:1: :1: :1: 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 PETITION NO. 421 OF 2008 Smt.Sitabai R.Wagh, Malegaon, Nashik ...Petitioner Versus Smt.Poonabai T.Kathepuri, Nashik and anr. ....Respondents ====== Mr.Sanjeev Kadam, Adv. for the petitioners. Mr.N.R.Bubna Adv. for respondent no.1. Mr.R.M.Patne, AGP for respondent no.2. CORAM: S.C.DHARMADHIKARI, J. DATED: 10TH MARCH, 2008. P.C. P.C. P.C. : : : 1. This Writ Petition is directed against an Order passed by the Lower Appellate Court refusing to condone the delay of 778 days in filing of Regular Civil Appeal. 2. The Reg.Civil Appeal was filed by the petitioner-Appellant to challenge the judgment and Decree in Reg.Civil Suit No. 161 of 2002 dated :2: :2: :2: 14.2.2005. 3. The suit proceeded ex-parte and was decreed ex-parte. It was observed by the Trial court that the Suit Notice was given on 5.9.2001, but, there was no reply thereto. Thereafter, the Trial Court has observed that the suit summons was duly served and that is how an order is passed to proceed ex-parte on 31.8.2002. 4. The petitioner-Original Defendant filed Reg.Civil Appeal but finding that there is a delay of 778 days in filing of the Appeal applied for condonation. 5. The specific case in the Application for Condonation of Delay is that the Regular Civil Suit for specific performance was filed on 3.8.2002. The Trial Court observes that the order to proceed ex-parte was passed on 31.8.2002. However, there is no service of the Writ of summons. The first time that the petitioner became aware of the Decree against her is when the Notice dated 2.8.2005 was served on her. :3: :3: :3: Thereafter, she proceeded to take inspection of the record of the suit and discovered that the endorsement thereon is that the Suit summons and Notice has been served on her son. The thumb impression of the son is sought to be relied upon, inasmuch as, all that is written below the thumb impression is the name of her son. She states that she is an illiterate lady residing at the address mentioned in the suit and that there was no occasion for her son to accept any summons. She denied that the summons were duly served. 6. It is in such circumstances, that the Application for condonation of delay has been filed. 7. After the Notice was duly issued to the Plaintiff-Original Respondent, Mr.Bubna has appeared and urged that the case is fully covered by the Explanation below Order IX Rule 13, inasmuch as, the suit summons has been served and any irregularity in the service thereof cannot be a ground to set aside the ex-parte Decree. Mr.Bubna, does not dispute that the suit was filed on 3.8.2002 and the summons was served on 3.9.2002. The suit has been decreed on 14.2.2005. :4: :4: :4: For three years, no steps have been taken, is the submission. Thereafter, the Execution Application bearing No.66 of 2005 was filed and a Notice therein was issued on 2.8.2005. Even thereafter, nothing was done and ultimately the Application for Condonation of Delay came to be filed alongwith the Memo of Appeal on 20.06.2007. 8. I have perused the petition and the Annexures thereto alongwith the impugned judgments. I have heard both sides. The suit proceeds on the basis that the petitioner-Original Defendant is doing house hold work and residing at Siddharth Nagar Wadi, House No.79, Islamabad, Malegaon, District-Nashik. Once this is the address which has been mentioned by the Original Plaintiff and that is the address mentioned in the title of the judgment as well, then, there has to be service of the suit summons on this address. In the record, there is nothing to show that the suit summons was served on this address. That apart in para-4 of the impugned judgment and order, it has been stated that the order to proceed ex-parte with the suit was passed on 31.8.2002. The Notice prior to Suit sent on :5: :5: :5: 5.9.2001. If the suit is filed in the Trial court on 3.8.2002 and the decision to proceed ex-parte is dated 31.8.2002 but the suit summons is served on 3.9.2002, then one fails to reconcile all these dates and aspects. These would clearly go to show that there is a doubt about the service. Further, Mr.Kadam had urged before me that the Defendant was earlier serving in Malegaon Municipal Council and therefore residing at Sidharthnagar. But she has retired from service and shifted her residence to PanchaSheel Nagar. There is no proof of any service being effected at this address. Further, it is undisputed that the petitioner cannot read and write. Even the Application for Condonation of Delay, bears her thumb impression. It is in such circumstances that I fail to understand as to how the lower Appellate Court concludes that the suit summons is properly served. The reasoning in paras 8 and 9 of the impugned judgment demonstrates that the Learned Judge is wholly ignorant of the above mentioned facts and the liberal principles. Each day,s delay is not required to be explained. Further, how the learned Judge holds that the petitioner is negligent and indolent is not clear to me at all. The Learned Judge :6: :6: :6: has gone by mere prejudice and agitated at the fact that petitioner has allegedly sold the land during the pendency of the Execution Application. However, the Application is not dismissed only on the ground of lack of bonafides. Thus, there is no reason to refuse the Application for condonation of delay. There are larger matters at stake. One has to be satisfied that there is sufficient cause and that is paramount. In the present case, sufficient cause was made out for not being able to appear and defend the suit. The suit summons is not accepted by the petitioner lady and admittedly it is served on her son.The son has put his thumb impression according to the Original Plaintiff-Decree Holder. However, there is no identification below this thumb impression, is the grievance. Further, before the court decided to proceed ex-parte on 31.8.2002 whether it was really satisfied with regard to the service of the summons is not clear to me at all. The dates on which the suit summons came to be issued and served are not appearing in the judgments of the courts below. In such circumstances, the delay should have been condoned and if at all the Learned Judge was of the opinion that the :7: :7: :7: respondent-plaintiff suffers because of the said delay, then, appropriate directions with regard to payment of costs could have been issued. Not condoning the delay has resulted in grave miscarriage of justice. There is an error apparent on the face of the record, inasmuch as, the Learned Judge has failed to note the above facts. In such circumstances, the order under challenge cannot be sustained. It is accordingly quashed and set aside. The delay is condoned upon the petitioners paying costs quantified at Rs.1500/- to be paid within a period of 4 weeks form today to the original Plaintiff-Respondent, in the lower Appellate Court. Upon costs being paid, the lower Appellate court to number the Appeal and proceed with it on merits and in accordance with law. Petition allowed in these terms. No costs. sd/- *********