Smt. Tarabai Pannalal Sisodiya (Dec.) Thr. Lrs. Sau. Leelabai Chandrakant Bhandari And ORS. v. Sau. Aparna (Tanushka) Sunil Sutar And ORS.

HARSHADA H. SAWANT (P.A.) IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.260 OF 2024 Tarabai Pannalal Sisodiya (since deceased) through legal heirs Leelabai Chandrakant Bhandari and Ors.

.. Applicants

Versus

Aparna (Tanushka) Sunil Sutar and Ors.

.. Respondents ....................

 Mr. Anuj Tiwari, Advocate for Applicants.

 Mr. Sanjeev Gorwadkar i./by Mr. Gurudas Gorwadkar, Advocate for Respondent No.1.

...................

CORAM

: MILIND N. JADHAV, J.

DATE : JULY 01, 2024 P.C.

:

1.

Heard Mr. Tiwari, learned Advocate for Applicants and Mr. Gorwadkar, learned Advocate for Respondent No.1. 2.

The present Civil Revision Application impugns order dated 24.02.2020 passed below Exhibit-46 by 14th Civil Judge Senior Division, Nashik allowing Application filed by Defendant No.1(c) in Civil Miscellaneous Application No.345 of 2014 and directing the decree rather ex parte decree dated 07.04.2014 passed in Special Civil Suit No.661 of 1997 which is appended at page No.78 of the Application to be quashed and set aside with costs. 3.

Being aggrieved, the Plaintiffs have approached this Court to challenge the setting aside of ex parte decree and therefore Mr. Tiwari, learned Advocate for Applicants would submit that pursuant to passing

of ex parte decree on 07.04.2014, the Application for seeking to set aside the said decree under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short 'CPC') was filed on 10.10.2014. He would submit that however the impugned order was passed after a hiatus of around six years on 24.02.2020. The principal objection to the impugned order is the delay which has occurred from 2014 onwards. This objection of delay cannot be countenanced since delay was not on the part of Applicant i.e. Defendant No.1(c) but on part of the Court. 4.

Next he would submit that the suit filed in the year 1997 sought specific performance of an Agreement executed between the parties in the year 1989 on the premise that Plaintiffs had paid substantial amount as stated in the Agreement with respect to purchase of agricultural land which is the subject matter of the Agreement between the parties. In his usual fairness he would candidly inform the Court that Plaintiffs have paid substantial amount and balance of Rs.11,00,000/- was due and payable. He would submit that the suit property was sold by Defendant Nos.1 to 3 as being their undivided share in the suit property which was the subject matter of Agreement. It is seen that present Application is filed by Defendant No.1 (c) for setting aside of ex parte decree against her. Defendant No.1 expired in the interregnum and the Application for bringing legal heirs of Defendant No.1 which is appended at page No.131 of the Civil Revision Application came to be allowed. Thereafter it was duty of

Plaintiffs to serve the Defendants.

5.

Mr. Tiwari, learned Advocate for Applicants i.e. Plaintiffs would submit that attempts were made to serve the copy of suit plaint on Defendant No.1 (c) but the packets came to be returned unserved by the bailiff of the Court. He would submit that Defendant No.1 (c) had admitted in pleadings that she had been residing at different places and therefore Plaintiff sought to effect service of the suit plaint on Defendant No.1 (c) by publication. Appropriate application to that effect was made and advertisement was issued in local newspaper called Sakal in Kolhapur. The learned Trial Court considered the Application filed under Order IX Rule 11 of the CPC and by the impugned order dated 24.02.2020 allowed the same with costs by giving cogent reasons. Reasons are enumerated in paragraph Nos.5 to 10 of the said order. The Revision Applicants i.

e. Plaintiffs would draw my attention to the proviso to Order IX Rule 11 of the CPC and would contend that for the learned Trial Court to set aside the ex parte decree it ought to have been satisfied that Defendant No.1 (c) was indeed served and by virtue of the publication, according to Revision Applicants, it ought to have been accepted as Defendant No.1 (c) was duly served.

6.

He would submit that precursor to that was a bailiff report which stated the remark that copy of suit plaint remained unserved on

Defendant No.1 (c) as she was not found on the address in Shivajipeth, Kolhapur. Learned Trial Court has taken cognizance of the summons report filed before Trial Court under Exhibit-39 and after going through the same and also perusing the summons issued by the learned Trial Court below Exhibit-28 has opined that the address of the Defendant No.1 (c) showed that she was infact residing on a different place altogether in Tarabai Park, Karande Mala which was the address which was stated in the suit summons. Analysing the aforesaid issue alongwith the fact that publication was done, the learned Trial Court after considering the same opined that the reasons which have been stated by Defendant No.1(c) in her Application filed below Exhibit-43 were required to be considered as cogent and acceptable. Such findings have been returned in paragraph No.11 of the order dated 24.02.2020 and after perusing the same, I am not inclined to interfere with same in the interest of justice.

7.

The learned Trial Court has also awarded costs to be paid to Plaintiffs. Strictly on the basis of reasons given in the Application filed below Exhibit-43 and reasons given by the learned Trial Court in paragraph Nos.5 to 11, the order dated 24.02.2020 deserves to be sustained as it is clear that Defendant No.1(c) was not served and issue of publication was infact in the alternative since the service was effected on Defendant No.1(c) at a completely different address. The Defendant No.1 (c) cannot be non-suited. In that view of the matter,

order dated 24.02.2020 is sustained.

8.

It is also seen that Civil Revision Application was filed by Plaintiffs after a lapse of almost four years and therefore in that view of the matter, equity would require this Court to do justice. Allowing Civil Revision Application would virtually allow the suit to be decided ex parte and that can never be the reason for deciding the suit for specific performance in the facts and circumstances of the present case. 9.

Hence in order to balance convenience, the impugned order dated 24.02.2020 stands sustained and directions are given to the learned Trial Court to determine Special Civil Suit No.661 of 1997 as expeditiously as possible and in any event within a period of six months from today after hearing both parties. Both parties are directed to co-operate with the learned Trial Court. Trial Court is directed not to give adjournments to the parties and to give adjournments only if they are utmost necessary due to any emergency or exigency.

10.

With the above directions, Civil Revision Application is disposed.

H. H. SAWANT [ MILIND N. JADHAV, J. ] by HARSHADA HANUMANT SAWANT Date: 2024.07.01 18:01:24 +0530 HARSHADA HANUMANT SAWANT