1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 950 Of 1999 in BCCC L.C. SUIT NO. 3041 OF 1993 1. Katijabai w/o Babu Tambe ) 2. Bashir Babu Tambe, ) 3. Mumtaj Babu Tambe ) 4. Ilias Babu Tambe ) 5. Shahin Babu Tambe ) 6. Sultana Babu Tambe ) 7. Tofique BabuTambe ) All Indian Inhabitants originally Nos.5 to ) 7 through No.1 at the time of filing the suit ) but now No.7 is is through No.1, and ) residing at their own property known as ) Babu NarayanTambe Compound, bearing ) Survey No.30 (part), 142, 143, 144, 145 ) of Villqage Vikhroli, Parksite, Vikhroli ) (West), Mumbai 400 079. ).. Appellants (orig. Plaintiffs) Vs. 1.Godrej & Boyce Manufacturing Co.Ltd. ) havig its Registered office at Godrej ) Boyce Compound, Phiroshshah Nagar, ) Vikhroli (W), Bombay 400 079. ) 2.The Municipal Corporation of Greater ) Bombay, a Corporation constituted under ) the Bombay Municipal Cororation Act, ) 1888 havig its office at Mahapalika Marg, ) Bombay 400 001. ).. Respondents (Orig. defendants) Mr. M.V.Holmagi, Advocate, for the appellants. Mr. Vinod Mahadik, Advocate for respondent No.2 – B.M.C. 2 None or respondent No.1. CORAM: J.H.BHATIA,J. DATE : 22nd July, 2009. ORAL JUDGMENT : 1. The appellants had filed L.C. Suit No.3041 of 1993 for declaration of their title by adverse possession and for injunction on certain suit property which, according to them, originally belonged to defendant No.1 Godrej & Boyce Manufacturing Co.Ltd. The defendant No.2 – Municipal Corporation claimed that the property belonged to the Corporation. The suit came to be dismissed on 1.10.1999 under Rule 55 of the City Civil Court Rules on the ground that the plaintiffs had not served the writ of summons on the defendants. Against the dismissal of the suit, this Appeal was filed. It is the contention of the plaintiffs/appellants that as per the Roznama, both the defendants had previously appeared and even the Court had given directions on 3.2.1998 to file written statement. According to him, in view of this, for want of service of the writ of summons, the suit could not have been dismissed. 2. Heard the learned Counsel for the appellants/plaintiffs and the Municipal Corporation/respondent No.2. None for the respondent No. 1/defendant No.1. 3 3. On perusal of the Roznama of the suit, it appears that since 1993 till 3.2.1998, the matter was pending before the City Civil Court only for hearing the Notice of Motion. On 3.2.1998, the learned Judge presiding over that Court, opined that considering the nature of reliefs sought, it would be just and fair to expedite the suit itself. He directed the defendant/Corporation to file written statement at the earliest and accordingly the suit was adjourned for filing written statement till 19.2.1998 with a direction to the parties to maintain status quo. The Notice of Motion came to be disposed of on that day. The Roznama dated 19.2.1998 reveals that no written statement was filed and the matter was adjourned for ex-parte hearing of the suit. It appears that thereafter again a Notice of Motion was taken out by the plaintiffs. In view of the said Notice of Motion, the matter was again adjourned from time to time for hearing that Notice of Motion. It appears that on 7.8.1999, the Court dismissed the Notice of Motion and directed the plaintiffs to complete the service of writ of summons if not already completed. On 10.9.1999, the Advocate for the plaintiffs sought time to ascertain whether the writ of summons was served or not. On 1.10.1999, the plaintiff No.1 was present, but the Advocate was absent. On that day, the suit came to be dismissed on the ground that no writ of summons was served on the defendant. 4 4. Taking into consideration the Roznama, it appears that as far as defendant no.2 – Municipal Corporation is concerned, it was throughout represented by Advocate. As far as defendant No.1 is concerned, it appears that on 24.6.1997, Mr. Omnath, advocate had appeared for defendant No.1 when the matter was adjourned for reply on the Notice of Motion. Thereafter, on number of dates, none was present for defendant No.1. On 29.7.1998, defendant No.1 was represented by Mr. Gawda, Advocate. It is material to note that this appearance was after the Court had given direction to the defendants to file written statement. In such circumstances, the defendants were expected to file the written statement. However, it appears that summons for filing the written statement was not actually served. In view of the fact that the suit was pending for more than six years only for hearing one or the other notice of motion and inspite of the direction to file the written statement, no written statement was filed for about 1-1/2 year and an order to proceed exparte was also passed and thereafter the suit came to be dismissed for want of service of the writ of summons, taking into consideration the claim of the plaintiffs over the immovable property situated in Mumbai, in my considered opinion, it will be in the interest of justice to remand the matter back with an opportunity to the plaintiffs to serve fresh writ of summons on the defendant No.1 to file written 5 statement. 5. In these circumstances, the Appeal is allowed. The impugned order of dismissal of L.C.Suit No.3041 of 1993 is hereby remanded back to the City Civil Court, Mumbai. The plaintiffs and the respondent No.2, who are represented before this Court, shall appear before the trial Court on 25.8.2009. Fresh writ of summons for filing written statement shall be served on defendant No.1 by registered post A.D. as per rules. The trial Court shall expedite the hearing of the suit and dispose of the same preferably before the end of 2009. (J.H.BHATIA,J.)