ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6460 OF 2008 PETITION NO. 6460 OF 2008 PETITION NO. 6460 OF 2008 Shri Rajaram Baburao Kakdekar & Ors. ...Petitioners. Vs. Smt.Vranda G.Pai. ...Respondent. ALONG ALONG ALONG WITH WITH WITH WRIT WRIT WRIT PETITION NO.6466 OF 2008 PETITION NO.6466 OF 2008 PETITION NO.6466 OF 2008 Shri Rajaram Baburao Kakdekar & Ors. ...Petitioners. Vs. Smt.Vranda G.Pai. ...Respondent. Smt.Swati P.Gautam for the Petitioners. Mr.V.Y.Sanglikar for Respondent No.1. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 18th November, 2008. : 18th November, 2008. : 18th November, 2008. P.C.:- P.C.:- P.C.:- The Petitioners-Tenants/brothers have challenged the order of Courts below whereby their application under Order 9, Rule 13 of the Code of Civil Procedure (for short, "CPC") to set aside the ex-parte decree dated 15th January, 2005 is rejected, by holding that the Petitioners-Defendants were duly served with the Writ of summons, still they failed to ( 2 ) appear and therefore, ex-parte decree. 2. As averred, on 13/01/2003, the T.E. & R. Suit No.53/63 of 2003 by the Respondent against the Petitioners. 3. On 07/10/2004, the suit came to be proceeded ex-parte against the Petitioners and the evidence of the Respondent came to be recorded. 4. On 15/01/2005, the suit filed by the Respondent herein came to be decreed ex parte against the Petitioners. 5. On 05/03/2005, the notice before execution No.69 of 2005 was filed by the Respondent herein and that is the first time the Petitioners came to know about the decree passed against them. 6. On 08/04/2005, the Petitioners preferred the application for setting aside ex-parte decree being Misc. Notice 118 of 2005. 7. On 20/07/2005, Respondent filed affidavit-in-reply to the said application for setting aside ex-parte ( 3 ) decree. 8. On 19/08/2005, the application for setting aside ex-parte decree was rejected. 9. In the month of September, 2005, the appeal being Appeal No.19 of 2006 came to be filed by the Petitioners herein challenging the order of rejection of the application for setting aside ex-parte. 10. On 13/08/2008, the said appeal preferred by the Petitioners came to be dismissed. 11. The ex-parte decree was passed on 15th January, 2005. They sought to set aside the same on the ground that they were not duly served as writ of summons. The Petitioners-Defendants are real brothers and occupying the suit premises along with their family members. The Courts below after verifying the record to ascertain the due service of summons including the bailiff report dated 19/08/2003, find that the bailiff along with the Plaintiff had been to the residential room of Defendant No.3 on 19/08/2003 at 11.35 a.m. to serve the summons and copy of plaint, but Defendant No.3 was not found. The brother of Defendant No.3 ( 4 ) viz. Shantaram Kakedkar was in the premises who on enquiry informed that Defendant No.3 has gone out. Report dated 22/08/2003 and 30/08/2003 shows that bailiff with the Plaintiff’s husband had been to serve summons with Plaint to the residence of Defendant Nos. 1 and 2 at 9.05 a.m. and 7.45 a.m. respectively, but they were not found and wife of Defendant No.1 Sau. Mangala and Sau. Chhaya, wife of Defendant No.2 have informed that they have gone to work. Therefore, on those two dates the summons were returned unserved. In view of this, on request of Plaintiff the Court has ordered the substituted service by pasting at dwelling house of Defendants and also by R.P.A.D. On 07/10/2003, the bailiff along with Plaintiff’s brother-in-law went to the premises of Defendant No.1, but he was not found. His wife Mangala was present. Therefore, summons and copy of plaint was pasted on outer door of the residence of Defendant No.1. Defendant No.2 was not found, but his brother-in-law Laxman Mhaskar was present and hence summons and copy of plaint was pasted on outer door of his room. Defendant No.3 on the above date, though he was present in the room, but he declined to accept the service of summons by saying that his name is Ramakant Baburao kakedkar and not Ramesh Baburao Kakedkar as ( 5 ) shown in summons. Hence, bailiff returned back without serving Defendant No.3. 12. On 25/11/2003, the Plaintiff’s representative took the bailiff to the premises of Defendant No.3, but it was found locked. So, summons and copy of plaint was pasted on outer door of room of Defendant No.3. Three summons and three copies of plaints were pasted in the premises on 15/06/2004 in the presence of Plaintiff’s representative. All the bailiff’s reports are duly verified on affidavit by bailiff. In view of this, the bailiff has affixed the copy of summons and plaints on the outer doors of rooms of the Defendants in which they ordinarily resides and then returned the original summons to the Court. The said bailiff reports are unless proved otherwise presume to be correct. The submission, therefore, that there was non-compliance of Order 5 of C.P.C. has no force. The Plaintiffs have submitted copy of marriage invitation card pertaining to the marriage of Defendant No.1 Rajaram Baburao Kakedkar which shows name of Defendant No.3 as Ramesh, as shown in the plaint and not Ramakant as contended. The avoidance of service of summons by Defendant No.3 on this ground shows the intention to refuse to accept the notice. ( 6 ) Apart from that, the summons were duly affixed as observed above. Therefore, the Petitioners-Defendants have knowledge of eviction proceedings initiated by the landlord, being legal heirs and legal representatives of the deceased original tenant Baburao Kakedkar. As they avoided the service of summons and chooses not to appear though served. 13. Importantly, none of the Petitioners- Defendants entered into the witness box to substantiate their contention. The whole intention, therefore, was to delay the eviction proceeding. In the present case, as per the bailiff’s report and affidavit they served the summons with copy of the plaint. The Respondents-Plaintiffs tried to serve the suit summons by R.P.A.D. & U.P.C. The Registered Postal packets returned with Postal endorsement "Unclaimed". The UPC packets were not returned to the Court. The necessary postal receipts and returned postal packets are on record. Unless shown, and if name and address and description of the premises if not in dispute, the service of summons by R.P.A.D. and U.P.C is also presumed to be valid. There is no dispute about the addresses of the Petitioners-Defendants. One of the Petitioners-Defendants refused only because the first ( 7 ) name is incorrect. There is no dispute about the address. In this background there is sufficient material, as observed by both the courts that there were no irregularity or compliance of order 5 of the C.P.C. The summons were duly served. In this background, considering the conduct of the parties, I am also of the view that there is no case made out to set aside the ex-parte decree passed on 15th January, 2005. Therefore, there is no illegality by the Courts below in refusing to set aside the ex-parte decree. The order as passed by Courts below is well within a framework of law and the record. The contention that the procedure ought not to have been examined on oath as per order 5 Rule 19 of the C.P.C., in the facts and circumstances of the case and in view of the various reports along with an affidavit filed by the bailiff, in any way could not have changed the position with regard to the service of summons as done in the present case, even as it was also with R.P.A.D. and U.P.C. as recorded above. 14. Taking all this into account, therefore, both the petitions are dismissed. 15. At the request of the learned counsel appearing ( 8 ) for the Petitioners, the effect and operation of the order is stayed for four weeks from today on the condition that the Petitioners shall not create any third party right and interest in the property. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)