1 F.A.1038.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1038 OF 2009 WITH CIVIL APPLICATION NO.3910 OF 2009 Babulal S/o Mahadu Mahajan Age 65 years,Occup.Pensioner, R/0 A-48 Damiya Nagar,front of Rastrabharti School, Hadkeshar, C.T.M.Road, Amraiwadi,Ahmedabad. ...APPELLANT. VERSUS 1) Manisha @ Jyoti W/o Uttam Mahajan Age 33 years,Occup. Household R/o Ukha Bhima Mahajan, House No.1060 Galli No. 14, Subhashnagar, Dhule. And others. ...RESPONDENTS. ... Shri.D.S.Bagul,Advocate for Appellant Shri.Ashok V.Ghuge,Advocate holding for Shri.S.S.Jadhavar,Advocate for Respondents. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 28TH FEBRUARY, 2011. PER COURT : 1. Heard learned counsel for the parties. With 2 F.A.1038.09 the consent of learned counsel for the parties matter is taken up for final hearing at the admission stage itself. 2. Present First Appeal is directed against the Judgment and decree dated 03rd January, 2008 rendered by the learned Civil Judge Senior Division, Dhule, in Special Civil Suit NO. 168 of 2006, thereby decreeing the said suit of the original plaintiffs, which was filed under section 19 of the Hindu Adoption and Maintenance Act 1956, claiming maintenance. Original plaintiff No.1 is daughter-in-law of the original defendant, whereas original plaintiffs No. 2 and 3 are daughters of original plaintiff No.1 and grand children of original defendant. Original defendant is appellant in the present First Appeal. 3. By way of aforesaid judgment and decree, learned trial Court awarded maintenance to the original plaintiff No.1, of Rs.1000/-(Rupees One Thousand) per month, whereas original plaintiff 3 F.A.1038.09 Nos. 2 and 3 were awarded maintenance of Rs.500/- (Rupees Five Hundred) each per month, as well as trial Court awarded arrears of maintenance of Rs. 48,000/-(Rupees Forty Eight Thousand) to the plaintiffs towards last 24 months, by the said judgment and decree along with costs of the said suit. 4. It is reported that since there was no compliance of the said judgment and decree, respondents(original Plaintiffs) herein initiated Darkhast Proceedings. However, appellant herein filed Misc. Application No. 16 of 2009 praying for stay to the impugned judgment and decree dated 03.01.2008. Accordingly, by order dated 25.02.2009, the Court granted stay on the condition that the appellant herein shall deposit an amount of Rs.25,000/-(Rupees Twenty Five thousand) in this Court within one month, failing which the said application would stand rejected. 5. On the aforesaid back ground, Mr.D.S.Bagul, 4 F.A.1038.09 learned counsel for the appellant canvassed that the appellant, who is original defendant, was not duly served with summons in the above suit and the suit proceeded ex-parte against him. Mr. Bagul pointed out that Roznama dated 31st August, 2007, reflects that notice issued to the appellant- original defendant through R.P.A.D, was returned unserved with endorsement“unclaimed”. Accordingly, Mr. Bagul, learned counsel submits that such endorsement does not amount to service on the appellant. He relied upon the provisions of Order 5 Rule 17, 19 and 19(A) of the Code of Civil Procedure, and also upon the judgment pronounced in the case of Ramdhanlal Moharjdin Jaiswal Vs. M/s Pralhad Agency, Aurangabad reported in 1999(3) Mh.L.J.923. 6. Mr.Ghuge, holding for Mr. S.S. Jadhavar, learned counsel for respondents, submitted that the trial Court observed that defendant refused to accept summons and therefore, the suit proceeded ex-parte against the defendant, as stated in para 5 F.A.1038.09 No. 3 of the impugned Judgment. He relied upon the provisions of Order 5 Rule 9 of the Code of Civil Procedure and submitted that the notice of the proceeding sent to the appellant-defendant returned unserved with endorsement as “unclaimed” which amounts to constructive service upon the defendant. 7. After hearing learned counsel for the parties for substantial period, Mr. Ashok Ghuge, holding for Mr.S.S.Jadhavar,learned counsel for respondents consented to remand back the present matter to the trial Court with direction to record evidence of the parties and decide the said suit afresh, instead of harping upon issue in controversy in respect of service of summons upon the defendant. 8. Admittedly, the fact remains that appellant-original defendant could not get opportunity to adduce/produce his evidence before the trial Court and the principles of natural 6 F.A.1038.09 justice require that appellant-defendant should get an opportunity to put forth his defence/case before the trial Court. 9. Keeping in mind the said aspect and in the light of the submissions made by the learned counsel for respondents herein, I am of the view that present matter needs to be remanded back to the trial Court with direction to the parties to remain present before the trial Court on specified date and trial Court to record evidence of the parties afresh and decide the matter in accordance with law, by quashing and setting aside the impugned judgment and order passed by the trial Court on 03.01.2008. It is also necessary to direct the trial Court to consider the application, if any, preferred by the respondents herein for interim maintenance within specified period, as well as it is necessary to direct the trial court to decide the said suit itself within specified period, in the interest of justice. 7 F.A.1038.09 10. In the circumstances, present appeal is allowed partly and the impugned judgment and decree dated 03.01.2008, passed by the learned Civil Judge Senior Division, Dhule, in Special Civil Suit NO. 168 of 2006, stands quashed and set aside and the matter is remanded back to the trial Court with direction to give opportunity to the parties for adducing and producing their respective evidences on record and to decide the matter afresh in accordance with law. The parties are directed to remain present before the trial Court on 1st April, 2011 at 11.00 a.m. The trial Court is also directed to decide the application for interim maintenance, if any, preferred by the respondents herein within three months from the date of filing of such application. Moreover, trial Court is further directed to decide Special Civil Suit NO. 168 of 2006 by the end of December, 2011 by conducting hearing thereof expeditiously. 11. In the light of the First Appeal being allowed partly with aforesaid directions, nothing 8 F.A.1038.09 survives for consideration in the present Civil Application and therefore same stands disposed of, accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK