Final Order 1

Order Details: Notice of Motion
Pdf Text: NM NO. 4078/19 SUIT 23/16 1
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4078 of 2019
IN
EXCECUTION APPLICATION NO.549 OF 2018
SUMMARY SUIT NO.23 OF 2016
(CNR.NO.MHCC010143532018)
Nagurao Malku Gadge …. Plaintiff
Versus
Jaya Devshi Padaya …. Defendant
And
Mumbai Municipal Corporation ...Respondent
Appearances:
Advocate Mr.Rajesh Patil for the Plaintiff
Advocate Ms.Pawar for the Defendant.
Coram : HIS HONOUR JUDGE DEEPAK L. BHAGWAT
DATE : 3RD DECEMER 2019 (C. R. NO. 28)
ORDER
1. Read the Notice of motion and reply.
2. Heard Ld. Advocates on behalf of both the parties.
3. It appears that summary suit No.23/2016 was decided and ex
parte decreed vide judgment and decree dated 07/03/2016 in favour of
the plaintiff. Thereupon, the plaintiff took out execution application
No.549/2019 to execute that decree. In course of same order of
attachment of salary of the defendant was passed. It was communicated
-- 1 of 5 --
NM NO. 4078/19 SUIT 23/16 2
to the defendant office. Thereupon, the defendant filed present notice
of motion requesting to condone the delay caused in taking out the
notice of motion, to set aside the exparte decree dated 07/03/2016.
The plaintiff resisted the notice of motion.
4. The contention of the defendant is that summons of the suit was
not served on her. Thus, without service of summons, the suit has
proceeded exparte against the defendant. Therefore, said exparte
decree is required to be set aside.
5. The Ld. advocate on behalf of the defendant argued that the
defendant was residing on the address at J 6 Kurla till 2008. She was
required to vacate the same in 2008 as per directions of the corporation.
Thereupon, the defendant shifted to her mother in law's house at Shiv
Shakti Chawl, Diva. Upon death of her daughter and husband in 2014,
her mother in law gifted the residential accommodation at Shiv Shakti
Chawl, Diva, in favour of the defendant on 24/04/2015. However, in
order to discharge the amount of the plaintiff, the defendant sold the
same accommodation at Diva on 06/05/2015. Thereafter, she started
residing at transit camp at Chembur. Ld. advocate contended that since
2015 till date the defendant has been residing at transit camp at
Chembur. She is not residing at J 6 Kurla. The copy of letter dated
02/07/2018 as issued by corporation, copy of death certificate of
defendant's daughter of 2014, show that the defendant was residing at
her mother in law's house at Shiv Shakti Nagar, Diva. Thus, the
defendant was not residing at the address mentioned in the plaint.
Therefore, according to the Ld. advocate the summons has not been
served on the defendant at the address as mentioned in the plaint.
-- 2 of 5 --
NM NO. 4078/19 SUIT 23/16 3
Therefore, she requested to allow the application and set aside the ex
parte decree.
6. On the other hand Ld.advocate on behalf of the plaintiff argued
that the plea taken by the defendant is contrary to the contents of gift
deed of 2015, as it shows that the defendant was residing at J6 Kurla.
Summons has been served through the bailiff. Therefore, he requested
to reject the notice of motion.
7. The material question is whether summons was served on the
defendant. I have gone through the affidavit of service of summons in
the suit. The same was filed before the court on 03/02/2016. The writ
of summons along with the bailiff report is annexed to the same
affidavit. The bailiff report in unequivocable terms state that the writ of
summons with the copy of plaint was served by the bailiff on the
defendant on 28/01/2016 at 9.00 a.m. The same bailiff report also
contains signature of the defendant as acknowledgement of receipt of
summons. Thus, the bailiff report clearly shows that the writ of
summons was served on the defendant on 28/01/2016 at her
residential place at J6 Kurla. It is material to note that the defendant in
notice of motion does not whisper as to whether the same
acknowledgment as appearing on the bailiff report is of her or not. In
fact, she did not specifically deny her signature on the writ of summons
with Bailiff report. It is not the contention of the defendant that the
same signature has been forged. In these circumstances, there are no
grounds to disbelieve the bailiff report
8. The defendant has taken only the ground that on the date of
service of summons that is on 28/01/2016 she was not residing at J6
-- 3 of 5 --
NM NO. 4078/19 SUIT 23/16 4
Kurla. According to her she was residing at the Transit camp at
Chembur on the date of service of summons. She contends that she was
required to vacate the accommodation of J6 Kurla in 2008. No doubt,
the copy of letter issued by corporation on 02/07/2008 speaks that the
defendant was informed that residing at said place is dangerous, if not
vacated immediately. However, whether the defendant acting upon the
said letter, immediately vacated the said premises is a question,
regarding which no material has been produced to show that in
pursuance of the same letter the defendant in 2008 itself vacated the
premises. No doubt, the copy of death certificate of her daughter Kamal
shows address of deceased Kamal at Shiv Shakti Chawl, Diva. However,
the copy of death certificate of her husband of July 2014 shows his
address as J6 Kurla. Thus addresses as mentioned in both the death
certificates are contrary to each other. Notably the gift deed executed by
the defendant's mother in law in favour of the Defendant in April 2015.
and the affidavit executed by the defendant on 30/04/2015 show the
address of the defendant as J6, Kurla and not Shiv Shakti Chawl, Diva.
9. Admittedly, the defendant sold the premises Shiv Shakti Chawl,
Diva, within 6 days of acquisition. It can be inferred that the defendant
was not residing at Shiv Shakti Chawl, Diva. Most importantly, the
charge receipt dated 16/01/2018 executed by the defendant and officer
of the corporation shows that possession of the transit camp at
Chembur, was handed over to the defendant on 16/01/2018. It is
crystal clear that the defendant came into possession of transit camp at
Chembur in 2018 and not on the date of service of summons. Therefore,
contention of the defendant that she was residing at transit camp at
Chembur on the date of service of summons is not at all reliable. The
whole theory as put forth on behalf of the defendant is not reliable and
-- 4 of 5 --
NM NO. 4078/19 SUIT 23/16 5
acceptable. Therefore, the defendant failed to make out that summons
was not served on her. Resultantly, the relief as prayed by her cannot be
granted and the notice of motion is liable to be rejected. Hence, order
as follows is passed.
ORDER
The notice of motion No.4078/2019 stands rejected.
(Deepak L. Bhagwat)
AdHoc Judge
City Civil Court, Gr. Mumbai
Date: 03.12.2019
Dictated on : 03.12.2019
Transcribed on : 09.12.2019
Signed on : 15.12.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20/12/2019 at 5.45p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.Deepak L. Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 03/12/2019
Judgment/Order signed by P.O. on 15/12/2019
Judgment/Order uploaded on 20/12/2019
-- 5 of 5 --