1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.250 OF 2010 Ahmed Abdulali Hirani Petitioner versus Nandlal Doulatram Ahuja and others Respondents Mr.G.S.Godbole i/by Rajendra Sorankar for petitioner. Mr.Haresh Mansukhani for respondents. CORAM : A.S.OKA, J. DATE : 05th March 2010 JUDGMENT :- 1. Submissions of the learned counsel for the parties were heard on 22nd and 26th February 2010. Today the petition is kept for dictation of judgment. The first to third respondents are the original plaintiffs. The petitioner is the original first defendant and the fourth respondent is the original second defendant. The first to third respondents filed a suit for possession against petitioner and fourth respondent. The suit for possession relates to suit premises namely a shop premises on the ground floor along with a mezzanine floor in a building known as Daulatram Mansion situated at 6, Kittridge Road, Shahid Bhagatsingh Road, Coloba, Mumbai-05. The description of 2 the shop premises abutting the suit premises has been also incorporated in the plaint. A decree was passed in the said suit on 13th August 2008. The petitioner is a tenant in respect of suit premises. An application for setting aside the said decree was taken- out by the petitioner in March 2009. The said application was contested by first to third respondents. The said application in the form of notice was dismissed by the Trial Court. An appeal was preferred by the petitioner before the appeal bench of the Court of Small Causes. The said appeal has been dismissed. By this writ petition under Article 227 of the Constitution of India, the aforesaid two orders have been challenged. 2. The learned counsel for the petitioner has taken me through the reports of bailiff which are annexed to the petition. He pointed out that the said reports show that there was never a proper service of suit summons to the petitioner. He pointed out that in some of the reports of the bailiff, even the description of the suit premises is not correct and there is no material on record to show that an attempt was made by the Court bailiff to serve the suit summons at the address of the suit premises. He pointed out that admittedly when the alleged summons was tried to be served, the petitioner was abroad. He submitted that this is not a case where substituted service could have been permitted. He submitted that the Courts below have lost 3 sight of the fact that there is no proper description of the suit premises in the reports of bailiff to indicate that an attempt was properly made to serve the suit summons at the address of suit premises. He invited my attention to the relevant provisions of Order V of Code of Civil Procedure, 1908. He submitted that there is no proper service effected even under Rule 20 of Order V of the said Code and in any event it cannot be said that any attempt was made by the petitioner to avoid service. He submitted that in fact there is no proper service of summons and, therefore, the Courts below have committed an error by rejecting the application filed by the petitioner. He submitted that as the proper service of the suit summons is not proved, the decree ought to have been set aside. Learned counsel for the first to third respondents supported the impugned orders. 3. It will be necessary to consider the findings recorded by the Courts below. The Trial Court observed that bailiff's reports dated 20th October 2007, 29th October 2007, 3rd November 2007 and 1st January 2008 show that the bailiff visited the suit premises for effecting the service of writ of summons to both the respondents but both of them were not found in the suit premises. It is observed that as per order dated 18th January 2009 permitting substituted service, the Court bailiff visited the suit premises on 6.2.2008 and pasted the summons with two copies of the plaint. The summons dispatched by 4 RPAD to both the defendants were duly served and acknowledgement bears the rubber stamp of "Smokin Joes, DIAL-N- PIZZA". Thus, the Trial Court found that four attempts were made by the Court bailiff from October 2007 to January 2008 to effect service of writ of summons. It must be noted here that the Trial Court has recorded another finding that the vakalatnama of the petitioner dated 22nd January 2009 is filed in execution application which showed that as on that date the petitioner was aware about the execution. The notice of execution application was served to the petitioner after 22nd January 2009. 4. Now, turning to the findings recorded by the Appellate Court, in paragraph 8 the Court has noted that as many as five attempts have been made from October 2007 to January 2008 to effect service of writ of summons. According to the case of the first to third respondents, the petitioner was the tenant and the second defendant was helping the petitioner in the business. Another important aspect noted by the Appellate Court was that the address of the suit premises was the last known address known to the original plaintiffs. It is recorded that the writ of summons was also sent through Under Certificate of Posting which is not returned apart from the fact that the writ of summons was pasted on the suit premises on 18th January 2008. 5 5. It is noted that the notice of execution application was served to the petitioner on 23.1.2009 and a vakalatnama signed by the petitioner on 22.1.2009 was filed on record. As there are concurrent findings of fact recorded by the Courts below on perusal of the report of bailiff, normally it is not expected of the writ court to peruse the reports of the bailiff. However, I have perused the reports of the bailiff as there are some submissions made by the learned counsel for the petitioner. All the reports of the bailiffs give correct description of the suit premises being a shop on the ground floor of the building Daulatram Mansion. The said reports are on oath. In most of these reports the names of the persons who were present in the suit premises at the time of service have been mentioned. Reports dated 29th October 2007 and 3rd November 2007 specifically record that one Rajesh who was present in the suit premises stated that the petitioners rarely comes to the suit premises. Apart from this, postal acknowledgements of the writ of summons issued by RPAD have been placed on record. Both the postal acknowledgements bear rubber stamp of M/s.smokin Joes, DIAL-N-PIZZA and there is a signature appearing on that. Apart from that, the Appellate Court has noted that even suit summons which is dispatched under UPC is not received back by the Court. 6 6. At this juncture it will be necessary to refer to what is stated in the application for setting aside the ex-parte decree. A perusal of the said application shows that notice of the execution application was received by the petitioner on or about 23rd January 2009 through Ms.Bhatija (would be wife of the petitioner) when the petitioner was admittedly out of India. The Trial Court has noted that the vakalatnama of the petitioner dated 22.1.2009 was filed on record. In paragraph 6 of the application it is alleged that the petitioner was out of India from October 2007 to December 2007 and he returned India only on 30.12.2007. He has stated that he mainly remained out of shop premises after coming back to India and thereafter, once again he left India on 28th January 2008. It is pertinent to note that in paragraph 6 of the said application the petitioner has stated that he has taken search of the proceedings of the suit. Therefore, the petitioner is fully aware of the content of the reports of the bailiffs. In the application there is no challenge to the contents of the reports of the bailiff which are on record of the suit. It is not the case of the petitioner that before he left India, he had communicated any address for service to first to third respondents. Even in the application for setting aside the ex-parte decree, the petitioner has referred to the summons sent by RPAD and has stated that he was not aware as to who accepted the RPAD on his behalf. There is no dispute raised about the address of the suit premises mentioned in 7 the reports of bailiffs as also on the postal envelope. The petitioner has merely stated that he has not received any such RPAD cover. It appears that said summons sent by RPAD was delivered in the suit premises and therefore the petitioner cannot plead ignorance about it. 7. After making repeated attempts for service, the Court permitted service to be effected by pasting as well as by RPAD and by under certificate of posting. The first to third respondents made repeated attempts on not less than five occasions to serve summons. Only thereafter they were permitted to serve by pasting and by Registered Post A.D. Thus service was made in accordance with Rule 17 of Order V of the said Code. 8. In the circumstances, no fault can be found with the concurrent orders passed by the Courts below. It must be stated here that when the petition earlier appeared before this Court on 18th January 2010 and 21st January 2010, a suggestion was made by the Court that if the petitioner is ready and willing to pay rent at the rate of market rate of Rs.50,000/- per month to the first to third respondents, the said respondents may consider of consenting for setting aside the decree for possession. However, the petitioner expressed his inability to pay the rent at the market rate. In any case, there is absolutely no case on merits. The concurrent findings recorded by the Courts below are 8 based on material on record. The writ petition is accordingly rejected. 9. At this stage, the advocate for the petitioner prays that the decree for possession should not be executed for reasonable time. The said prayer is opposed by the advocate for first to third respondents. For a period of eight weeks from today, the decree for possession shall not be executed. (A.S.OKA, J.)