1 WP 7862/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7862 OF 2010 P.K. Mohinuddin, since deceased through his heirs Mrs. Aishabi & Ors. .. Petitioner V/s Jagdish Prasad Pandey & Anr. .. Respondents Mr. A.S. Uraizee i/b Uraizee and Law Associates for the petitioner. Mr. A.R. Pande for the respondents. AND WRIT PETITION NO. 8609 OF 2010 Jagdish Prasad Pandey & Anr. .. Petitioners V/s P.K. Mohinuddin, since deceased through his heirs Mrs. Aishabi & Ors. .. Respondents Mr. A.R. Pande for the petitioners. Mr. A.S. Uraizee i/b Uraizee and Law Associates for the respondents. CORAM : D.G. KARNIK, J. DATE : 14TH JANUARY 2011 2 WP 7862/10 P.C. : 1. Heard learned counsel for the parties. 2. Since these are cross petitions, I would refer the parties by their original status in the suit. 3. The plaintiffs are the landlords and the defendant is the tenant. The plaintiffs filed the suit (R.A.E. Suit No. 1101/1810 of 2002) for possession against the defendant in the Small Causes Court, Mumbai. The defendant did not appear in the suit and the suit proceeded exparte. After considering the evidence, the trial Court dismissed the suit. Aggrieved plaintiffs filed an appeal in which also the defendant remained absent in spite of service. The appellate Court allowed the appeal (Appeal No. 776 of 2003) by its order dated 3rd August 2007. It appears that after the decision of the appeal, the original defendant died on 22nd August 2007 at Kerala. The decree was executed by the plaintiffs against the heirs of the defendant on 12th December 2007. On 18th February 2008, the heirs of the defendant applied to the appellate Court for setting aside the exparte decree and hearing the appeal on merits. By an order dated 11th December 2008, the appellate Court allowed the application and set aside the exparte decree passed in appeal and restored the appeal to the file. Thereafter the appeal was heard by the appellate Court 3 WP 7862/10 and by an order dated 21st August 2010 the appellate Court allowed the appeal and remanded the suit back to the trial Court for hearing it afresh on merits. While allowing the appeal and remanding the matter, the appellate Court did not order restoration of possession pending decision of the trial Court. Aggrieved by the decision of the appellate Court allowing the appeal, the plaintiffs landlords have filed Writ Petition No. 8609 of 2010. Since the appellate Court did not order restoration of possession on remand of the suit, the heirs of the defendant, feeling aggrieved, have filed Writ Petition No. 7862 of 2010. 4. So far as the Writ Petition No. 8609 of 2010 filed by the original plaintiffs is concerned, the appellate Court has held that the suit summons was not served on the defendant-tenant in accordance with law. It has held that the defendant had developed unsoundness of mind and had shifted to Kerala. The summons which was first sent to the defendant at the address of the suit premises was returned unserved as the defendant was not found there. It was thereafter served on the defendant by affixing it on the suit premises. The appellate Court has held that this was improper service. The finding recorded by the appellate Court that the service of summons on the defendant was not proper, in my view, is a possible finding of fact. When 4 WP 7862/10 the defendant was not found in the suit premises and had gone to Kerala, if at all substituted service were to be allowed, the Court ought to have allowed service by public notice and not by affixation. In any event, the finding recorded by the appellate Court that the summons was not properly served on the defendant being a possible finding of fact does not call of any interference in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. Writ Petition No. 8609 of 2010 filed by the plaintiffs landlords therefore deserves to be rejected. 5. As regards Writ Petition No.7862 of 2010 filed by the heirs of the defendant tenant, in my view, the appellate Court committed no error in not ordering restoration of possession to the respondents during the pendency of the suit. Firstly, the appellate Court has recorded a finding of fact that the respondents were not in actual use of the suit premises on the date when the decree was executed. Secondly, it may be noted that the restoration of possession cannot be automatic. Section 144 of the Code of Civil Procedure (for short “the Code”) provides that when a decree or order is varied or reversed in an appeal, revision or other proceedings or is set aside or modified in any proceedings, the party can apply for restitution. The 5 WP 7862/10 heirs of the defendant were not entitled for an automatic restitution but they were required to make an application for restitution under section 144 of the Code. That has not been done. The decision of the appellate Court not to grant restitution by the very order by which it set aside the decree of the trial Court cannot be faulted with. Consequently, Writ Petition No. 7862 of 2010 filed by the defendant tenant also deserves to be rejected. 6. For these reasons, both the writ petitions are rejected summarily. (D.G. KARNIK, J.)