A suit cannot be allowed to be filed against unknown heirs of a deceased Defendant because personal service cannot be effected on them. Likewise, summons cannot be affected on a Defendant whose address is not known. If no service can be affected, obviously the Defendants cannot defend the action. In such a situation substituted service can only be a farce. If a suit cannot be filed against unknown heirs as held by this Court in the case of Donald Gonsalves v. Penha de Franca Youth Club(supra) and Ors. decisions cited herein above, a suit which is filed against a Defendant with no address given to locate and serve summons on him, is also not maintainable.
IN THE HIGH COURT OF BOMBAY AT GOA
Second Appeal No. 30 of 2000
Decided On: 17.03.2010
Mr. Shrikant Shambu Volvoikar Vs. Mr. Narendra Pandu Chatim,
Hon'ble Judges/Coram:
N.A. Britto, J.
Citation: 2010(4) Bom CR 336
1. This is a Second Appeal. It was admitted on 21-7-2000 on the following substantial questions of law:
1. Whether a suit can be filed against any unknown heirs of any party?
2. On the facts and circumstances of the case whether the learned Additional District Judge was bound to dismiss the suit?
2. The answer to the first question is in the negative and to the second question is in the affirmative. Both the said questions can be taken up together. Some facts are required to be stated to answer the said two substantial questions of law.
3. The dispute is regarding property surveyed under Nos. 5/4 and 5/1 of Village Gaolim Moula in Tiswadi Taluka. The survey records showed the name of "Mrs. Mira Pinto" in the Occupant's column and that of the present Appellant in the Tenant's column. The name of one Narayan B. Shirodkar was shown in Tenants column of Survey No. 5/4 along with that of Appellant. It appears that the Respondent Nos. 1 and 2(Plaintiffs in R.C.S. No. 156/1995) had a mortgage in their favour of a property described under No. 7987 constituted by "Lourdes Raquel Milagrina Pinto of Sangolda". The said Respondents as Plaintiffs filed the said Civil Suit against two Defendants, inter alia, for declaration that they were owners in possession of the suit property. Defendant No. 1 was described as "unknown heirs of late Lourdes Raquel Milagrina Pinto also known as Raquel Milagrina Pinto who was from Sangolda, Bardez, Goa, now residing at unknown place". Defendant No. 2 was described as "Mrs. Mira Pinto, residing at unknown place".
4. As can be seen from the judgment of trial Court both were served by publication and were ordered to proceed ex-parte. The records do not show that either of the Defendants were served by ordinary mode before proceeding to effect substituted service. However, the fact remains that the learned trial Court decreed the suit by a judgment/Decree dated 2-7-1998, and in doing so the learned trial Court, not only declared that the Plaintiffs were owners in possession of the suit property but also directed the deletion of the name of the said Defendant No. 2 from Survey Nos. 5/1 and 5/4 and also the name of Appellant i.e. Shrikant Shambu Volvoikar.
5. The Appellant being aggrieved with the judgment/Decree dated 2-7-1998 preferred First Appeal, being First Appeal No. 67 of 1998. The learned first appellate Court took up four points for consideration, and answered all the four points in favour of the Appellant but nevertheless allowed the appeal partly, and set aside the judgment/Decree of the learned trial Court only to the extent it directed the deletion of the name of the Appellant from the survey records.
6. Shri A. P. Cardozo, the learned Counsel appearing on behalf of the Appellant, has submitted that the learned first appellate Court having given a finding on all the four points in favour of the Appellant, the learned first appellate Court had no other option but to dismiss the suit filed by the said Plaintiffs. Learned Counsel has particularly referred to para 7 of the judgment wherein the learned first appellate Court has given a finding that the learned trial Court fell in error in decreeing the suit against unknown heirs of Respondent No. 3(i.e. unknown heirs of late Lourdes Raquel Milagrina Pinto also known as Raquel Milagrina Pinto who was from Sangolda, now residing at unknown place). Learned Counsel further points out that the learned first appellate Court had also given a finding that there were no proceedings contemplated as against unknown heirs and that the trial Court had proceeded to decree the suit in a cavalier manner. In support of the said submissions Shri Cardozo, learned Counsel has placed reliance on a judgment of this Court in the case of Donald Gonsalves v. Penha de Franca Youth Club 2002 (3) ALL MR 814, wherein this Court held that where a suit is filed against unknown legal heirs of a deceased person and summons is served on unknown heirs by substituted service, the ex-parte decree passed in such suit is liable to be set aside at the instance of the legal heirs who later came to know of the ex-parte decree. This Court has also held that summons had to be issued to persons, and if the addresses are not known, then only, service could be effected by means of substituted service. It is further stated that substituted service to unknown person is not one according to law and the procedure prescribed by the Code of Civil Procedure.
7. On the other hand, Shri Valmiki Menezes, learned Counsel appearing on behalf of Respondent Nos. 1 and 2 (Original Plaintiffs) has submitted that the Appellant could not have filed the present Second Appeal since the decree of the trial Court to the extent it affected his right was set right by the first appellate Court, and, therefore the Appellant is not an aggrieved person. Learned Counsel further submits that there is no set rule that in every case a suit filed against unknown heirs cannot be entertained and in this regard learned Counsel has placed reliance on certain observations found in the case of Smt. Sheel Arora v. Sanjay Fetah Bahadur Srivastava (MANU/MH/0793/2003 : AIR 2004 Bom 99).
8. The case of Smt. Sheel Arora v. Sanjay Fetah(supra) was a case where Defendant No. 1 was named, but Defendant No. 2 was shown as "unknown legal heirs of Fateh Bahadur Shrivastava". In this case reference was made to the judgment of the Court in V. B. Kapadia v. Nirmala(Civil Revision Application No. 5423/61 decided on 22-1-62) where it appears there were some observations which supported the contention that the suit could be instituted under certain circumstances in the name of unknown heirs of the deceased. However, what were those circumstances have not been spelt out in the judgment. It was also observed that "the proposition laid down by Naik, J. in Civil Revision Application No. 491/59 that heirs should and ought to be named in the plaint was accepted as correct proposition and I respectfully agree with the said proposition". The Court ultimately held that the suit filed against Defendant No. 2 i.e. unknown heirs of Fateh Bahadur Shrivastava was not maintainable, and, therefore the Court proceeded not to grant leave to the Plaintiff for taking out fresh summons for judgment against Defendant No. 2. The Court also noted that the Plaintiff had stated that the deceased Fateh Bahadur Shrivastava was her family friend indicating therein that the two families knew each other. If so there is no reason that the Plaintiff was unable to give the names of his heirs.
9. In my view, the Appellant having been granted leave to challenge the judgment/Decree of the learned trial Court without any qualification, there is no reason why the Appellant cannot be allowed to file a second appeal therefrom, when the first appellate Court had given a finding that the suit itself was not maintainable. The learned first appellate Court had clearly come to the conclusion that the Appellant had justified himself in preferring the appeal filed by him which was held to be maintainable. Although, the learned first appellate Court came to the conclusion that the judgment/Decree passed by the trial Court was ex facie illegal, arbitrary and perverse to warrant interference the learned trial Court had not assigned any reason why the appeal was to be allowed only partly. Having come to that conclusion that the judgment/Decree of the learned trial Court was illegal, arbitrary and perverse, the learned first appellate Court ought to have proceeded to set it aside and dismiss the suit of the Plaintiff. In the facts of the case and the law laid down by this Court in three decisions cited herein above, namely Civil Revision Application No. 491/59, 2002(3) ALL MR 814 as well as MANU/MH/0793/2003 : AIR 2004 Bom 99, the suit against Defendant No. 1 was clearly not maintainable and therefore had to be dismissed. That answers the first substantial question.
10. Shri Menezes, learned Counsel next points out that the first question is as regards a suit being filed against unknown heirs of a party. Learned Counsel submits that no substantial question is raised as regards want of address of Defendant No. 2 which would be a case of the name being known and address not being known. Shri A. P. Cardozo, learned Counsel on the other hand, points out that the point now raised by Shri Menezes is covered by the second substantial question of law framed by this Court, and, in my view it is rightly so. Learned Counsel submits that the Plaintiffs did not mention the place of residence of Defendant No. 2 which was required of them in terms of Clause (c) of Rule 1, Order VII, Code of Civil Procedure
11. Order VII, Code of Civil Procedure deals with the particulars which a plaint is required to contain and Clause (c), Rule 1 mandates that the plaint shall contain "the name, description and place of residence of the Defendant, so far as they can be ascertained". Order 5, Rule 10 provides for mode of service and it states that the service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. Needless to observe, the particulars required to be given in terms of Order VII, Rule 1, Clause (c) are for the purpose of enabling service on a Defendant so that he can defend an action brought against him. If no address is given, obviously a Defendant cannot be served and in case a Defendant cannot be served, for want of address, any order or decree passed against him cannot affect his rights. The description given by the Plaintiffs of Respondent No. 2 is no description at all in the light of the provisions of Clause (c), Rule 1, Order VII, Code of Civil Procedure , and, therefore no suit which is filed against a Defendant with particulars which are not sufficient to identify and locate him/her and serve the summons is also not maintainable. It is to be noted that service on person of the Defendant is the basic rule. Substituted service by publication is an exception and is meant only in cases contemplated in Rule 20, Order 5, Code of Civil Procedure Plaintiffs had dealings with Defendant No. 1 and ought to have found out who are the legal heirs.
12. A suit cannot be allowed to be filed against unknown heirs of a deceased Defendant because personal service cannot be effected on them. Likewise, summons cannot be affected on a Defendant whose address is not known. If no service can be affected, obviously the Defendants cannot defend the action. In such a situation substituted service can only be a farce. If a suit cannot be filed against unknown heirs as held by this Court in the case of Donald Gonsalves v. Penha de Franca Youth Club(supra) and Ors. decisions cited herein above, a suit which is filed against a Defendant with no address given to locate and serve summons on him, is also not maintainable. The learned trial Court having come to the conclusion that the judgment/Decree of the learned trial Court was illegal, arbitrary and perverse had no other option, but to set it aside and dismiss the suit.
13. Consequently, both the questions stand answered accordingly. The Second Appeal is allowed and the suit of the Plaintiff is hereby dismissed.
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