set aside. Hence, he argued that the notice of motion is liable
to be dismissed with compensatory costs.
14. Ld. Counsel for the plaintiffs have also relied upon
following authority in support of his above submissions :-
Parimal V/s. Veena (AIR 2011 Supreme Court 1150).
15. I have gone through the above authority and find that,
in this case the Hon’ble Apex Court has considered the provisions
of Order 9 Rule 13 of CPC for setting aside the exparte decree. It
is held that a decree can be set aside which is passed exparte on
showing sufficient cause which was beyond the control of the
defendants and they could not be blamed for their absence before
the court. It is also held that, the notice served on the defendants
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by Regd.Post as well as by publication in the newspaper is proper
service.
16. I have gone through the record of the case and
carefully perused the grounds stated in the supporting affidavit
submitted along with the Motion. I have also considered the
grounds stated in the affidavit in reply submitted to the Motion for
opposing the same. I have taken into consideration the oral
submissions made by Ld. Counsels for both sides and also
considered the ratio of the Hon’ble Apex Court in the authorities
submitted and relied upon by the respective parties.
17. In the present case, it appears that, though there was
service/ substituted service of summons on the defendants and they
had appeared and filed WS i.e. defendants no.1,2 and 3
respectively as per copies filed on record vide Exhs.A and B along
with affidavit in reply. It appears that, they had not contested the
suit during the trial of the case and therefore, the suit had
proceeded under Order 17 Rule 2 of CPC. Therefore, disposal of
the suit under Order 17 Rule 2 of CPC has an effect as if the suit
is decided exparte under Order 9 Rule 6 of the CPC. Therefore, I
am of the view that the provisions of Order 9 Rule 13 of CPC are
applicable. Hence, I hold that, present notice of motion taken out
by the applicants is maintainable in law.
18. So far as grounds stated in the supporting affidavit of
the Motion are concerned, the applicants are required to satisfy the
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court that either they were not duly served with the suit summons
or that they were served but they were prevented from appearing
before the court due to sufficient cause. In the present case, I find
that, there are sufficient grounds and circumstances to show that,
the applicants were prevented from appearing before the court/
participate in the proceedings at the stage of the trial and
therefore, the decree passed in the suit cannot be said to be the
decision on merit but will have to be treated as an exparte decree.
It is true that, original suit is an old matter and there has been
delay in taking out the Motion for setting aside the exparte decree
but to meet the ends of justice, it would be just and proper to
give an opportunity to the applicants to contest the suit and same
is decided on merit. Hence, I am of the opinion that, if the Motion
is allowed subject to reasonable costs, it will serve the ends of
justice, and will compensate the aspect of delay so far as plaintiffs
are concerned. Hence, I proceed to pass following order :-
ORDER
1. Notice of Motion No.1314 of 2018 is hereby allowed and
made absolute subject to applicants paying costs of Rs.
5,000/- to the plaintiffs (collectively) / depositing in the
court within a period of four weeks from today.
2. If the above directions are complied with by the
applicants within time, the ex-parte decree passed in Suit
No.9750/1977 (High Court S.C. Suit No.246/1977) dated
08.10.2014 shall stands set aside and the Suit shall be
restored for trial and disposal according to law.
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3. After the Suit is restored, notice shall be issued to the
parties for appearing before the court.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 21.2.2020 Gr. Bombay (C.R.03)
Dictated on : 21.2.2020.
Transcribed on : 24.2.2020.
Draft given to HHJ on 24.2.2020.
Signed by HHJ on : 25.2.2020.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/
ORDER.
UPLOADED ON :25.2.2020
TIME: 2.50 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 21.2.2020
Judgment/ order signed by P.O on 25.2.2020
Judgment/ order uploaded on 25.2.2020
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