1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL REVISION APPLICATION NO.19 OF 2010 1. M/s. Fernandes Realtors Private Ltd, A Company duly incorporated under the Companies' Act, 1956 and having its office at D.B. Marg,Panaji, Goa and herein represented by its Managing Director, Mr. Lume Joao Vincent Fernandes, son of Romeo Fernandes, major or age, married, Indian National and residing at Panaji Taluka Tiswadi, Goa. 2. Mr. Anselmo D'Souza, son of Mariano D'Souza, Major of age, Married, Indian Naitonal and residing at 64/1, Babolim, Taluka Tiswadi, Goa. ... Applicants V e r s u s 1. M/s. Goan Wonderland Properties Private Limited, A Company duly incorporated under the Companies Act, 1956 and having its office at D.B. Marg, Panaji, Goa through its Director, Mr. Eric Sequeira, major of age, married Indian National, Resident of B-7. Leonora Apartments, St. Mary”s Colony, Near Esperanca Clinic, Miramar, Taluka Tiswadi Goa; 2 2. Mr. Eric Sequeira, major of age, married, Indian National, resident of B-7, Leonora Apartments, St. Mary's Colony. Near Esperanca Clinic, Miramar, Taluka Tiswadi Goa; 3. Mr. Gautam Patel, son of Ramanbhai Patel, major of age, married, Indian National, Resident of B-7, Leonora Apartments, St. Mary's Colony, Near Esperanca Clinic, Miramar, Taluka Tiswadi Goa; 4. Mrs. Mala Gautam Patel, major of age, married, Indian National, Resident of B-7, Leonora Apartments, St. Mary's Colony, Near Esperanca Clinic, Miramar, Taluka Tiswadi Goa. .... Respondents Mr. Raunaq Rao, Advocate for the Petitioner. Mr. Surendra Dessai, Senior Advocate with Mr. Pavitran A.V., Advocate for the Respondent. Coram: A. P.Lavande, J. Reserved on 15/09/2010. Pronounced on: 22 /09/2010. ORDER: By this revision application, the applicants take 3 exception to the order dated 17/07/2010 passed by the Civil Judge, Senior Division, Panaji allowing the Civil Miscellaneous Application No.8/2010/B filed in Special Civil Suit no.44/00/2008/B by which the application filed by the defendants nos. 3 and 4 under Order 39 Rule 13 of Code of Civil Procedure to set aside ex parte decree dated 30.12.2008 filed in Special Civil Suit no.44/2008/B has been allowed. 2. The applicants filed the above suit against the respondents/defendants seeking several reliefs. 3. An ex -parte decree came to be passed on 30.12.2008 against the defendant nos. 3 and 4 who were served on the address mentioned in the cause title of the plaint which reads thus: “R/o B-7,Leonora Apartments, St. Mary's Colony, near Esperanca Clinic, Miramar,Goa. 4 4. According to the defendants nos. 3 and 4, the decree obtained was collusive on account of collusion between the plaintiffs and defendants nos.1 and 2 and that the defendants nos.3 and 4 were not served at their residential addresses mentioned in the agreement dated 28.11.2006 which disclosed that the address of defendants nos. 3 and 4 was “R/O Abijit Building, built on plot no.B-9 of Kapole Cooperative Housing Society Limited at Junction of 11 and V.M. Road, J.V.P.D Scheme, Juhu, Mumbai – 400 049. 5. According to the defendants 3 and 4, only upon service of summons in Special Civil Suit No. 51/2009/A that they came to know about the institution of Civil Suit no.44/2008/B and the decree passed therein. Thereafter, they filed an application seeking to set aside ex- parte decree. 5 6. The application was opposed by the plaintiffs on several grounds. 7. By the impugned order, the trial court has allowed the application with costs and consequently the ex -parte judgment and decree dated 30.12.2008 has been set aside. There is no dispute that thereafter the defendant nos. 3 and 4 have already filed their written statement. 8. Mr. Rao, learned counsel appearing for the applicants/plaintiffs assailed the impugned order on the following grounds: i) The trial Court ought to have held an inquiry in terms of Chapter XI of the Civil Manual, by asking the parties to lead oral evidence since allegation of fraud and collusion was made by defendant nos. 3 and 4. ii) Defendant nos. 3 and 4 were properly served on the 6 address mentioned in the cause title of the plaint where they were residing. iii) Even if there was irregularity in the service of summons on defendant nos. 3 and 4, the same would not justify setting aside ex- parte decree passed by the trial Court. iv) The record discloses that defendant no.2 had sent a copy of the plaint of the suit by registered post Acknowledgment Due (A/D) to defendant nos. 3 and 4, which was refused by defendant nos. 3 and 4 and, therefore, defendant nos. 3 and 4 are deemed to have knowledge of the institution of the suit against them. v) In any event, the trial Court ought to have put defendant nos. 3 and 4 on terms by asking them to deposit a substantial amount in the court while setting aside the ex- parte decree. In support of his submissions, learned counsel 7 relied upon the following decision: Messrs. Shamsunder Rajkumar Vs. Messrs. Bharat Oil Mills, Nagpur,AIR 1964 Bombay 38. 9. Per contra, Mr. Dessai learned Senior counsel appearing for the respondents/defendant nos. 3 and 4 submitted that the agreement dated 28.11.2006 discloses that the address of defendant nos. 3 and 4 was R/O Abijit Building, built on plot no.B-9 of Kapole Cooperative Housing Society Limited at Junction of 11 and V.M. Road, J.V.P.D Scheme, Juhu, Mumbai – 400 049 and as such, the service of summons on defendants nos. 3 and 4 at the above referred address at Panaji, was an attempt only to get an ex-parte decree against the defendant nos. 3 and 4. Mr. Dessai further submitted that the record discloses that summonses addressed to defendant nos. 3 and 4 were served on the entry clerk of defendant no.1 and as such, there was no proper service of summons, in 8 terms of Order V of Code of Civil Procedure. Mr. Dessai further submitted that since the defendant nos. 3 and 4 were not served on their proper addresses, the trial Court was justified in setting aside the ex-parte decree passed against them. Learned Senior Counsel further submitted that this Court should be very slow in entertaining the revision application against the impugned order. He further submitted that the trial Court correctly assessed the factual and legal position and not put the defendant nos. 3 and 4 to terms to deposit any amount and, therefore, the revision deserves to be dismissed. 10. Learned Senior Counsel placed reliance upon the following decisions: i) Kalpataru Vidya Samasthe (R) and anr. Vs. S.B. Gupta and anr. (2005) 7 Supreme Court Cases 524. ii ) Harshavardhan Chokkani Vs. Bhupendra N. 9 Patel and ors. (2202) 3 Supreme Court Cases 626. 11. In rejoinder, Mr. Rao submitted that the revision is maintainable by relying upon the decision of the Apex Court reported in Vidyodaya Trust and ors. Vs. Mohan Prasad R and ors. (2006) 7 Supreme Court Cases 452. 12. I have considered the rival submissions and perused the record and the judgments relied upon. 13. In so far as maintainability of the revision application is concerned, having regard to the nature of the order passed and having considered the predicates of Section 115 of C.P.C. I find that the revision is maintainable against the impugned order since in the event the impugned order is set aside, the proceedings for setting aside the ex-parte decree would come to an end. 10 However, as held in the case of Kalpataru (supra), relied upon by Mr. Dessai, this Court in its revisional jurisdiction, cannot interfere with the findings of fact recorded by the Courts below and re-appreciate the evidence unless the findings recorded by the lower Court are perverse or disclose non-application of mind. 14. Perusal of the impugned order discloses that the trial court has come to the conclusion that the record disclosed that the defendant nos. 3 and 4 were residents of Mumbai at the address mentioned above. The service of summons effected on them at Miramar address and that too on the entry clerk of defendant no.1 was not valid service of summons. I do not find any illegality in the said finding. The record discloses that the defendant nos. 3 and 4 were residents of Mumbai and as such, they could not have been served at the address of the Company i.e respondent no.1 and that too on the entry clerk of the 11 company. 15. In so far as the argument of Mr. Rao that the trial Court ought to have asked the parties to lead evidence since allegation of fraud and collusion was made in the application under Order IX Rule 13 in terms of Chapter 19 of C.P.C is concerned, I do not find any merit therein having regard to the factual background of the case. The record discloses that defendant nos. 3 and 4 were not served at their residential address which was to the knowledge of the plaintiff and the service of summons on defendant nos. 3 and 4 on the address of the company was not proper service in terms of Order V of C.P.C., as held by the learned trial Court. Whether the service of summons on defendant nos. 3 and 4 was correctly effected or not could have been decided by the trial Court on the basis of affidavits filed and documents produced and it was not necessary for the trial Court to give findings on 12 fraud and collusion. Therefore, the argument of Mr. Rao that the impugned order is vitiated since the parties were not asked to lead oral evidence is concerned, has no merit. 16. In so far as the argument of Mr. Rao that since defendant no.2 had sent a copy of the plaint received by defendant no.1 on behalf of defendants 3 and 4 through registered post and the same was refused and therefore at the most there is irregularity in service is concerned, I am unable to accept the said submission. In a suit, the defendant is entitled to be served in accordance with the procedure laid down in Code of Civil Procedure. The defendants 3 and 4 were not bound to accept every communication sent by defendant no.2 which was addressed to defendants 3 and 4 by the Court. The defendants 3 and 4 could not have been attributed knowledge of filing of suit against them. Therefore, the argument of Mr. Rao that the defendants 3 and 4 are 13 deemed to have knowledge of filing of the suit by the applicants/plaintiffs is concerned has no merit. 17. In so far as the argument of Mr. Rao that defendant nos.3 and 4 ought to have put to terms by the trial Court by directing them to deposit in the court substantial amount of the decretal amount is concerned, I do not find any merit therein. The trial Court after considering the factual background thought it fit to set aside the ex-parte decree against defendant nos. 3 and 4. It cannot be said that the trial court has exercised jurisdiction vested in it illegally. In my opinion, it cannot be said that the impugned order has occasioned failure of justice as by the impugned order defendant nos. 3 and 4 have been permitted to contest the suit on merits, which they have already done by filing their written statement. 18. For the reasons aforesaid, I do not find any jurisdictional error having been committed while passing 14 the impugned order. Consequently, the revision stands dismissed with no order as to costs. A. P. Lavande, J. Ap/-