1 WP No.6575/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.6575 of 2010 Manju N. Gupta ... Petitioner versus Meenakshi Ashok Patil & ors. ... Respondents ... Mr. Robin Jaisingani i/b Rakesh Pandey i/b Ashwin Ankhad & Associates for the petitioner. CORAM : D.G. KARNIK, J. DATED : 18th August 2010 P.C. 1. Leave to amend. Amendment shall be carried out forthwith. 2. By this petition, petitioner (original defendant no.4) seeks to challenge the order dated 7 August 2010 passed by the learned Judge, City Civil Court, Gr. Bombay holding that writ of summons has been properly served on original defendant nos.1 to 3 to the suit. Petitioner has also prayed for transfer of the suit from the concerned Judge of the City Civil Court to another Judge of the same Court. 3. As regards the prayer for transfer, petitioner has an alternate efficacious remedy u/s.24 of the Code of Civil Procedure. I therefore 2 WP No.6575/10 decline to consider the prayer for transfer in exercise of a discretionary jurisdiction under Article 227 of the Constitution of India. 4. As regards the service of summons on defendant nos.1 to 3, learned counsel for the petitioner submitted that when the hearing of the suit commenced there was no evidence before the Court of the service of writ of summons on defendant nos.1 to 3. Defendant no.4 (petitioner herein) therefore pointed out this fact to the learned Judge on or about 7 August 2010. Thereupon the Court asked the learned counsel for the original plaintiff to point out service of writ of summons on the defendant nos. 1 to 3. Counsel for the plaintiff then produced the original writ of summons with the bailiff’s endorsement regarding the service of writ of summons on defendant nos.1 to 3 as well as defendant no.5. Advocate for the plaintiff also explained that the writ of summons with the bailiff’s report remained to be filed in the court through oversight. The Court accepted the statement and took the original writ of service of summons as well as bailiff’s report on record and after considering same held that the defendant nos.1 to 3 were properly served. I find no error, much less an error requiring interference under Article 227 of the Constitution of India, in the order of the learned Judge of the City Civil Court. 5. Counsel for the petitioner (defendant no.4) submitted that the bailiff’s report is not in compliance under Rule 63 of the Bombay City Civil Court Rules. He further submitted that in fact, report of the bailiff is really not submitted/made by the bailiff and should not have been accepted. The bailiff’s report is purportingly signed by the bailiff. It may be noted that defendant nos.4 and 5 are jointly represented by a 3 WP No.6575/10 common advocate and who has filed common vakalatnama in the trial court. The very bailiff’s report about the service on defendant nos.1 to 3 also contains a report regarding the service of writ of summons on defendant no.5. It also bears the signature of defendant no.5 which is not disputed. It is not the case of the petitioner (defendant no.4) that defendant no.5 who has filed joint vakalatnama with him that defendant no.5 had not received the writ of summons. Therefore, the contention that the bailiff’s report is a fake and is not made by the bailiff cannot be accepted. 6. It is also worth noting that defendant nos.1 to 3 have not come forward to challenge the service on them. It is the defendant no.4 who is contending that defendant nos.1 to 3 have not been properly served. In my view, the contention is raised merely with a view to delay the hearing of the suit which has been expedited by the Hon’ble Supreme Court. 7. Order 9 Rule 13 provides that where a decree is passed against a defendant ex-parte, he may apply for setting aside a decree interalia on the ground that summons was not duly served on him. The defendant nos.1 to 3 would have a remedy in case it is their contention that the writ of summons has not been served on them. Reference may also be made to the second proviso to Order 9 Rule 13 which reads: Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had 4 WP No.6575/10 notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.” 8. Any irregularity in the service of summons is not a ground for setting aside of ex-parte decree if the defendant has a notice of the suit. Any irregularity in service arising out of not strictly following Rule 63 of the Bombay City Civil Court Rules would not therefore affect the validity of the service. There is no merit in the writ petition which is hereby rejected. (D.G. KARNIK,J.)