Tuesday, 10 March 2020

Whether appellate court can restore possession of suit premises after setting aside exparte decree?

 Lastly, Mr. Lad pointed out that while setting aside the ex parte decree the appellate Court had directed the Petitioner to restore possession of the suit premises to the Respondent on or before 30th June 2001. In my view, such a direction could not have been issued by the appellate Court. After the ex parte decree was set aside, the proper remedy for the Petitioner is to make an application for restitution under Section 144 of the Code. The order for restoration of possession, which is in the nature of restitution, could not have been passed without an application under Section 144 of the Code and that too without an opportunity to the Petitioner to oppose.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3228 of 2001

Decided On: 07.06.2011

 Devayani Yeshwant Shivkar  Vs.  Bhaskar Chavan

Hon'ble Judges/Coram:
D.G. Karnik, J.

Citation: 2011(4) MhLJ 868



1. This petition under Article 227 of the Constitution of India is directed against the judgment and order dated 24th April 2001 passed by the Appellate Bench of the Small Causes Court, Mumbai in Appeal No. 671 of 2000 setting aside the judgment and order of the learned Single Judge and thereby allowing Misc. Notice No. 440 of 2000 taken out by the Respondent for setting aside an ex parte decree.

2. The original Petitioner who is now represented by his legal heirs is the landlord. The original Respondent who is now represented by his legal heirs was the tenant of the Petitioner in respect of a room bearing No. 10 at 106/D, Hirabai Govind Shivkar Niwas, Shriram Galli, Worli Koliwada, Mumbai-400025, (for short "the suit premises"). The Petitioner filed a suit bearing RAE & R Suit No. 729/1667 of 1995 against the Respondent for possession. The suit summons was served on the Respondent not personally but by substituted service under Order 5 Rule 20 of the Code of Civil Procedure (for short "the Code"). Since the Respondent did not appear, the Court passed an ex parte decree on 28th October 1999 but with a direction that it shall not be executed until the notice of execution petition was served on the Respondent. Accordingly the Petitioner took out a notice for execution which also appears to have been served on the Respondent by substituted service under Order 5 Rule 20 of the Code. The Respondent did not appear and therefore the execution proceeding was proceeded with ex parte and the Petitioner recovered possession of the suit premises from the Respondent on 26th June 2000. Immediately thereafter on 29th June 2000, the Respondent applied for setting aside of the ex parte decree by making an application under Order 9 Rule 13 of the Code. By an order dated 25th July 2000, the application was dismissed by the trial Court. However, the Civil Appeal No. 671 of 2000 was allowed by the appellate Bench of the Small Causes Court by its order dated 24th April 2001. That order is impugned in this petition.

3. Learned Counsel for the Respondent raised a preliminary objection to the maintainability of the writ petition on the ground that the Petitioner has an alternate adequate and efficacious remedy by way of revision under Section 115 of the Code and, therefore, the petition should not be entertained. The petition has been filed in the year 2000 and has been admitted after hearing the Respondent by an order dated 16th August 2001. At the stage of admission, the Respondent did not raise the objection about the availability of alternate remedy and/or about maintainability of the petition. Since the petition has been admitted 10 years ago without any objection by the Respondent about the availability of alternative remedy, the Respondent cannot be allowed to raise the objection at this stage.

4. According to the Respondent tenant, the suit summons was never served upon him and he was not aware of the ex parte decree. Even the notice of execution was also not served upon him and he was also not aware of the execution proceeding. Only after he was dispossessed on 26th June 2000 he came to know about the ex parte decree and immediately thereafter applied for setting aside of the ex parte decree on 29th June 2000. In the application which has been affirmed on oath, the Respondent has stated about the non-service of the suit summons. He has further stated that when his advocate Mr. P.K. Shetty took search of the suit proceedings after the execution it was revealed that the suit summons was shown to have been served on the Respondent by pasting on the outer door of the suit premises as well as by registered post A.D. The search further revealed that the suit summons sent by registered post A.D. was returned back with the endorsement "refused". He has affirmed on oath that the summons was not pasted on the outer door by the court bailiff though the bailiff report says of the summons having been so pasted. In the affidavit, he further stated that the notice of execution proceedings was also not served upon him and it was shown to have been served in the same manner in which the suit summons was served.

5. Relying upon the report of the bailiff that he had pasted the suit summons on the outer door of the premises, the trial Court came to the conclusion that the summons of the suit was properly served on the Respondent and dismissed the application of the Respondent for restoration. The appellate Court, however, held that even if the bailiff's report was believed, the summons was not properly served inasmuch as the summons was not pasted at any conspicuous place in the Court-house as was required to be done under Order 5 Rule 20 of the Code and, therefore, there was no valid service. Accordingly, the appellate Court set aside the order of the trial Court and allowed the application of the Respondent for restoration of the suit.

6. Mr. Lad, learned Counsel for the Petitioner, submitted that the bailiff's report clearly showed that the bailiff had visited the suit premises on two occasions when the wife of the Respondent was present. This shows that the Respondent was aware of the suit and was avoiding to accept the summons and therefore the Court directed substituted service, which was proper. The submission cannot be accepted. The bailiff's report does not show that the Respondent was present when the bailiff visited but only notes the presence of his wife. The bailiff's report does not show that the bailiff ever tendered the summons to the wife and the wife refused to accept it. Rule 15 of Order 5 as amended by the Code of Civil Procedure (Amendment) Act, 1976 permits service of a summons on any adult member of the family of the Defendant, whether male or female, who is residing with him. The bailiff, therefore, could have and ought to have served the summons on the wife, but the bailiff did not do so. There was no refusal by the wife to accept the service. It is only the bailiff who chose not to deliver the summons to the wife. There was no material before the Court that the Defendant was avoiding the service and/or that it was not possible to serve the summons on the Defendant in the ordinary course. The Court, therefore, ought not to have ordered service under Rule 5 Order 20 of the Code. Be that as it may, even the substituted service was not effected in accordance with law. Order 5 Rule 20 of the Code provides that when the Court is satisfied that there is reason to believe that the Defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the Defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. The substituted service by affixation in order to be valid is required to be made by affixing the summons at two places, namely (i) in some conspicuous place in the Court-house and (ii) upon some conspicuous part of the house of the Defendant in which he is last known to have resided or carried on business or personally worked for gain. In the present case, even if the bailiff's report is accepted in its entirety, it shows that the service was effected by him only by affixing the summons at the outer door of the house of the Defendant (which of course has been denied by the Respondent) and not by affixing it at any conspicuous place in the Court-house. Thus, the service under Order 5 Rule 20 of the Code was also irregular, if not invalid. So far as service by registered post A.D. is concerned, it may be noted that Order 5 Rule 20-A of the Code, which permitted service by post, has been repealed by the Code of Civil Procedure (Amendment) Act, 1976. It is true that despite such repeal, the Court is not powerless to order service by registered post in view of the provisions of Order 5 Rule 20 of the Code which permits the Court to order service in such other manner as the Court thinks fit. However, in the present case, the Court had ordered simultaneous service by affixation as well as by registered post A.D. and not by registered post only. The substituted service by affixation was not proper. The registered post envelope was also not delivered to the Respondent but has been returned back. The endorsement "not claimed" made by the postman is of no consequence as the postman was not examined despite specific denial by the Respondent.

7. After carefully re-examining the oral and documentary evidence, the appellate Court has recorded an unequivocal finding of fact that the summons was not properly served on the Respondent. In my view, the said finding of fact is a possible finding of fact and is certainly not a perverse finding. As such, it cannot be set aside by reappreciation of evidence in exercise of writ jurisdiction under Article 227 of the Constitution of India.

8. Mr. Lad then referred to the proviso to Order 9 Rule 13 of the Code and submitted that even if it is held that there was irregularity in service of summons by substituted service inasmuch as it was not pasted at the court premises, still mere irregularity in service would not be a ground for setting aside of a decree. Proviso to Order 9 Rule 13 of the Code reads thus:

Provided further that no Court shall set aside a decree passed ex parte 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.
The provision that the decree passed ex parte cannot be set aside merely on the ground of irregularity in the service is subject to a condition that the Court is satisfied that the Defendant had notice of the date of hearing and had sufficient time to enable him to appear and answer the Plaintiff's claim. Mr. Lad submitted that the fact that the bailiff had gone to the suit premises for service twice and had noted the presence of the wife of the Respondent in the house shows that the wife was aware of the suit and knowledge of the wife must be construed as the knowledge of the Respondent husband. I am unable to agree. Firstly, the bailiff had only noted the presence of the wife in the house. There is nothing on record to show that the bailiff had told the Petitioner's wife that it was a summons of the suit and that the suit was fixed before a particular Court on a particular date. At the most, by the bailiff's visit the wife could have become aware that some legal proceeding had been instituted against her husband, but that would not include the knowledge of any particular suit or the present suit. The Respondent and his wife would not necessarily know that their landlord had filed the present suit in the Small Causes Court at Mumbai. There could possibility be of any suit by any person in any Court. Merely because the bailiff had gone to his house it cannot be said that the Respondent had the knowledge of the present suit and its date of hearing. There is nothing on record to show that the Respondent had the knowledge of the present suit and the knowledge of the date fixed for hearing with sufficient time to enable him to appear and answer the plaint. Therefore, the contention that the decree cannot be set aside in view of proviso to Order 9 Rule 13 of the Code has to be rejected.

9. Lastly, Mr. Lad pointed out that while setting aside the ex parte decree the appellate Court had directed the Petitioner to restore possession of the suit premises to the Respondent on or before 30th June 2001. In my view, such a direction could not have been issued by the appellate Court. After the ex parte decree was set aside, the proper remedy for the Petitioner is to make an application for restitution under Section 144 of the Code. The order for restoration of possession, which is in the nature of restitution, could not have been passed without an application under Section 144 of the Code and that too without an opportunity to the Petitioner to oppose.

10. In the circumstances, the order of the appellate Court to the extent of restoration of possession before 30th June 2001 needs to be set aside and is hereby set aside. Accordingly, the order of the appellate Court is modified to the extent of setting aside the direction for restoration of possession before 30th June 2001. Rule is made absolute only to the extent of setting aside of the aforementioned direction.


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