1 IN THE HIGH COURT OF BOMBAY AT GOA MISCELLANEOUS CIVIL APPLICATION No.790/2009 1. Mr. Domingos Antonio Monteiro, son of late Santiago Monteiro, aged 76 years, business & his wife 2. Mrs. Severina Fernandes E Monteiro alias Severina Rosita Fernandes or Rosita Fernandes e Monteiro, aged about 66 years, house wife, and their sons; 3. Mr. Caetano Arcadio Monteiro, aged 45 years, married, business, 4. Mr. Moses Florencio Monteiro, aged 44 years, married, business; 5. Mr. David Antonio Monteiro, aged 40 years, bachelor, business and 6. Mr. Savio Mariano Monteiro, aged 30 years, bachelor, all residing at H.no.C-14-331, Opp. Alfred Apartments, Kerant, Caranzalem, Ilhas, Goa .. Applicants. (original respondents) Versus 1. M/s. Dukle Constructions, a registered Partnership Firm Having its office at 313, Mahalaxmi Chambers, 18th June Road, Panaji, Goa; 2. Mr. Sameer G. Dukle; 3. Mr. Sachin Dukle, both sons of Gurudas Dukle Major of age and partners of M/s. Dukle Constructions, Residing at B-20/U G 1, Kamat Kinara, Caranzalem, 2 Ilhas,Goa; 4. Mr. Jose Esbelto De Xavier De Xavier De Castro Monteiro, Aged 80 years, residing at H.No.173 (C-19), Near Auxillium Convent, Caranzalem, Ilhas, Goa; 5. Mr. Antonio Tulemino M. S. Monteiro, Son of Joaquim F. Martins, Aged about 76 years,married, Landlord and his wife 6. Mrs. Olga Aires Fernandes Martins Aged about 70 years, Retired Govt. Servant, Both residing at H.No.10(C-18), St. Paul, Taleigao, Ilhas, Goa. .. Respondents. (original appellants) Mr. S. D. Lotlikar, Senior Advocate with Ms. Xettigar, Advocate for the applicants. Mr. Sudesh Usgaonkar,Advocate for the respondents. CORAM :- U. D. SALVI, J. DATE : 5th /9 th March, 2010. ORAL ORDER : This is an application for condonation of delay in filling application for review of the judgment dated 4.3.2009 passed in appeal from Order no. 63/2008 whereby the appellants herein were restrained from entering into landed property(suit property) in Special Civil Suit no.12/08/A, and interfering with the possession thereof pending the said suit. 3 2. The appeal from Order no. 63/2008 was filed by the respondents herein against the Order dated 29.4.2008 rejecting the application passed in application for temporary injunction by the Learned Civil Judge Senior Division, Panaji in SCS 12/2008/A. This Court vide judgment dated 4.3.2009 allowed the said appeal and restrained the appellants as aforesaid. The Hon'ble Supreme Court after hearing the parties was pleased to dismiss the Special Leave to Appeal(Civil) no.9273/2009, preferred against judgment dated 4.3.2009. The applicants state that the judgment and decree declaring the plaintiff no. 4 Jose Castro Monteiro( the appellant no. 4 in appeal from Order no. 63/2008), Ena Edviges De Castro and Paulo Antonio De Castro Monteiro( All three plaintiffs in SCS no. 169/1993/A) as the owners of the suit property by adverse possession in special civil suit no. 169/1993/A turned the scales in favour of the appellants in Appeal from Order no. 63/2008 and the said Judgment and decree was obtained ex-parte without actually serving the summons of the said suit on the defendant Longuinhos Xavier de Castro Monteiro on 8.6.1994. 3. According to the appellants they discovered following stated facts when they happened to go through the 4 Court file in Special Civil Suit no. 169/1993/A on the advice of their newly engaged lawyer in the month of June, 2009 : 1.Suit was presented for registration on 13.7.1993. 2.Summons was ordered to be issued and handed over to the plaintiffs on 18.10.1993 3.Absence of the copy of the summons issued to the defendants therein in the Court file. 4. Application dated 8.10.1993 tendered by the plaintiffs for leave to place on record a xerox copy of the registered AD card bearing the name of the addressee as “Court of the Civil Judge and Chief Judicial Magistrate, Panaji Goa, India” and addressed to Dr. Longuinhos Xavier de Castro Monteiro, C/o Ray Alvaro. 5. Absence of original AD card on record of the Court or any reference to it in roznama. 6. The AD card only bearing stamp of Panaji Post office dated 12.8.1993 and no stamp of the delivery of post office. 4. Only upon such perusal, it is the case of the plaintiff that the fraud played on the learned Civil Judge Senior Division in obtaining the said judgment and decree ex-parte in SCS 169/1993/A could be discovered and thereupon review application with the delay condonation application could be moved before this Court. 5. Learned Advocate Sudesh Usgaonkar pointed out from the statements in para 14 of the plaint in RCS No.61/2007 5 instituted by the applicants/ plaintiffs against the respondents/ defendants and two others in the Court of the C.J.J.D. Panaji for possession of the suit property that the applicants/ plaintiffs since September 2006 were aware of the complete record and proceedings of the SCS No.169/1993/A, particularly, the facts concerning the manner in which the ex-parte decree was obtained in the said suit by production of the copy of the A.D. Card for showing service of summons on the sole defendant -Dr. Longuinhos Xavier Da Crasto, resident of Dili Timir-Timur, Indonesia. These facts, he further pointed out from the notice dated 20.09.2006 addressed to the respondents on behalf of the applicant No.2 Severino Rosita Fernandes E Monteiro – wife of the respondent No.1 Dominogos A. Monteiro, were well within the knowledge of the said applicants since then and, therefore, he submitted, it did not lie in the mouth of the applicants to say that they could become alive to the said facts when they took inspection of Court files in SCS No.169/1993/A following the advice from their newly appointed Advocate in RCS No.61/2007/D/C. Statements in para.14 of the plaint in suit – RCS No.61/2007 do suggest that the applicants were in know of the facts as revealed through the papers and the proceedings of SCS No.169/1993/A to which they craved leave to refer to and rely upon. 6 6. Learned Advocate Lotlikar for the applicants submitted that the business of serving summons on the sole defendant – a resident of Indonesia in SCS No.169/1993/A remains surrounded in suspicion in as much as a copy of the A.D. Card accompanying the envelop containing summons issued by the Court could not have been produced by the plaintiffs in the said suit. In the first place, he submitted that act of handing over summons to the plaintiffs for service vide entry in the rojnama dated 13.07.1993 laid a foundation for the said suspicion. In his view, this suspicion was sufficient to disclose prima facie case of fraud played upon the Court for obtaining ex-parte decree in SCS No.169/1993/A. Relying on the judgments reported in 2006(7) SCC 416 – Hamza Haji Versus State of Kerala and others, 2002(4) All M R 198 – Ramjisingh Bhuliansingh Versus Tarun K. Shaha and others and 2008(12) SCC 481 – K. D. Sharma Versus Still Authority of India Ltd. and others, he submitted that in case of prima facie disclosure of the fraud, nothing should stop this Court from unsettling what was obtained by fraud and for that purpose even shortcomings in the delay condonation application ought to be ignored and delay be condoned for going deeper into the aspect of fraud for judging the worth of the decree obtained by playing such fraud vis-a-vis the order dated 4.3.2009 in Appeal from Order No.63/2008 under review. 7 7. Countering these submissions, learned Advocate Sudesh Usgaonkar for the respondents submitted that unless the fact of fraud is proved in the Court of law, may be in the suit for setting aside the said decree obtained in SCS No.169/1993/A, it would not be prudent to rush to the conclusions that the decree so obtained was obtained by fraud. To fortify his submissions, he placed reliance on the judgment reported in AIR 1983 Allahabad 139 Deota Prasad Versus Tribuvan and others. He further submitted that the defendant in the said suit against whom such decree was obtained and who ought to have been aggrieved party, has not come forward with a challenge to the said decree. He further submitted that mere production of the A.D. Card before the Court cannot be read as a false representation knowingly made through such production that summons has been duly served on the defendant or that the party producing such A.D. Card could have no reasonable belief that the representation regarding service of summons was true. 8. He further submitted that where only fraud alleged is merely a non-service of summons then such a suit to set aside the decree, on alleged ground of fraud is not maintainable. To gain strength to his submissions, he placed 8 reliance on the judgment of the Hon'ble Apex Court in A.C. Ananthaswami and others Vs. Boraiah, deceased by L.Rs. - reported in (2004)8 SCC 588. 9. Learned Advocate Sudesh Usgaonkar for the respondents invited attention of this Court to the fact that nothing has been produced to evince the return of the envelop containing summons to the court or the defendant Dr. Longuinhos denying the service of summons. He further pointed out from the record that it was not the case of non- issuance of the summons to Dr. Longuinhos - defendant in SCS No.169/1993/A by registered post A.D. and postal receipt No.404, dated 12.08.1993 showing the dispatch of the summons by registered post A.D. as per the copy at page 72 of the annexures to review application was part of the record and proceedings. He further pointed out that the registration No.404 and the date of posting also appeared on the copy of the A.D. Card and the A.D. Card showed postal seal dated 12.08.1993. These facts apparent from the record, he argued, are sufficient to raise a presumption of service of summons on the defendant as provided under the provisions of Order V, R.9 subclause (5) of CPC. Prima facie, the fact of dispatch of summons by registered post A.D. to the defendant at Dili Timur, Indonesia can very well be gathered from the postal 9 receipt No.404, dated 12.08.1993. Fact remains that the summons issued was not returned and the learned Civil Judge noticed no wrong in taking the photocopy of the A.D. Card bearing acknowledgment of the receipt of postal communication given by the defendant on record. There are no allegations of any judicial impropriety made against the learned Civil Judge in accepting the copy of the A.D. Card on record. Denial of the service of summons in the said suit by the defendant therein is also not shown to surface anywhere in the record. Prima facie, it is difficult to conclude that the decree was obtained in RCS No.169/1993 by playing fraud as alleged. There is no proof in the present case of the fact that with due diligence the petitioners could not have got the information which they now claim to have about the alleged fraud by mere chance while inspecting the record and proceedings of SCS No.169/1993/A till August 2009. 9. In the result, this delay condontion application must fail. The application stands rejected with no order as to costs. U. D. SALVI, J. SMA 10