1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3149 OF 2008 Lalji Shamji Thakkar .. Petitioner versus Damodar Shripathi Bhagal .. Respondent Mr.S.P.Kanuga for the petitioner. Mr.Parmar a/w Mr.Dilip Bodake for respondent No.1. CORAM : A.S.OKA, J. DATE : 5th October 2009. P.C: . Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. Record and proceedings of the suit was called for and the same has been perused. 2. By this writ petition under Article 227 of the Constitution of India, the petitioner who is the original plaintiff has challenged the order dated 15th November 2006 by which the learned Judge of the Small Causes Court has set aside the ex-parte decree passed in his favour. The challenge is to the order of the Appellate Bench of the said Court by which the said order has been confirmed. 3. The learned counsel appearing for the petitioner submitted that the record shows that suit summons has been duly served. Inviting my attention to the averments made in the application for setting aside ex-parte decree 2 and affidavit in reply of the petitioner, he submitted that the ground made out in the application for setting aside ex-parte decree is proved to be false. He submitted that as the said ground is found to be incorrect, if not false, the Court could not have set aside the ex-parte decree. The learned counsel appearing for the respondent supported the impugned judgment and order. 4. The ex-parte decree is under the provisions of the Maharashtra Rent Control Act, 1999 for possession of the suit shop. In the application made by the respondent he has come out with a case that he is the tenant since 1973. He stated that the suit premises have been taken for the benefit of his Hindu undivided family and the same is being used for preparing photoframes and for storing the same. In the application he pleaded that on 9th March 2006 when he came to the suit premises he found that a security man was standing in the front of the suit premises. He found that his name board was removed and the petitioner had put in is own lock on the suit premises. He stated that after making enquiries he came to know that ex- parte decree for possession was passed. In paragraph 8 of the application, he has stated that he was never served with the writ of summons. In paragraph 9 of the application he has stated on oath that he never refused to accept service of summons either personally or through post. He stated that the date on which the alleged writ of summons sent by registered post A.D was stated to be refused, he was at his native place. There is a reply filed to the said application by the petitioner. In the reply it is stated that three attempts were made to serve suit summons at the address of the suit 3 premises and subsequently on the basis of the order of the trial Court, the summons was ordered to be served by registered post A.D. It is pointed out that notice of the injunction notice taken out by the petitioner was sought to be served at the address of the suit premises and the said notice was returned unserved with the remark “refused”. He denied the averments made in the application. 5. The learned trial Judge in the impugned order has referred to three reports of the bailiff dated 10th August 2004, 16th August 2004 and 23rd October 2004 wherein it is mentioned that the respondent was not found at his new address. The learned Judge observed that the petitioner ought to have applied for substituted service. The learned Judge observed that to prove that the respondent has not accepted the notice by registered post A.D, the postman ought to have been examined and therefore the remark “refused” cannot relied upon. 6. The Appellate Court noticed that the first remark on the envelope of the notice sent by registered post A.D made on 10th October 2004 is “not found” and the remark of refusal is made on 18th October 2004. The learned Judges of the Appellate Court observed that while effecting service of notice of interim application, the petitioner sought permission to serve the notice to the respondent at the address of the suit premises. The learned Judges have referred to remark put by the bailiff on 06th August 2004 in the service 4 report stating that the person found in the suit premises informed that the respondent had gone to his native place. In context to this factual aspects, the Appellate Court observed that a chance was taken by the petitioner by taking an order for serving summons by registered post A.D at the address of the suit premises. The Appeal Bench has dealt with the remark “refused” on the summons sent through registered post A.D. The learned Judges observed that the refusal by the petitioner himself is not demonstrated in the light of the stand taken that the petitioner was at native place of the relevant time. 7. The learned counsel appearing for the petitioner has placed reliance on the decision of the Apex Court in the case of Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana (AIR 1976 Supreme Court 869) and submitted that in every case where remark of the postman is “refused” it is not necessary to examine the postman who tried to effect service. 8. In the present case, the Courts below in the light of the statement on oath of the respondent that he has not refused to accept service through post, have observed that the petitioner ought to have examined the postman. The Appellate Court noted that when notice of injunction application was sought to be served, the bailiff reported that on 16th August 2004 the person in the suit premises informed him that the respondent was at the native place. The Courts below have recorded a concurrent finding that on the basis of the endorsement “refused” a presumption of service 5 under section 114 of the Indian Evidence Act, 1872 in this case cannot be drawn. That is how non-examination of the postman becomes relevant. Therefore, considering the facts of the case, the Courts below came to the conclusion that in the present case examination of the postman was necessary. 9. Considering the aforesaid findings recorded by the Courts below, no interference is called for in the power of superintendence under the Article 227 of the Constitution of India with the discretionary order passed by the trial Court and confirmed by the Appellate Court of setting aside the ex-parte decree for possession of a shop premises. Accordingly, writ petition is rejected. (A.S.OKA,J)