1 AO252-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 252 OF 2010 Shivaji Sunar Palekar & Ors. ...Appellants (Orig.Defendants) vs. Ramdas Sitaram Palekar & Ors. ...Respondents (Orig.Plaintiffs) Mr.G.S. Godbole i/b. Ms.Manjiri S. Parasnis for the Appellants. Mr.S.M. Oak i/b. Mr.Sagar Joshi for Respondent Nos.1 to 3. CORAM : J.H. BHATIA, J. DATED : OCTOBER 11, 2010 P.C. :- 1 Heard learned Counsel for the parties. 2 The respondents are the original plaintiffs. They had filed Regular Civil Suit No.76 of 2001 for Specific Performance of Contract for 2 AO252-2010 sale of immovable property against the defendants who are present appellants. The suit was dismissed by the trial court after hearing the parties. The plaintiffs filed Regular Civil Appeal No.59 of 2004. The said appeal was allowed by ex parte judgment dated 3rd February, 2007 as none of the defendants had appeared. Later on, when the defendants came to know about the said decree, they filed Misc.Civil Application No.24 of 2008 under Order 41 Rule 21 read with Order 9 Rule 13 of the CPC for setting aside the ex parte judgment and decree. According to them, they were not served with the notice of the said appeal. The application was opposed. The learned District Judge, Baramati, rejected the said application by the impugned order dated 17th August, 2009. Hence, this appeal. 3 The learned District Judge in para 15 of the impugned order observed that cousin brother of the applicant no.2 - Ashok Sunder Palekar had accepted the notice on his behalf stating that the 3 AO252-2010 applicant no.2 had gone to the field. The Bailiff report also shows that none of the respondents were available and one Hariba Deoba Palekar - cousin of noticee no.3, who is the applicant no.2, was present. He informed that shortly before, the noticee no.3 i.e. Ashok had gone to the field. He was also informed that noticee nos.1 and 2 had gone to work. Therefore, the Bailiff gave the notice of Applicant no.2 - Ashok to said Hariba. The learned Counsel for the appellants rightly pointed out that under Order V Rule 15 CPC, service of summons on the defendant may be effected on some adult member of the family if the defendant is absent from his residence at the time when service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within reasonable time. In the present case, neither the report of the Bailiff shows nor any affidavit was placed on record to show that the applicant No.2 - Ashok was not likely to be found at residence within reasonable time. If he had left the 4 AO252-2010 house shortly before the Bailiff went there to serve and it was known that he had gone to his field, intimation could have been given to him and notice could be served on him but such attempt was not made by the Bailiff and he handed over the notice to his cousin Hariba. Therefore, it must be held that this was not proper service. 4 As far as applicant no.1 - Shivaji is concerned, notice was sent to him by registered post A.D. And it was returned unserved with endorsement not claimed . It appears that the postman had been at the given address at Village Bhimnagar but he was not found there and therefore, it was returned. Technically, it may be said to be proper service but the fact remains that the notice was not actually served on the respondent no.1. As far as respondent no.3 is concerned, she was not served through Bailiff but record reveals that she was served by Registered Post AD at her Ghargao address. Therefore, service to appellant no.3 appears to be 5 AO252-2010 proper. 5 In view of the above facts, it becomes clear that appellant no.3 was actually served by Registered Post A.D.. The Appellant no.1 was not actually served though technically it is proper service. However, at least, appellant no.2 was not served and he could ask for setting aside the ex parte judgment and decree. If the ex parte decree could be set aside in respect of one, it could also be set aside in respect of the other defendants, as it was the suit for Specific Performance of Contract for sale of an agricultural land. Valuable rights in the property were under stake. It is also important to note that the plaintiff had lost the suit before the trial court and he succeeded in appeal because the defendants were not present. In such circumstance, the interest of justice requires that the ex parte decree should have been set aside and opportunity should have been given to the defendants to contest the appeal. 6 AO252-2010 6 Learned Counsel for the respondents- plaintiffs contended that the defendants-appellants could have filed second appeal against the judgment passed by the appellate court. In my considered opinion, it would not serve the purpose because scope of second appeal is very limited and restricted to question of law while in the first appeal, the appellate court is expected to scrutinize the whole evidence and to come to its own conclusions while allowing or dismissing the appeal. 7 For the aforesaid reasons, appeal is allowed. The impugned order is set aside. Misc.Civil Application No.24/2006 is hereby allowed and ex parte judgment and decree passed in Regular Civil Appeal No.59/2004 is hereby set aside. Said Regular Civil Appeal No.59/2004 is restored to the file of the District Judge, Baramati, for final hearing and disposal. The parties shall appear before the District Court on 22nd November, 2010 and the learned 7 AO252-2010 District Judge shall expedite and dispose of the appeal, as early as possible and preferably within six months. (J.H. BHATIA, J.)