ash 1 cra-727.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.727 OF 2011 Prashant Shrinivas Bapat. .. Applicant Vs Ajit Narayan Ketkar. .. Respondent -- Shri Vaibhav Patankar for the Applicant. Shri S.J. Ronghe for Respondent. -- CORAM : A.S. OKA, J DATED : 14TH DECEMBER, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Applicant and the learned counsel appearing for the Respondent. Taken up for final disposal. 2. The Applicant is the original Plaintiff and the Respondent is the original Defendant. A suit was filed by the Applicant under the provisions of Maharashtra Rent Control Act, 1999 against the Respondent for possession of the suit premises. The possession was sought on the ground of non-user for a period of six months. The second ground of eviction is that the Respondent has acquired a suitable flat at Nashik and he has settled down at Nashik. The ex parte decree was passed by the Trial Court directing the Respondent to hand ash 2 cra-727.11 over possession of the suit premises. It appears that the ex parte decree was executed and the Applicant has been placed in possession. 3. An application was made by the Respondent for setting aside the ex parte decree. The ground on which the decree was sought to be set aside was non-service of suit summons. The learned Trial Judge rejected the application. An Appeal was preferred by the Respondent. By the impugned judgment and order, the Appeal Bench of the Court of Small Causes has allowed the Appeal by setting aside the ex parte decree. The Appeal Bench also directed the Applicant to restore the possession of the suit premises to the Respondent. 4. The first submission of the learned counsel appearing for the Applicant is that there is material on record to show that attempt was made by the Applicant to serve summons to the Respondent on three occasions and thereafter, on the application made by the Applicant, the Trial Court permitted substituted service. He pointed out that after the order was passed for effecting service by substituted service, the summons sent by Registered Post A.D. was returned with the remark “unclaimed”. He pointed out that though the summons was affixed on the suit premises in compliance with Rule 20 of Order V of the Code of Civil Procedure, 1908 and the return was on record, the Appeal Bench of the Court of Small Causes has erroneously observed ash 3 cra-727.11 that there is nothing on record to show that pasting of the summons was effected. The learned counsel submitted that by following the procedure prescribed by the said Code, a lawful order of substituted service was passed by the Trial Court was duly implemented. He pointed out that in fact the Respondent filed a declaratory suit in which he has claimed that he was residing in the suit premises. He pointed out that the decree has been passed by the Trial Court on the ground of non-user for a period of six months and more. He submitted that as there was proper service of summons, there was no ground to set aside the ex parte decree. In any event, he submitted that the Appeal Bench could not have ordered restitution. At least that part of the impugned order is illegal. The learned counsel appearing for the Respondent supported the impugned judgment and order. 5. I have considered the submissions. One of the averments made in the Plaint filed by the Applicant is that the Respondent has acquired a suitable premises at Nashik and he has settled down at Nashik. It is true that the summons was attempted to be served through a Court bailiff at the address of the suit premises in Mumbai on more than one occasions and the summons was returned unserved. The Appellate Court has noted that in one of the Reports dated 2nd August, 2007, the Bailiff recorded that the Respondent was not residing at the address of the suit premises and he is residing somewhere in ash 4 cra-727.11 Nashik. An Application at Exhibit – 6 for service of summons by substituted service was made by the Applicant. In Paragraphs 2 and 3 of the Application, it is stated thus:- “2 I state that again the Bailiff of this Hon’ble Court came along with me to serve the Notice on 15/05/2007 on 10.45 A.M. but the Defendant were again not found. I state that again I have made 3rd attempt of service with the bailiff upon the Defendant on 05/06/2007 at 5.05 P.M. and again he was not found. 3. Under the circumstances mentioned above, I state and submit that the Defendant knowingly and deliberately avoiding the service and inspite of 3 attempts have been made the Defendant could not be served. I therefore, pray that this Hon’ble Court may please to allow me to serve the Notice by substitute Service an by pasting one of the copy on the outer door of the suit premises and the Notice be permitted by this Hon’ble Court to send by Regd. A/D from the office of this Hon’ble Court.” 6. In this Application, the Applicant did not disclose that atleast one of the Reports of the Bailiff records that the Respondent was residing at Nashik. In substance, the averment made in the Application by the Applicant is that the Respondent was avoiding service of the summons at the address of the suit premises. The said averment is uncalled for inasmuch as the Applicant had made an averment in the Plaint itself stating that the Respondent was permanently residing at ash 5 cra-727.11 Nashik. On the basis of the averments made in the Application at Exhibit-6, the learned Trial Judge allowed the said Application. The learned Trial Judge permitted substituted service by pasting a copy of the summons on the outer door of the suit premises and by sending a copy of the summons by Registered Post A.D. and under Certificate of Posting at the address of the suit premises. 7. The learned counsel appearing for the Applicant tried to submit that the Applicant could not trace out the address of the Respondent. If that be so, the Applicant could have always applied for service of summons by way of publication in the newspapers having wide circulation at Nashik. However, without disclosing that the Respondent was a resident of Nashik, an application for substituted service was made. The summons issued on the basis of the said Application by Registered Post A.D. was returned unserved with the remark “unclaimed”. In the case of the New India Assurance Co. Ltd. V Smt. Nasibunnisa Mohd Israr Khan & Others (Civil Application No.1979 of 2011 in First Appeal Stamp No.13185 of 2011 decided on 14th October, 2011), this Court has held that if summons sent by Registered Post A.D. is returned unserved with the remark “unclaimed”, the same cannot be treated as a good service. The learned counsel appearing for the Applicant may be right to the extent that a report of pasting is on record. However, that is irrelevant inasmuch as the order passed by the ash 6 cra-727.11 Trial Court for substituted service proceeds on erroneous assumption that the Respondent was residing in the suit premises and was evading service. 8. There is another important aspect considered by the Appellate Court. The present suit for eviction was filed by the Applicant in the year 2007. In the year 2008, the Respondent filed a suit for declaration that he was a tenant. The Appellate Court has observed that this shows that till the year 2008, the Respondent was unaware of the fact that the Applicant had filed a suit for eviction against him. If he would have been aware of the fact that a suit for eviction was filed by the Applicant by accepting him as a tenant, he would not have filed a suit for declaration. In fact, the Appellate Court has noted that the Applicant filed a Written Statement in the said suit disputing relationship as the tenant and landlord. The Appellate Court has noted that in the Written Statement filed by the Applicant to the said suit, one of the contentions is that the Respondent was residing at Nashik. In Paragraph 18 of the impugned Judgment, the Appellate Court has recorded a finding that even while filing the Written Statement in the declaratory suit, the Applicant avoided to state that in the year 2007, he had filed a suit for eviction. In that context, in Paragraph 18 of the Judgment, the Appeal Bench has found that the Applicant has suppressed the fact of filing the suit for eviction. The ash 7 cra-727.11 Appellate Court has rightly observed that if the Applicant would have disclosed that his suit for eviction was pending, in fact both the suits would have been tried together by the Trial Court. Thus, the finding of fact recorded by the Appellate Court is that the Respondent was not duly served with the summons of the suit for eviction filed by the Applicant. There are two important factors considered by the Appellate Court. First is that while filing the Written Statement to the suit for declaration filed by the Respondent, the Applicant did not disclose pendency of his suit for eviction. The second factor is that while filing an application for substituted service of the summons, the Applicant did not disclose to the Trial Court that the Respondent was permanently residing at Nashik. 9. Hence, in revisional jurisdiction, interference cannot be made with the finding of the Appellate Court that there was no proper service of the suit summons to the Respondent. 10. The Appellate Court has passed an order of restitution. The Appellate Court while dealing with the Appeal arising out of the Application under Rule 13 of Order IX of the said Code, had no power to order restitution. The law is well settled. An application for restitution under Section 144 of the said Code is maintainable only before the Court of first instance. The law on this aspect which is well ash 8 cra-727.11 settled has been laid down in the case of V.T. Hundlam v. Robert C. Kenny (1996(1) Bom.C.R. 452). The adjudication made under Section 144 of the said Code has been given effect of a decree, and therefore, the order passed on the Application for restitution can be subjected to a regular Appeal. Therefore, clause (6) of the impugned Judgment and order will have to be set aside with liberty to the Respondent to apply for restitution before the Trial Court. 11. Hence, I pass the following order; ORDER (a) The impugned Judgment and Order is confirmed only to the extent of the Clauses (1) to (5) of its operative part. (b) Clause (6) of the operative part of the impugned Judgment and Order is set aside with liberty to the Respondent to apply before the Trial Court for restitution by invoking provision of Section 144(1) of the Code of Civil Procedure, 1908; (c) The Revision Application is partly allowed to the above extent; (d) The parties are directed to appear before the Trial ash 9 cra-727.11 Court on 12th January, 2012. It is made clear that there will not be any necessity of issuing a fresh summons or notice to the Respondent as now the Respondent is aware of the pendency of the suit; (e) The Respondent shall file Written Statement within a period of 30 days from 12th January, 2012; (f) The Trial Court shall not grant any further time to file Written Statement; (g) As the suit is of the year 2007, the Trial Court shall endeavour to conclude the trial on or before 30th June, 2012; (h) The learned counsel appearing for the Applicant on instructions states that that the Applicant will not part with possession of the suit premises till final disposal of the suit. This statement will be naturally subject to the final outcome of the restitution proceedings filed by the Respondent. ( A.S. OKA, J )