Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.3188 OF 2019
CNR NO.MHCCO10086772019
IN
S.C. SUIT NO.9173 OF 1992
Kanal Subhash Kandalkar ..Plaintiff
V/s
1. Albert Sequeira and ors ..Defendants
Ld. advocate Aditi Pawar for the plaintiff
Ld. advocate Mr.Thorat for the defendant No.1
Ld. advocate Mungale for defendant no.4
Ld. advocate Mr.Sarang for defendant no.5
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 16/10/2019
ORAL ORDER
1. This notice of motion is tendered by defendant No.4
interalia to set aside order dated 21/09/2017
whereby the suit was proceeded exparte against
defendant no.4 and to condone the delay in taking
out this notice of motion with further direction to the
plaintiff to serve copy of the plaint and proceedings
alongwith writ of summons to defendant no.4.
2. Heard.
3. Ld. Counsel for defendant no.4 submitted that
defendant no.4 has never been served with writ of
summons and proceedings. The defendant no.4
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received the copy of the transfer application on 20th
June, 2019 taken out by the plaintiff. Thereafter the
defendant no.4 got the knowledge of the suit. He
would submit that the Court has passed order dated
21/09/2017 to proceed exparte against defendant
no.3 and 4 relying upon the service dt. 03/09/1997.
He would submit that no prejudice would be caused
to the plaintiff, if he appears in the matter and the
matter is decided on merits.
4. The plaintiff has filed reply to the notice of motion
and submitted that suit was filed in or about
21/09/1992. The plaintiff took out draft notice of
motion for injunction and other reliefs. The plaintiff
gave notice to the defendant for ad interim
application by the letter dated 23/09/1992 through
his advocate before the Hon'ble High Court and duly
served true copies of the plaint, draft notice of
motion and affidavit in support. Defendant No.4 duly
accepted service of the advocate said letter dated
23/09/1992. The defendant no.4 did not turn up
and the matter was listed for hearing on 25/09/1992
before the Hon'ble High Court. The plaintiff further
submitted that on 15/10/1992, the plaintiff informed
the defendants that plaintiff would renew her
application in terms of Notice of Motion on
16/10/1992 before the Hon'ble High Court and the
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same was duly served on defendant no.4 and
accepted by representative of defendant no.4 by
putting his signature on it. The plaintiff would
submit that by letter dated 31/10/1992, the advocate
for the plaintiff informed the defendants that the
plaintiff would renew her application for adinterim
reliefs on 04/11/1992 and defendant no.4 duly
accepted and subscribed his signature. She would
submit that notice of motion was registered as notice
of motion no.2370 of 1992 and was served upon
defendant no.4 by the clerk attached to the office of
his then advocate M/s. Pandya Gandhi & Co. and
defendant no.4 subscribed his signature on it
acknowledging his receipt. The plaintiff submitted
that the Special Bailiff of the Sheriff of Bombay
attended the residential premises of defendant No.4
and served the writ of summons by delivering and
leaving the same with defendant no.4 and obtained
his signature on writ of summons and accordingly
the affidavit to that effect was filed. The defendant
no.4 despite the service, failed to appear and is filing
this notice of motion at the fag end of the matter
which was listed for judgment.
5. On perusal of the record it reveals that issues were
framed on 24/09/2008. The evidence thereafter was
started. The plaintiff has submitted affidavit of
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evidence and documents in the year 2009. The
roznama further indicates that cross examination of
PW1 was started on 25/01/2017. Meanwhile, it
appears from the record that on 21/09/2017, the
Court proceeded exparte against defendant no.4
relying upon the service dated 03/09/1997. The
cross examination of PW1 was completed on
09/11/2017. The evidence of DW1 was started and
same was completed on 17/07/2018. Thereafter the
matter was adjourned for arguments and the same
was completed on 20/12/2018 and the matter was
placed for judgment. The Presiding Officer was
transferred to some other Court. The plaintiff
tendered transfer application before the Hon'ble
Principal Judge, in which the notice was issued to
defendant no.4. The defendant no.4 submitted that
on service of the said notice of the transfer
application, he came to know about pendency of the
suit.
6. In rejoinder to the reply of the plaintiff, defendant
no.4 has submitted that neither the clerk of the then
advocate of the plaintiff nor the advocate of the
plaintiff served any notice to the defendant no.4. On
perusal of the affidavit in support of the notice of
motion it reveals that the same was sworn by power
of attorney of the defendant no.4. The power of
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attorney holder of the defendant no.4 in verification
submitted that the information is true to his
knowledge and belief. As to how he acquired the
knowledge of the special fact that defendant no.4
was not served is not mentioned. Even the reason for
his belief of the said fact is also not coming on the
record. Therefore, the fact that defendant no.4 was
not served cannot be considered on the basis of
affidavit of his attorney when the detail of gathering
information of special facts by his attorney are not
elaborated. Although the rejoinder affidavit was
sworn by defendant no.4 himself, he has denied the
contention of receipt of the writ of summons and
submitted that signature on letter of the advocate of
the plaintiff and writ of summons is forged signature.
7. At this juncture, the plaintiff has submitted on oath
that plaintiff served defendant no.4 vide letters dated
23/09/1992, 15/10/1992, 31/10/1992 and even
notice of motion on 12/11/1992. Except the letter
dated 15/10/1992, all the letters bears the signature
of defendant no.4. The writ of summons also shows
that defendant no.4 has been served and there is
signature on it. The affidavit to that effect is filed by
Sadashiv Sawant Special Bailiff of the Sheriff of
Bombay and a clerk in the office of M/s. Pandya
Gandhi & Co. From it, it reveals that defendant no.4
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was aware of the present suit. Mere statement of
defendant no.4 that the signature is forged would not
suffice the purpose. Had it been the case that the
plaintiff wish to proceed in the absence of the
defendants, he would not have served transfer
application to defendant no.4. From the affidavit of
the rejoinder it reveals that defendant no.4 is
presently residing at Mira Road and inspite of that he
has been served at the address mentioned in the
cause title. The address of defendant no.4
mentioned in the writ of summons is the same
address where he was served with the notice of
transfer application. Merely, the order of exparte has
been passed on 21/09/2017 would not give cause of
action to defendant no.4 for setting aside the exparte
order and for participation and hearing in the matter.
The matter was placed for judgment. The plaintiff
appears to have been served defendant no.4 on many
occasions in respect of notice of motion and also
served with writ of summons. The defendant no.4 is
coming with the case that he has not been served
which is contrary to the record. Defendant no.4 has
not made out the case for setting aside the exparte
order passed against him. Hence, this notice of
motion needs no consideration. Accordingly, it is
expedient to pass following order:
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ORDER
1. Notice of Motion No.3188/2019 is dismissed.
2. Notice of Motion is disposed of accordingly.
16/10/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 16/10/2019
Transcribed on: 02/11/2019
Signed on : 05/11/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
05/11/19 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
16/10/2019
Judgment and order signed by P.O. 05/11/2019
Judgment/order uploaded on 05/11/2019
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