The present notice of motion has been taken out by defendant
no.5 alleging that she was not aware of the suit and was not
properly served. Counsel for the defendant no.5 invited my
attention to the address of defendant no.5 shown in the plaint
which is written as “7, Gopi Kanaiya Cooperative Housing Society
Ltd, Swami Vivekanand Road, Khar, Mumbai 400052”. Counsel
submitted that though the defendant no.5 resides in Gopi Kanaiya
Cooperative Housing Society Ltd, she resides in flat no.1 and not in
flat no.7. The address mentioned in the plaint is erroneous.
Summons was also sent at this erroneous address. In paragraph no.
7 of the affidavit in support of the motion, defendant no.5 has
specifically mentioned that she resides in flat no.1 and not in flat
no.7. The remark “unclaimed” made by postman at best would
show that postman had delivered the intimation at flat no.7 but
nobody came to collect the envelope containing the summons. If
the intimation was delivered at the wrong address, it cannot be said
that defendant no.5 failed to collect the summons despite 3
intimation. In my view, the summons of the suit was not properly
served on the defendant no.5.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1854 of 2007
Citation;2012 (5)MH LJ 874
SUIT NO.1347 of 1993
M/s.Shree Varun Trading Co. ... Plaintiff
versus
M/s.Mahesh Associates and others ... Defendants
...
CORAM : D.G. KARNIK, J
DATED : 20th December2011
1. Heard learned counsel for the applicant (original defendant
no.5) and counsel for the plaintiff who opposes the motion.
2. This motion is taken out by the defendant no.5 for setting
aside of a decree dated 6 November 1998 passed in Suit No.1347 of
1993 on the ground that suit summons was not served on the
applicant.
3. The suit summons of the suit was sent to defendant nos.1 to 5 2 NMS No.1854/07
by the office of the Sheriff of Mumbai by registered post prior to
December 1997. It appears that the packets were returned unserved
with the remark “unclaimed”. An affidavit of service was filed by
the bailiff in the office of the sheriff of Mumbai on 22 December
1997 stating that the packets sent by registered post were returned
unclaimed. The court considered the returned notices to be a good
service on the defendants and decided to proceed exparte in the
absence of defendants as they had not appeared. The court then
passed a decree against defendant nos.1 to 5 in the sum of Rs.
6,00,000/ together with interest at 15% p.a.
4. The present notice of motion has been taken out by defendant
no.5 alleging that she was not aware of the suit and was not
properly served. Counsel for the defendant no.5 invited my
attention to the address of defendant no.5 shown in the plaint
which is written as “7, Gopi Kanaiya Cooperative Housing Society
Ltd, Swami Vivekanand Road, Khar, Mumbai 400052”. Counsel
submitted that though the defendant no.5 resides in Gopi Kanaiya
Cooperative Housing Society Ltd, she resides in flat no.1 and not in
flat no.7. The address mentioned in the plaint is erroneous.
Summons was also sent at this erroneous address. In paragraph no.
7 of the affidavit in support of the motion, defendant no.5 has
specifically mentioned that she resides in flat no.1 and not in flat
no.7. The remark “unclaimed” made by postman at best would
show that postman had delivered the intimation at flat no.7 but
nobody came to collect the envelope containing the summons. If
the intimation was delivered at the wrong address, it cannot be said
that defendant no.5 failed to collect the summons despite 3 NMS No.1854/07
intimation. In my view, the summons of the suit was not properly
served on the defendant no.5.
5. Order 9 Rule 13 of the Code of Civil Procedure (for short “the
Code”) provides that in any case in which a decree is passed ex
parte against the defendants, he may apply to the court by which
decree was passed for an order to set it aside; and if he satisfies the
court that the summons was not duly served, court shall make an
order for setting aside the decree against him. As I have held that
the summons was not properly served, decree is liable to be set
aside under Order 9 Rule 13 of the Code.
6. Mr.Mehta, learned counsel for the original plaintiffs submitted
that the decree in the present case was passed under Order 8 Rule
10 of the Code and therefore, it cannot be said aside under Order 9
Rule 13 of the Code. In support, he relied upon a decision of this
court in Dhanvantrai R. Joshi Vs. Satish J. Dave and others, 1998
(3) Mh.L.J. 924. In that case, a Division Bench of this court has
held that Order 9 Rule 13 of the Code does not apply to a decree
which has been passed under Rule 5 or Rule 10 of Order 8 of the
Code. In my view, the present decree is not passed under Rule 5 or
Rule 10 of Order 8 of the Code but is passed under Order 9 Rule 6
of the Code. Order 8 Rule 10 of the Code says that Where a party
from whom a written statement is required under rule 1 or rule 9
fails to present the same within the time permitted or fixed by the
court, the court shall pronounce the judgment against him. Rule 10
contemplates that the defendant is required to file the written
statement under rule 1 or rule 9. It has been held by the Supreme 4 NMS No.1854/07
Court in the case of Iridum India Telecom Ltd, Bombay. Vs. Motorola
Inc. 2004 2 Bom.C.R. 530 : 2004(1) Mh.L.J 532 that the provisions
of the Original Side Rules relating to the service of writ of summons
and filing of the written statement would prevail over Code of Civil
Procedure. Written statement is required to be filed by the
defendant within the time allowed by the Bombay High Court
(Original Side) Rules and not within the time specified in Order 8
Rule 1 of the Code. Rule 1 of Order 8 of the Code was not
applicable to the present case. Rule 10 of Order 8 of the Code was
also not applicable as time was not fixed under Order 8 Rule 1 of
the Code.
6. Even otherwise, a distinction must be drawn between a case
where the defendant does not appear in the matter at all and the
court proceeds exparte against him and a case where the defendant
appears but does not file the written statement either within the
time specified under Rule 1 or Rule 9 of Order 8 of the Code.
Order 8 Rule 10 of the Code would apply only in cases where the
defendant has appeared in the suit but has not filed the written
statement. It would not apply to a case where the defendant does
not appear at all and the court decides to proceed exparte against
him. The word “exparte” contemplates that the court proceeds in
the absence of a person. Where the defendant does not appear at
all, the court proceeds exparte against him. Order 9 Rule 6 of the
Code says that where the plaintiff appears and the defendant does
not appear when the suit is for hearing then if it is proved that the
summons was duly served, the court may make an order that the
suit be heard exparte. Thus, when the defendant does not appear 5 NMS No.1854/07
after service of a summons, the court proceeds exparte under Order
9 Rule 6 of the Code Where the court proceeds exparte against the
defendant under Order 9 Rule 6 of the Code and passes a decree,
such decree cannot be said to be a decree passed under Order 8
Rule 10 of the Code. I therefore hold that the decree in the present
case was not passed under Order 8 Rule 10 of the Code but was
passed by the court which proceeded exparte against the
defendants under Order 9 Rule 6 of the Code. This being a position,
the judgment of this court in Dhanwantrai R. Joshi & ors (supra) is
not applicable to the facts of the case.
7. Since it is proved by the applicant – defendant no.5 that the
suit summons was not served upon her, the decree is liable to be set
aside under Order 9 Rule 13 of the Code. Accordingly, exparte
decree is set aside and notice of motion is allowed in terms of prayer
clause (b) which reads as follows:
(a) That the Exparte Decree dated 6.11.1998 be
set aside and quashed against the Defendant
no.5 and the suit be restored on file and the
same be heard on merits
8. Taking into consideration the fact that the suit is old and filed
in the year 1993, hearing of the suit shall be expedited. Defendant
no.5 through her counsel waives service of writ of summons of the
suit. Defendant no.5 is directed to file written statement within 12
weeks.
(D.G.KARNIK, J)
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