: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1827 OF 2008 WITH CIVIL APPLICATION NO.4805 OF 2008 Shivkumar S. Daga ....Appellant V/s. Dhirendra L. Joshi & Ors. ....Respondents Mr.A.B. Tajane with Mr.R.B. Jagtap for the Appellant. Mr.Uday Warunjikar for Respondent No.2. CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATED : 24TH APRIL, 2009. P.C. : 1. Heard Mr.Tajane with Mr.Jagtap, the learned counsel for the Appellant/Plaintiff. Mr.Warunjikar appears for Respondent No.2. Respondent No.1 has been served by the advocate’s notice and the affidavit to that effect has been placed on record, whereas Respondent No.3 has been served by publication of newspaper notice. 2. This appeal filed under Section 96 of the Code of Civil Procedure arises from the decree dated 29.2.2008 passed by the learned Joint Civil Judge Senior Division, Pune partly allowing Special Civil Suit No.1679 of 2006 which was filed for specific : 2 : performance of the agreement i.e. the M.O.U. dated 2.1.2006. By the impugned decree, the prayer for specific performance of the agreement has been rejected and the suit has been allowed only to the extent of refund of the consideration of Rs.26,50,000/- with interest at the rate of 6% p.a. from the date of the suit till its realization as an earnest amount. The Plaintiff is not satisfied with the said decree. 3. We have perused the R. & P. which was called for and it is clear that the suit proceeded ex-parte against Defendant Nos.2 and 3 (present Respondent Nos.2 and 3). The suit property is the land admeasuring 1-H and 5.1-R located in survey No.186/1-B/1 of village Hinjwadi, Taluka Mulshi, District Pune. As per the Plaintiff, the suit property was jointly owned by all the three Defendants in equal shares of 1/3rd each and Defendant No.1 on his behalf and on behalf of Defendant Nos.2 and 3 as their constituted attorney signed the M.O.U. on 2.1.2006 so as to transfer the suit land in favour of the Plaintiff for a consideration of Rs.1,15,00,000/-. The Plaintiff claims to have paid a sum of Rs.26,50,000/- towards the sale transaction. We are informed by Mr.Warunjikar that Defendant No.3 surrendered his 1/3rd undivided share from the suit : 3 : property in favour of Defendant No.2 and the surrender deed has been registered on 2.5.2006. As per the said document, Defendant No.3 has surrendered his share in favour of Defendant No.2 for a consideration of Rs.24,00,000/-. We are also informed across the bar that Defendant No.1 has already compromised with the Plaintiff in respect of his share to the extent of 1/3rd share in the suit property. Thus the dispute that remains is with regard to the remaining 2/3rd share in the suit property and of which Defendant No.2 claims to be the exclusive owner. 4. From the R. & P., it has been noticed that Defendant Nos.2 and 3 were issued summons, Defendant No.3 has been served in person on 18.5.2007 and he did not cause his appearance so as to contest the suit. So far as Defendant No.2 is concerned, on record there is the bailiff’s report which states that the bailiff met Shri Wasuji Sugnani, the neighbour who informed the bailiff that Defendant No.2 was not residing at the given address during the last few years. The bailiff’s report further states that the summons was pasted on the door of the given address. Based on the bailiff’s report, the Plaintiff submitted an application (Exhibit-30) before the trial Court and prayed for an order to the effect that Defendant No.2 was properly served. This application has been : 4 : allowed by a cryptic order. On record, we do not find any panchanama to the effect that the bailiff went to serve Defendant no.2 at the given address, his house was locked and in the presence of two witnesses the summons copy was pasted on the door of the house of Defendant No.2. In our opinion, this enquiry was required to be done by the trial Court before the application (Exhibit-30) was allowed. 5. Mr.Warunjikar, the learned counsel for Defendant No.2 submitted before us that Defendant No.2 had no notice and therefore, he could not cause his appearance. Prima-facie the record supports these contentions. The learned counsel for the parties therefore conceded before us that the ends of justice would squarely be met if the suit is remanded for a de-novo trial. Mr.Warunjikar submitted that Defendant No.2 will cause his appearance before the trial Court on a given date and the learned advocate for the Plaintiff will take due steps to serve Defendant Nos.1 and 3 if so advised. Both the parties also agree that the suit on remand should be decided within a fixed period and we find that the request so made is just and fair. 6. Hence, we allow this appeal partly, quash and set-aside the impugned judgment and order, rendered by : 5 : the learned Joint Civil Judge (S.D.) Pune. Special Civil Suit No.1679 of 2006 is hereby restored to the file of the said Court and remanded for a de-novo trial. The parties to appear before the trial Court on 2.5.2009. We have noted the undertaking of Mr.Warunjikar that Defendant No.2 will appear before the trial Court on 2.5.2009 at 11.00 a.m. On remand, the suit is directed to be heard and decided as expeditiously as possible and preferably by 31.10.2009. We make it clear that we have not dealt with the merits of the claims and counter-claims and all the issues are left open to be decided by the trial Court. 7. R. & P. be sent forthwith to the trial Court. 8. The Civil Application does not survive. (S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)