1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6315 OF 2008 WRIT PETITION NO. 6315 OF 2008 WRIT PETITION NO. 6315 OF 2008 Smt. Jankibai Hipparkar .... Petitioner Versus Shri Goraknath Shyamroop Mourya & Anr. Respondents Mr. D.B.Sawant, Advocate, for the petitioner. Mr. Chifford Martis, Advocate, for respondent Nos.1 & 2. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 5th December,2008. DATE: 5th December,2008. DATE: 5th December,2008. P.C. P.C. P.C. 1. The petitioner was a tenant in the suit premises. RAE Suit no.285/487 of 2000 was filed by one Nankadevi for eviction and possession. ON 25.3.2004, the suit was decreed ex-parte. Between 6th and 9th March, 2006 in absence of the petitioner/defendant decree was executed and possession of the suit premises was taken by the decree-holder. The defendant took out Misc. Notice 2 No.149 of 2006 for setting aside the exparte decree and also for restoration of the possession of suit premises to her. According to her, she was not present in Mumbai on 11.8.2000 nor her husband was present and the suit summons was not served on her and the suit was wrongly decreed ex-parte. The learned Judge of the Small Cause Court allowed that application and set aside the exparte decree and also directed the plaintiff to restore the possession to the defendant. That order was challenged in the Revision Application No.297 of 2007 by the L.rs. of the original plaintiff. That Revision Application was allowed. The original defendant has challenged that order in the present Writ Petition. 2. After perusal of the record, it is clear that the suit summons was never served on the defendant herself. As per the bailiff’s report, it was served on her husband. However, during evidence recorded in the said Application, the husband deposed that he was not present in the suit premises nor he was present in Mumbai from May, 2000 to 17.9.2000. However, the evidence was led to show that in fact he was on duty in the Dockyard from 10.8.2000 to 12.8.2000 which shows that he was present in Mumbai. However, no evidence was produced to show that the signature on suit summons was of the husband of the defendant. The bailiff was also not 3 examined. Even if for a moment it is believed that he was on duty, there is nothing to show that at the time of alleged service, he was present in the house. Taking into consideration the circumstances, I find that the learned trial Court was right in allowing the application to the extent of setting aside the ex-parte decree and restore the suit to file. 3. The learned Counsel for the petitioner/defendant does not press for restoration of possession at this stage as possession has already been handed over to the plaintiff. 4. In view of the above, in the interest of justice, the petition is allowed. The impugned order passed by the Revisional Court is hereby set aside and the order passed by the trial Court to the extent of setting aside the ex-parte decree and restoration of the suit is hereby restored. The parties are directed to appear before the trial Court on 5.1.2009. The trial Court shall hear and dispose of the suit as early as possible. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.) 4