1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD UNREPORTED APPEAL FROM ORDER NO.26 OF 2010 Date of decision:11/8/2010 For approval and signature HON'BLE MR. JUSTICE R.K.DESHPANDE 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see Yes/No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? Yes/No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes/No. Civil Judges ? 6. Whether the case involves an important Yes/No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/26-10AO 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.26 OF 2010 1. Vaishali Aromatics (I) Pvt.Ltd., A Registered Company under the Companies Act having its office at 30-MIDC, Chikalthana, Aurangabad. 2. Vijay s/o Madhukarrao Joshi, Aged 53 years, Occu.Business, r/o. 256-Ayodhya, N-3, CIDCO, Aurangabad. ...APPELLANTS (Petitioners-Orig.Defendants VERSUS M/s Pleasant Associates, A registered partnership firm, Through its partner, Shri Nitin s/o Ashok Pagariya, Aged 30 yrs., Occu.Business, r/o.Flat No.16, R.B.Landmark, Jyoti Nagar, Aurangabad. ...RESPONDENT (Respondent - orig.plaintiff) ... Mr. V.M.Kagne, Adv., for the appellants. Mr.B.A.Darak, Adv., for respondent. ... CORAM:R.K.DESHPANDE, J. DATE : 11/8/2010 *** 3 ORAL JUDGMENT: 1. This appeal challenges the order dt. 11.1.2010 passed by the Joint Civil Judge, Senior Division, at Aurangabad, in MARJI No. 3/2009. By this order, the application filed by the present petitioners, who are original defendants, under Order 9 Rule 13 for setting aside ex parte judgment and decree passed by the trial Court in Special Civil Suit No.310/2007 on 10.7.2008, has been rejected. 2. Notice for final disposal was issued in this matter on 18.2.2010. Shri Darak, learned Counsel, appears for the respondent (sole). Learned Counsel for the parties agree that the matter can be finally disposed at the stage of admission. Hence, admit. The matter is heard finally by consent of the parties. 3. The only question involved in this appeal is whether there was compliance of Order 9 Rule 13 of C.P.C. The trial Court has held that in view of proviso to Rule 13 of Order 9 of C.P.C., no decree can be set aside merely on the ground of irregularity of service of summons. According to the trial Court, the petitioner refused to accept the third envelope. However, 4 there is no finding recorded that the third envelope, which the petitioner refused to accept, contained the summons of the Special Civil Suit No.310/2007, issued by the learned 4th Joint Civil Judge, Senior Division, Aurangabad. In absence of such finding, the Court could not have held that there was merely an irregularity in the service of the summons. Even if there was an irregularity in service of summons, the Court has to further record a finding that the defendant had notice of the date of hearing of the suit and had sufficient time to appear and answer the plaintiffs claim. However, such finding is also not recorded by the trial Court. 4. Learned Counsel for the appellant has relied upon decision of the Apex Court reported in AIR 2002 SUPREME COURT 2370 (Sushil Kumar Sabharwal Vs. Gurpreet Singh and others) in support of his submission that knowledge of pendency of suit cannot be equated with the knowledge of date of hearing of the suit as provided in second proviso to Order 9 Rule 13 of C.P.C. The trial Court has failed to take into consideration all these aspects and to record the findings. The order, therefore, cannot be sustained. 5. In the result, the instant Appeal is allowed. The order dt.11.1.2010 passed by the 5 learned Joint Civil Judge, Senior Division, Aurangabad, rejecting application (MARJI) No. 3/2009 is hereby quashed and set aside. The matter is remitted back to the trial Court for decision on the said application afresh after hearing all the parties. There shall be no order as to costs. The trial Court is directed to decide the application within a period of two months from the date of receipt of writ. Civil Application disposed of. (R.K.DESHPANDE) JUDGE ... agp/26-10AO