Bombay High Court
Vatsala Narhar Kulkarni Since Decd. ... vs M/S Amar Chemicals Thr. Its Partner And ... on 19 December, 2024
2024:BHC-AS:49922
Megha 907_wpst_6608_2024_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO.6608 OF 2024
1) Smt. Vatsala Narhar Kulkarni
(since deceased through her legal
heirs)
1a) Mohan Narhar Kulkarni
1b) Sharad Narhar Kulkarni
1c) Jayant Narhar Kulkarni
1b through his Power of Attorney
Holder Prashant Harishchandra
Chavan ...Petitioners
V/s.
1]M/s. Amar Chemicals, a Registered
Partnership Firm Through Its
Partner:
Ashok Kachrdas Bhatevara
2] Deepak Kachardas Bhatevara
3] Smt. Vijaya Prabhakar Nirgudkar
(since deceased through her heirs)
3a] Sou. Pratibha Vidyadhar Dhole
3b] Ravindra Prabhakar Nirgudkar ...Respondents
_____________
Mr. S.C. Wakankar with Ms Aishwarya Bapat for the Petitioners.
_____________
CORAM : SANDEEP V. MARNE, J.
Judgment reserved on : 10 December 2024.
Judgment pronounced on : 19 December 2024.
Judgment :
MEGHA SHREEDHAR PARAB Digitally signed by MEGHA SHREEDHAR PARAB
1) The Petition is filed by the Petitioners challenging the Date: 2024.12.19 17:11:06 +0530 judgment and order dated 3 October 2023 passed by the learned District Judge-5, Pune, allowing Miscellaneous Civil Appeal No.43 of Page No. 1 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx 2015 and setting aside order dated 2 December 2014 passed by the learned Additional Small Causes Court, Pune. By order dated 2 December 2014, the Small Causes Court had rejected the Application filed by the Defendant for setting aside ex-parte decree dated 18 November 2002 under the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908 (the Code). The Appellate Court, by allowing the Appeal, has allowed the Defendant's application by setting aside ex-parte decree dated 18 November 2002. The Appellate Court has restored Civil Suit No.323 of 2001. Petitioners/original Plaintiffs are aggrieved by the order dated 3 October 2023 passed by the Appellate Court and have accordingly filed the present Petition.
2) Briefly stated, facts of the case are that a room admeasuring 109.2 sq.ft. situated on the ground floor of the house property bearing Survey No.720/20, Navi Peth, (CTS No.178 Sadashiv Peth), Pune, are the 'suit premises'. Original Plaintiff-Vatsala Narhar Kulkarni is the landlady, who had inducted Defendant-Firm M/s. Amar Chemicals as monthly tenant in respect of the suit premises. Plaintiff-Vatsala instituted Civil Suit No.323 of 2001 in the Court of Additional Judge, Small Causes Court, Pune seeking recovery of possession of the suit premises on the ground of non-user. The Defendants were duly served with suit summons but failed to appear in the Suit. The Suit accordingly proceeded ex-parte against them. Plaintiff filed evidence through her Power of Attorney. After considering Plaintiff's evidence, the Trial Court decreed the Suit directing Defendants to handover possession of the suit premises to the Plaintiff.
3) Defendant-Firm filed Civil Miscellaneous Application No.13 of 2003 under the provisions of Order IX Rule 13 for setting Page No. 2 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx aside ex-parte decree dated 18 November 2002. The Trial Court however, proceeded to dismiss the said Application by its judgment and order dated 2 December 2014. Defendant-Firm thereafter filed Miscellaneous Civil Appeal No.43 of 2015 before the District Court, which has allowed the said Appeal by setting aside ex-parte decree dated 2 December 2014. The Appellate Court has accordingly restored the Suit on the file of the Trial Court. Petitioners are legal heirs of original Plaintiff-Vatsala, who has passed away during pendency of proceedings before the Trial Court. They have filed the present Petition challenging the judgment and order dated 3 October 2023 passed by the Appellate Court.
4) By order dated 16 April 2024, this Court issued notice to Respondent Nos.1 and 2. The Bailiff's report indicates that the notices have been duly served on Respondent Nos.1 and 2 on 20 July 2024. However, Respondent Nos.1 and 2 have failed to appear in the Petition to defend the same. Accordingly, the present Petition is decided in absence of Respondent Nos. 1 and 2.
5) I have heard Mr. Wakankar, the learned counsel appearing for Petitioners. He would submit that Respondent Nos.1 and 2/original Defendants have not been using the suit premises for several years on account of which they did not appear in the Suit despite service of suit summons. That Petitioners have already secured possession of the suit premises by execution of the decree. It is only after the decree was executed, that Defendants thought of filing of Application for setting aside ex-parte decree on 7 February 2003, which application was kept pending by them for 11 years without showing any interest in prosecuting the same. That the Trial Court had rightly dismissed the application of the Defendants for Page No. 3 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx setting aside ex-parte decree. That the Appellate Court has committed grave error in allowing the application for setting aside ex-parte decree by recording an erroneous finding that the Trial Court did not have material before it for ordering substituted service. He would submit that the Appellate Court has failed to appreciate that the suit summons was duly served on the Defendants. That the address of Defendants has been correctly reflected in the cause title of the Plaint as that of the suit premises. The summons was sought to be served on the same address and accordingly summons was served under the provisions of Order V Rule 20 of the Code by affixing the same to the suit premises. He would submit that since there is proper service of summons, Appellate Court has erred in setting aside Trial Court's order by restoring the Suit after a period of 22 long years. He would submit that Defendants do not occupy the suit premises, which were lying unused for several years and the Plaintiffs have already secured possession thereof through execution of decree. That the application for setting aside ex-parte decree was filed with ulterior motive securing benefit of re-development exercise. Mr. Wakankar accordingly pray for setting aside the order passed by the Appellate Court.
6) After considering the submissions canvased by Mr. Wakankar and after going through the findings recorded by the Trial and the Appellate Courts, the moot issue that arises for consideration is whether any valid ground was made out by the Defendants for setting aside ex-parte decree.
7) Suit premises are located at Survey No.720/20, Navi Peth which is converted into CTS No.178, Sadashiv Peth, Pune-411 030. According to original Plaintiff, the suit premises were let out by her Page No. 4 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx husband late Narhar Kulkarni in the year 1979 to the Defendants for operating the office of their partnership firm-M/s. Amar Chemicals. In the Plaint, address of M/s. Amar Chemicals as well as of its partners- Ashok Kachrdas Bhatevara and Deepak Kachrdas Bhatevara was indicated as 'Narmada Nivas, 111, Kothrud, Pune-411 029'. The ex- parte decree dated 18 November 2002 recorded following findings in respect of service of suit summons:
5. The defendants were duly served by suit summons, however failed to appear and therefore, suit heard exparte. against the defendants.
xxx
7. ... Moreover the suit summons were issued initially on the various occations. The bailiff of the Court has visited the suit premises for the purpose of suit summons on four times and reported that on each time when he visited the suit premises, the suit premises was found locked condition and therefore, summons were not served.
Lastly, the summons has been served under the provisions of Order V Rule 20 of the C.P.C. by afixing the same to the suit premises and this fact also corroborates the case of the plaintiff that the defendants have not using the suit premises for the purpose for which it was let out. ...
8) Thus, the Trial Court has held that its Bailiff visited the suit premises for service of suit summons on four occasions when the premises were found to be locked. However, address of the suit premises was not indicated in the cause title of the Plaint, and it is not known as to why Bailiff could have attempted service of suit summons at the address of the suit premises and not at 'Narmada Nivas, 111, Kothrud, Pune-411 029'. The finding of the Trial Court that the Bailiff sought to serve the summons at suit premises appears to be totally erroneous.
9) In his application for setting aside ex-parte decree, one of the partners of Defendant-Firm Ashok Kachrdas Bhatevara made an averment that he resides at 'Tejas Society, Kothrud, Pune- 411 038', and that Defendant No.2- Deepak Kachrdas Bhatevara resides at Page No. 5 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx 'Bilwa Kunj, near Income Tax Office, Prabhat Road, Pune-411 004. These were the addresses where the Defendants actually resided. But Plaintiff chose to indicate false address of Defendant in the cause title of the suit apparently for securing exparte decree against them.
10) While deciding Civil Misc. Application No.13 of 2003 by order dated 2 December 2014, the Trial Court has not conducted any enquiry as to why the summons were not attempted to be served at the pleaded address in the cause title or actual address where the Defendants resided. The Trial Court has vaguely observed that 'summons were issued to applicant and opponent no.2 on their address and it was partnership firm as Amar Chemicals which is presently titled in the array of applicant'. The Trial Court has further erroneously observed that 'The presently address shown by the applicant and the contents of the decree it is apparent that the present applicant and opponent no. 2 have their accommodation. They were not using the suit premises even the execution of decree do take place by opening lock of the door. Hence apparently it would not be any prejudice to the applicant and opponent no. 2'.
11) In my view, the above findings recorded by the Trial Court, apart from suffering from bad use of language, indicate complete non-application of mind. No enquiry is conducted by the Trial Court to ascertain whether suit summons was indeed served on Defendants or not.
12) The Appellate Court has conducted inquiry into the aspect of service of suit summons and has held in paragraph 7 of the order as under:-
Page No. 6 of 1119 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx 7] The Firm has produced on record various certified copies with list (Exh.23). Perusal of certified copy of judgment in Civil Suit No.323/2001 reveal that the suit premises involved in said suit were having address as S.No.720/20, Navi Peth, CTS No.178, Sadashiv Peth, Pune. The summons and the reports thereof reveal that the summons was sent on the address 111, Narmada Nivas, Kothrud, Pune. A question arises why the suit summons was not addressed on the address of the suit premises involved in Civil Suit No.323/2001. There is no explanation finding place on the record either of the suit or of the Miscellaneous application or of this appeal.
13) The Appellate Court has thus questioned the wisdom of Plaintiff in not indicating the address of the suit premises in respect of the Defendants. The Appellate Court has also relied upon deposition of Ashok Kachrdas Bhatevara asserting that neither the Firm nor any of the partners had address at 'Narmada Nivas, 111, Kothrud, Pune-411 029'. The said witness was apparently not cross- examined and the Appellate Court has accordingly recorded a finding of fact that none of the Defendants had any connection with the address of 'Narmada Nivas, 111, Kothrud, Pune-411 029'. Despite this position, suit summons was repeatedly sought to be served on the said address. The finding recorded by the Appellate Court in this regard in paragraph 8 of its judgment reads thus:-
8] One of the partners of the Firm namely Ashok Bhatewara had filed his testimonial affidavit in Civil MA No.13/2003 claiming that neither the Firm nor any of the partners of the Firm were staying on the address 111, Narmada Nivas, Kothrud, Pune. He has also deposed that this fact was known to the landlady. Proceedings indicate that this witness is never cross-examined and his testimony had gone unchallenged. Thus, in view of his unchallenged testimony, it is to be concluded that neither the Firm nor any of its partners were staying at the address of 111, Narmada Nivas, Kothrud, Pune on the date of suit and this fact was known to the landlady. Despite this, the suit summons was repeatedly sent on the address on which neither the Firm nor its partners were staying, intentionally by misleading the Court which was trying Civil Suit No.323/2001.
Page No. 7 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx 14) The Appellate Court has thereafter criticised the Plaintiff
for not providing fresh address of Defendants despite noticing that they were not located at the misleading address of 'Narmada Nivas, 111, Kothrud, Pune-411 029'. There is therefore room to believe that Plaintiff deliberately indicated erroneous address of Defendants where they would not to be found for the purpose of securing ex-parte decree against them. As per the Plaintiff herself, the suit premises were let out for operating office of Partnership Firm. Easiest way for the Plaintiff to serve suit summonses was to serve the same at the suit premises. However, for some incomprehensible reason, Plaintiff failed to reflect address of the suit premises in the cause title of the Suit.
Defendant No.1-Ashok has pleaded in the Application that communication dated 9 January 2000 was sent by Plaintiff at his Address 'Tejas Society, Kothrud, Pune- 411 038' where he actually resided for a period of 15 long years prior to filing of the said Application on 7 February 2003. Despite being aware of the fact that Defendant No.1 was resided at 'Tejas Society', Plaintiff deliberately reflected fallacious address of 'Narmada Nivas, 111, Kothrud, Pune- 411 029'.
15) The Appellate Court has also cirticised the Trial Court for adopting the mode of substituted service in absence of any material before it as to why normal service had not been effected. The Appellate Court has held in paragraph 12 of its judgment as under:-
12) I have gone through the roznama of Civil Suit No.323/2001 which mentions filing of applications at Exh.7, 8, 9, 10 and 11 for re issuance of summons. Roznama nowhere mentions that an affidavit for effected substituted service was ever filed. The relevant record of Civil Suit No.323/2001 i. e. D-file is not available. However, from the roznama, it is clear that no affidavit for effecting substituted service was tendered before the Court. Therefore, it is doubtful whether the learned Court dealing with Civil Suit Page No. 8 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx No.323/2001 was having any material before it to order substituted service.
16) The conspectus of the above discussion is that Plaintiff had secured ex-parte decree by indicating misleading address in the cause title of the Plaint. In the present Petition, Petitioners have indicated address of M/s. Amar Chemicals as well as of Ashok Kachrdas Bhatevara as 'Tejas Society, Kothrud, Pune- 411 038' and of Respondent No.2-Dipak as 'Bilwa Kunj, Near Income Tax Office, Prabhat Road, Pune-411 004'. The Baillif's report indicates that the notices issued by this Court have been served on Respondent Nos.1 and 2 at the said address. The Bailiff has personally met Mr. Ashok at 'Tejas Society, Kothrud, Pune- 411 038'. The conduct of the original Plaintiff in securing ex-parte decree by reflecting erroneous and imaginary address in the cause title of the Plaint is clearly deplorable and deserves to be visited by imposition of exemplary costs.
17) Upon being questioned as to the source from which the address of 'Narmada Niwas' is indicated in the title of the Plaint, Mr. Wakankar would invite my attention to the Rent Agreement dated 1 July 1979 on which the said address is reflected. Thus, despite being fully aware of the fact the Defendant No. 1 resides at 'Tejas society' address and had secured suit premises for business, Plaintiff deliberately chose to indicate the old address reflected in Tenancy Agreement of 1979 with ulterior motive of securing exparte decree.
18) Mr. Wakankar has relied upon judgment of this Court in David K.N. V/s. S.R. Chaubey (Chaturvedi) 1 in support of his contention that the summons has been duly served in the present case. However, in David (supra) the notice demanding arrears of rent 1 [2003] 3 ALLMR 511 Page No. 9 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx was addressed at the suit premises, which is not the case in the present case. In the present case, Plaintiff deliberately did not indicate address of the suit premises in the cause title of the Plaint. She gave erroneous and imaginary address with a view to ensure that the Suit is decreed in absence of any knowledge on the part of the Defendants. I am therefore, in agreement with the findings recorded by the Appellate Court that the summons in the Suits was never duly served on the Defendant Firm and on its partners. They acquired knowledge of the decree only when the possession of the suit premises was recovered on 8 January 2003. Within 30 days from the knowledge of the decree, the application for setting aside exparte decree was moved on 7 February 2023. I am therefore of the view that the Appellate Court has rightly allowed the Appeal preferred by Defendant No.1.
19) I am convinced that the process of law has been misused by the Petitioners with impunity. They have secured possession of the suit premises by employing deceitful means. The Appellate Court has taken a very lenient view by imposing costs of only Rs. 5,000/- on the Petitioners despite noticing the devious device adopted in securing exparte decree. Such conduct of the Petitioners ought to have been dealt with iron hands. Petitioners did not stop at the level of passing of order against them by the Appellate Court and have filed this baseless petition, further abusing the process of law thereby wasting valuable time of this Court in hearing and deciding the present Petition. In my view therefore, there is not only warrant for imposition of exemplary costs on Petitioners, but the Defendants shall be entitled to file an appropriate application for restoration of possession of the premises obtained by means of execution of exparte decree secured through devious means.
Page No. 10 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 ::: Megha 907_wpst_6608_2024_fc.docx 20) Writ Petition is thus devoid of merits. It is accordingly
dismissed. In addition to the costs already imposed by the Appellate Court, Petitioners shall pay additional costs of Rs. 50,000/- to Pune District Legal Services Authority within a period of four weeks. Payment of costs shall be condition precedent for further entertainment of Civil Suit No. 323 of 2001. Plaintiffs shall not create any third-party rights in respect of the suit premises during pendency of the suit and if already created, the same shall be subject to decision of the suit.
[SANDEEP V. MARNE, J.] Page No. 11 of 11 19 December 2024 ::: Uploaded on - 19/12/2024 ::: Downloaded on - 20/12/2024 00:20:19 :::