1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3905 OF 2009 (Diwakar Maniram Sakharkar vs. Smt. Sushiladevi S. Goenka & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 05, 2010. Heard Shri Patil, learned counsel for the petitioner – judgment debtor and Shri Deshpande, learned counsel for the respondents – original plaintiffs/ decree holders. The petitioner contends that only after service of notice of execution, the petitioner learnt about the ex- parte decree of eviction passed against him. He applied for setting it aside on the ground that the service of suit notice was never effected on him and the service on record was not in accordance with provisions of order 5, Rule 15 of Civil Procedure Code. Shri Patil, learned counsel contends that the provisions of said Rule warrant service to be effected only at residence and here admittedly bailiff has gone to the shop. He further argues that even Bombay Amendment to Rule 15 shows such intention. Shri Deshpande, learned counsel, on the other hand, points out that both the addresses were mentioned in the plaint and the bailiff has gone to shop 2 where he met the son of the petitioner by name Rajesh. Rajesh disclosed to the bailiff that his father is out of station and will return after 8 to 15 days. He volunteered to accept the summons and accordingly summons were served upon him. The controversy had come before this Court once and while passing judgment in Writ Petition No.3993 of 2007 on 3.10.2008, this Court has noticed in para 8 that the appellate Court has lost sight of provisions of Order 5, Rule 15 of Civil Procedure Code. The matter was, therefore, remanded back to lower appellate Court. In view of that judgment, after remand the lower appellate Court has delivered impugned judgment on 03.07.2009. In view of the observations made, the appellate Court has recorded evidence. The petitioner did not adduce any evidence and the respondents – original plaintiffs have examined concerned bailiff Narendra who effected service in dispute on 25.02.2003. He also examined another bailiff Vasant who served notice of execution on 17.07.2005. The provisions of Order 5, Rule 15 (Central provisions) reveal that when the defendant is found absent from his residence at the time when the service of summons is sought to be effect on him and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on behalf of him, service can be made on any adult member of family who is 3 residing with him. This provision has been revised by Bombay Amendment which stipulates that when the defendant cannot for any reason be personally served and he has no agent empowered to accept the service of the summons on his behalf, service can be made on any adult male member of the family, who is residing with him. The report of the bailiff Narendra shows that he has effected service on son of the petitioner by name Rajesh. What transpired then is also deposed to by him and there is no cross examination about those developments. The facts on record through his evidence, therefore, show that at relevant time, the petitioner was reported to be out of station and was to return after 8 to 15 days. Son Rajesh volunteered to accept the summons by stating that he is a family member of the petitioner Diwakar, therefore, the summons was tendered to Rajesh. If this was to be refuted, it was necessary either for Diwakar or then Rajesh to enter witness box. Both have chosen not to enter witness box. No enmity between Diwakar and Rajesh is brought on record. In this situation, the appreciation of evidence by lower Court and conclusions reached by it cannot be labeled as either erroneous or perverse. Writ petition is dismissed. No order as to costs. Interim order vacated. R. & P. be sent back. JUDGE *GS.