( 1 ) wp6400.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6400 OF 2010 Fakirchan s/o. Sakharam Rithe & Anr. .. Petitioners Versus Assaram s/o. Kondiba Rithe .. Respondent Mr. S.G. Godya, Advocate for the petitioners. Mr. M.M. Joshi, Advocate for sole respondent. CORAM : V.R. KINGAONKAR,J. DATED : 28.01.2011 P.C. :- 1. By this petition, the petitioners seek to challenge the order rendered by the Trial Court on their application (Exh.33) seeking setting aside of the ex-parte order rendered against them and leave to file written statement. 2. The petitioners are original defendant Nos. 1 & 2. The application was filed by them on the ground that the ex- parte injunction was clamped against them, though they were ( 2 ) wp6400.10 not duly served with the suit summons. They came to know about pendency of the suit only when they were restrained from entering into the suit land bearing Gat No. 210 situated at Chikalthana. They submitted that they were not given due opportunity to put-forth their written statement. They had approached the Court, but due to vacation they were not able to trace out the matter and engage the advocate to take appropriate steps. The application, however, was rejected by the Trial Court by the impugned order dated 29.06.2010. The Trial Court observed that the application (Exh.33) was filed on 28.01.2010 after the final arguments were heard and the matter was reserved for judgment. That is the main reason as to why the application was rejected, because after the matter is reserved for judgment, there was no scope for entertaining such application. 3. Heard learned Counsels for the parties. 4. Mr. Dodya has relied upon entries in the Roznama which, prima facie, indicate that the observation of the Trial Court that the application was filed after reservation ( 3 ) wp6400.10 of the matter for delivery of judgment is incorrect. It does appear, no doubt, that such reason recorded by the Trial Court is improper and incorrect. The Roznama dated 19.12.2009 shows that the arguments of the plaintiff’s were heard on 19.12.2009 and the matter was reserved for judgment on 28.12.2009. However, on the same day, the plaintiff’s application (Exh.29) was taken on record. He had sought leave to adduce secondary evidence. The matter was, therefore, posted on 28.12.2009 for decision of the plaintiff’s application (Exh.29). Needless to say, it was not posted for final decision in the suit. Consequently, it could not have been stated by the Trial Court that the application was not maintainable because the matter was posted for judgment and the stage had already bygone. 5. Be that may as it is, the conduct of the petitioners cannot be regarded as fair enough. It appears that the suit summons was fixed on the residential house of the petitioners. Though short time was available to them, yet they did not take care to locate as to what was the stage of the suit and what was necessary for them to do in the ( 4 ) wp6400.10 matter. It further appears that major son of petitioner No.1 had appeared before the Trial Court and had also filed V.P. It appears that the major son of the petitioner No.1 was not allowed to participate in the suit on the ground that he was not party to the lis. It is well settled that the service of summons on any adult member of the family is sufficient for the purpose of due service as contemplated under Order V Rule 15 of the C.P.C. Thus, apart from the substituted service under Order V Rule 20 of the C.P.C. there was due service on the adult member of the family of the petitioner No.1. The main claim of the plaintiff was against the petitioner No.1 on the ground that he sold the land in question to petitioner No.2 without any legal authority. It appears further that on the day the application filed by the petitioners was dismissed, subsequent transfer has been effected by them in favour of third party. This conduct on the part of the petitioners does imply on fairness and tactics of hide and seek game. 6. The petitioners, however, are entitled to seek opportunity to defend themselves because rejection of their ( 5 ) wp6400.10 application is founded on erroneous ground that the suit was posted for judgment. Once it is found that the fact situation is not properly stated by the Trial Court, the impugned order is not sustainable in the eye of law. At the same time the petitioners’ conduct cannot be regarded as unblemished and as such they are liable to pay costs in as much as the respondent is unnecessary dragged in the protracted litigation in the Trial Court as well as this Court. Moreover, the respondent will be required now to add the subsequent purchaser, as a party to the suit and, may be, will have to face further complications. 7. For the reasons aforestated, the petition is allowed. The impugned order is set aside subject to payment of costs of Rs. 4000/- (Rupees Four Thousand Only), which shall be paid in the Trial Court within a period of four weeks. If the costs are so deposited by the petitioners, the impugned order be set aside. Their application be deemed as allowed and they shall be granted liberty of filing of written statement, if it is immediately filed along with payment of costs, on the same day and moreover they shall not ( 6 ) wp6400.10 be granted unnecessary adjournments and in any case not more than three, for adducing their evidence, if any, after filing of the written statement. 8. The writ petition accordingly stands disposed of. [V.R. KINGAONKAR,J.] snk/2011/JAN11/wp6400.10