1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO. 2851 OF 2008 IN SUMMARY SUIT NO. 1729 OF 2005 Danjibhai N. Babaria .. Plaintiff Vs Vishwas Kisan Zende & Another .. Defendants Mr. Ramesh Jain for the original plaintiff Mr. Ram Tripathi for the defendant no. 1 / applicant CORAM : R.V. MORE, J. DATE : 4th November, 2009 P.C.: 1. Heard the learned counsel for the plaintiff and defendant no. 1. 2. By order dated 6th December, 2006, Summary Suit No. 1729 of 2005 filed by the plaintiff against the defendants came to be decreed exparte. The present notice of motion is taken out by defendant no.1 for setting aside exparte decree and for restoration of suit for hearing afresh. 3. The learned counsel for defendant no. 1 made only submission that RMA nms2851-08.sxw 2 writ of summons along with plaint was not served on the defendant properly and therefore, exparte decree deserves to be set aside. He relied upon the provisions of Order V, Rule 17 of C.P.C in this regard. 4. The learned counsel for the plaintiff, on the contrary opposed the notice of motion by submitting that the writ of summons was properly served and no fault can be found in bailiff's report. 5. Having heard for the learned counsel of respective parties, I do not find any merit in the notice of motion. The Sheriff's report regarding service of writ of summons is annexed to the reply by the defendant. I have also perused the original Sheriff's report which reads as follows: "At request of Mr. Ramesh Jain & Mrs. Kusum Jain Adv. for the plaintiff, this writ of summons along with plaint were duty served by my bailiff on 12.9.2005 at about 9.30 a.m. upon Vishwas Kisan Zende-Defendant no. 1 & Ajay Shankar Pawar - Defendant no. 2 at their place of gain at Assistant Engineer, Waterworks, B.M.C, 1-2 Storeyard, Dr. E. Mozes Road, Worli - 400 018 by delivering to them duplicate copies of writ of summons along with the plaint. The said Vishwas Kisan Zende & Ajay Shankar Pawar who were RMA nms2851-08.sxw 3 pointed out to the bailiff by the plaintiff, have each accepted service but refused to sign on acknowledgment of service on this original writ of summons." 6. Relying on this report coupled with the provisions of Order V, Rule 17 of C.P.C, the learned counsel for defendant no.1 submitted that the bailiff was duty bound to affix copy of the writ of summons on the outer door or some other conspicuous part of the house and since this was not done, the service of writ of summons cannot be said to be proper. The learned counsel for the plaintiff in this regard relied upon the judgment of learned single Judge in case of M.R. Ved & Co V/s S.B. Hayeem reported in AIR (30) 1943 Bombay 340 to substantiate that service is proper. 7. The Sheriff's report discloses that the defendant accepted service of writ of summons but refused to sign on acknowledgment of service on the original writ of summons. It is true that the provisions of Order V, Rule 17 in such cases mandates on serving officer to affix copy of the summons on the outer door or some other conspicuous part of the house. However, it is the case of the plaintiff that the copy could not be affixed as the only copies of writ of summons RMA nms2851-08.sxw 4 were given to the defendants and what was having with the serving officer was only the original and therefore, in absence of availability of copies of writ of summons, the service officer could not have been expected to affix the original writ of summons on the outer door or some other conspicuous part of the house. 8. The facts before the learned single Judge in case of M.R. Ved & Co (Supra) are similar to the present case. In that case, after service of writ of summons, the defendant ran away with the same without giving acknowledgment on original writ of summons. The question before the learned single Judge was whether under above circumstances, can it said that proper service has been affected on the defendant. The learned single Judge after going through the provisions of Order V, Rule 17 held that though the provisions of Order V, Rule 17 are mandatory, the said rule assumes that the serving officer has copy with him which he can affix on conspicuous part of the defendants' residence. The learned single Judge also considered the question whether this rule is to be given effect to if the defendant by his own conduct renders it impossible for the serving officer to affix copy of writ of summons on conspicuous part RMA nms2851-08.sxw 5 of the residence of the defendant. It was ultimately held that since the defendant ran away with the copy of writ of summons which rendered impossible to the serving officer to affix it on the residence in which the defendant resides and therefore, the service has been properly effected. 9. In the present case, it is clear from the report that the defendant accepted the writ of summons, however refused to sign the acknowledgment on the original writ of summons. Since the copies of writ of summons were already given to the defendants, it was impossible for the serving officer to affix the same on the outer door or on the conspicuous part of the house of the defendant. If these facts are appreciated in light of the ratio laid down in M.R. Ved & Co (Supra), then, it cannot be said that the service was not proper. Thus, I do not find any substance in the submissions of the learned counsel for defendant no. 1 in this regard. 10.Be that as it may, the exparte decree was passed on 6th December, 2006. In pursuant of this decree, attachment was levied on the salary of the defendant no. 1 on 28th November, 2007. The amount of Rs. 33003/- is being deducted from his salary in RMA nms2851-08.sxw 6 execution of exparte decree. Inspite of this, the present notice of motion was filed on 12th August, 2008. The defendant no. 1 was aware that the amount is being deducted from his salary in pursuance of the exparte decree as long back as on 28th November, 2007, however he kept mum till August 2008. This fact speaks volume. 11.Taking totality of the facts and circumstances into consideration, I am of the view that defendant no.1 has not made out any case for setting aside exparte decree. Accordingly, notice of motion is dismissed. (R.V. MORE, J) RMA nms2851-08.sxw 7 RMA nms2851-08.sxw