1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1509 OF 2010 Sambhaji Dagadu Gofane & Others ...Petitioners Versus Nitin Sambhaji Gofane & Others ...Respondents Ms.Manjiri Parasnis for the Petitioner Ms.Tejasweeta Kadam for the Respondent Nos.1 to 6 Mr.S.D.Rayrikar, AGP for the State Respondent Nos.16 and 17 CORAM:- R.Y.GANOO, J. DATED:- 29th SEPTEMBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. Learned Advocate appearing on behalf of the respondent nos.1 to 6 waives service. By consent, petition is taken up for hearing. 3. The respondent no.1 to 6 instituted suit being Regular Civil Suit No. 34 of 2008 in the Court of Civil Judge, Senior Division, at Baramati, 2 District Pune for various reliefs. The respondent no.1 to 6 wanted to serve the writ of summons upon the defendants including the present petitioners who are original Defendant Nos.1, 2 and 7. The bailiff is said to have visited the house of the petitioners on 27.2.2008 for effecting the service and according to the bailiff service was effected. The learned Judge, before whom the suit was pending treated that the service is complete and as petitioners did not remain present before the court on the date when the suit was posted, the learned Judge passed an order that the chance for the petitioners to file written statement is over and ordered that the suit shall proceed ex-parte. After knowing this order dated 17.6.2008, the petitioner no.1 and 7 filed application at Exhibit 36 praying for setting aside the aforesaid order dated 17.6.2008. The petitioner no.2 filed separate application being Application No.29 for setting aside aforesaid order dated 17.6.2008. These two applications were decided by the learned Judge by Orders dated 19.9.2009. These two orders are challenged in this petition. 4. I have gone through the entire record. I have heard learned Advocates on both the sides. The learned Advocate for the 3 petitioners took me through the bailiff’s report and submitted that the first portion of the report goes to show that when the bailiff reached the residential address of these petitioners they were not available at the house. However, the original defendant no.6, who is the mother of the petitioner nos.1 and 2 and mother in law of the petitioner no.3 was available. The report states that the bailiff was informed that the petitioners have gone out of the house and they will be coming home in the evening. After this, the papers were delivered to the said mother in law i.e. original defendant no.6 and her thumb impression was obtained. Thereafter the summons were again served on the same day by pasting them at a conspicuous place of the premises of the petitioners. Learned Advocate appearing on behalf of petitioners pointed out that the original defendant no.6 is female member and therefore the first part of report of the bailiff cannot be accepted to hold that summons was properly served. Leaned Advocate Ms. Parasnis pointed out provisions of Order 5 Rule 15 as amended by the State of Maharashtra. She submitted that service on member of family who is female cannot be treated as good service. She therefore submitted that the order passed by the learned Judge on 17.6.2008 was not correct. She submitted that once order dated 4 17.6.2008 be treated as illegal, the impugned orders should be set aside and this petition should be granted. 5. Learned Advocate Ms. Parasnis further submitted that the report further mentions that the summons were pasted on a conspicuous place and that is how the service is effected as per Order 5 Rule 17 of Code of Civil Procedure (for short CPC). She further submitted that when the defendant no.6 informed the bailiff that the petitioners are likely to return in the evening, it is not as if the petitioners were not to return in near future and therefore the service could not have been effected. She further submitted that it was necessary for the bailiff to come on some other day and try to effect the service as per the provisions of law. She further submitted that the steps taken by the bailiff to serve by pasting is incorrect and therefore this Court should hold that the writ of summons was not properly served. She therefore submitted that if the writ of summons is not properly served, the petitioner must get a chance to file written statement and that “no written statement order”, and direction that “the suit to proceed ex-parte” should be set aside. 5 6. Learned Advocate appearing on behalf of the respondent nos.1 to 6 refuted the submissions made by learned Advocate Ms. Parasnis and she submitted that the service effected upon the original defendant no.6, a female member is good service. She further submitted that the learned Judge has observed that the service is effected as per the provisions of Order 5 Rule 17 of C.P.C. She took me through the provisions of Order 5 Rule 17 of C.P.C. and submitted that the action on the part of the bailiff was proper because the bailiff thought that the petitioners are not likely to return within the reasonable time and therefore summons was pasted. She therefore submitted impugned orders were properly passed. Learned Advocate for the respondent nos.1 to 6 submitted that the court has used its discretion in proper manner and therefore this court should not set aside impugned orders. 7. After hearing learned advocates on both sides and on perusing the record I hold that the manner in which the service is said to be effected upon the petitioners is illegal and therefore the finding given by the learned trial Judge that the service is properly effected is incorrect and therefore the order passed as “No Written Statement 6 and Suit to proceed exparte” is required to be set aside. Reasons are as under: The provisions of Order 5 Rule 15 of C.P.C. are amended so far as the State of Maharashtra is concerned and the said provision clearly indicates that the service is to be effected on an adult male member of the family of the defendant who is residing with him, if the defendant is not available for service or there are no arrangements made or no agent is appointed for receiving the service. If one reads the first part of the bailiff’s report it is clear that the service was sought to be done on female member i.e. defendant no.6. The argument advanced by learned Advocate for the respondent nos. 1 to 6 that the service is right cannot be accepted. The provisions of Bombay Amendment are incorporated so as to suit the situation prevailing in the State of Maharashtra. The argument advanced by the learned Advocate for the respondent Nos.1 to 6 that the principal provisions appearing in Order 5 Rule 15 of C.P.C. should be applied cannot be accepted. 8. For these reasons I hold that the service of summons upon the defendant no.6 cannot be treated as good service. The said report 7 goes to show that the papers were handed over to defendant no.6. This will mean that the bailiff was without any papers to be served upon a particular party, because the said papers had already gone in the hands of the defendant no.6. The bailiff’s report in the later part states that the job of pasting was done by affixing the summons and other papers on the conspicuous portion of the premises of the petitioner. To my mind, this statement of the bailiff is patently incorrect and false statement, because if he had handed over the papers to the defendant no.6, he would have no papers for effecting service by pasting. Even if it is accepted that he had a set of papers with him, the bailiff could not have effected service by using provisions of Order 5 Rule 17 of C.P.C. in the facts and circumstances of the case. If , what bailiff says is correct, if defendant no.6 had told the bailiff that the petitioners are likely to come in the evening, it will mean that the petitioners were very much residing at the address mentioned in the cause title. This will also mean that the petitioners are not avoiding the effecting of service. It is clear that the bailiff rushed to effect the service under Order 5 Rule 17 of C.P.C. In my view, the word “reasonable time” appearing in Order 5 Rule 17 of C.P.C. cannot be brought down to 8 few hours. In such a case it will be necessary for the bailiff to make a second attempt. In the present case the bailiff seems to have given false report and the same has been accepted by the learned trial Judge. In my view, the argument advanced by learned Counsel for the respondent nos.1 to 6 that the service was affected under order 5 Rule 17 of C.P.C. in right manner cannot be accepted. In my view, if what the bailiff says is correct, in the first place he had no papers to serve upon the other side by pasting and even if it is presumed that he had carried an additional set, it was not necessary for him to act in hasty manner and effect service by pasting at the first attempt. For the above reasons, I held that the service effected by the petitioner was illegal and therefore the impugned order is required to be set aside. 9. For the reasons mentioned aforesaid, the petition is disposed of by passing following order: ORDER i) The impugned Order dated 19.9.2009 passed below Exhibit 36 and the impugned order dated 19.9.2009 passed below Exhibit 29 are set aside. Applications are accordingly granted. The order passed by 9 the learned Civil Judge, Senior Division on 17.6.2008 directing that the petitioners will not be able to file written statement is set aside. ii) The order passed by the learned Civil Judge, Senior Division, Barmati, in Regular Civil Suit No. 34 of 2008 that the suit shall proceed ex-parte is also set aside. Petitioners shall appear before the learned Civil Judge Senior Division, Baramati on 20.10.2011 and file their written statements. Iii) In the facts and circumstances of the case, there shall be no order as to costs. (R.Y.GANOO, J.)