Bombay High Court
Luiza Anthony Dmello (Thr. C.A. Mr. ... vs Smt. Navalben Shyamji Patel on 8 July, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:27645
21-CRA45-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 45 OF 2023
SANTOSH WITH
SUBHASH
KULKARNI INTERIM APPLICATION NO. 4704 OF 2023
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2025.07.08
20:23:15 +0530
Luiza Anthony D'mello (through C.A. Mr.
Augustine Buthello and anr. ...Applicants
Versus
Navalben Shyamji Patel ...Respondent
Mr. Sachin Dhakephalkar, a/w Mrs. Gauratna Kale, for the
Applicants.
Mr. Aseem Naphade, a/w Ms. Priyanka Ghosh, i/b M/s.
Solicis Lex, for the Respondent in CRA/45/2023 and
for the Applicant in IA/4704/2023.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 25th JUNE, 2025
PRONOUNCED ON: 8th JULY, 2025
JUDGMENT:-
1. The legality, propriety and correctness of a judgment and order dated 4th August, 2022 passed by Appellate Bench of Court of Small Causes at Bombay in Misc. Appeal No.36 of 2021, whereby the appeal preferred by the respondent - defendant against an order of rejection of application for condonation of delay in setting aside the ex parte decree passed in R.A.E. Suit No.638/1028 of 2007, came to be allowed thereby condoning the delay in preferring the application for setting aside the ex parte decree.
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2. For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity in which they are arrayed before the trial court.
3. Shorn of superfluities, the background facts can be stated as under:
(a) The plaintiffs are the owners/landlord of the suit shop situated in Anthony D'Mello Chawl at Kanjurmar (East), Mumbai. The defendant was the tenant in the suit shop. The plaintiffs had instituted a suit being R.A.E. Suit No.638/1028 of 2007 for eviction of the defendant on the ground of default in payment of rent and permanent additions and alterations in the suit shop without the permission of the landlord.
(b) The suit summons was duly served on the defendant on 9th July, 2007. The defendant did not appear despite service of summons. Hence, the suit proceeded ex parte against the defendant. By a judgment and order dated 17 th November, 2009, the learned Judge, Court of Small Causes, was persuaded to decree the suit.
(c) It appears that the the plaintiffs did not file a petition to execute the decree for long. It was in the year 2017, the plaintiffs filed execution petition. Since the execution was laid 2/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC after two years of the decree, initially, the Executing Court allowed MARJI Application No.24 of 2017 and permitted the plaintiffs to take out application for execution of the decree.
Eventually, the decree came to be executed and clear and vacant possession of the demised premises was delivered to the plaintiffs as Dr. Kiritkumar Dawda, who was then in the occupation of the suit shop, handed over peaceful and vacant possession thereof to the Bailiff.
(d) The defendant preferred an application being MARJI Application No.255 of 2019 seeking condonation of delay of 3467 days in filing the application for setting aside the ex parte decree. It was, inter alia, averred that the defendant came to know about the passing of the decree in R.A.E. Suit No.638/1028 of 2007 and the execution thereof on 24 th April, 2019, upon being apprised by Dr. Kiritkumar Dawda. The defendant was not aware of the passing of the ex parte decree dated 17th November, 2009 in the said suit. The plaintiffs had even accepted rent of the suit premises till the year 2015. In fact, the suit shop was sublet to Dr. Kiritkumar Dawda with the prior permission and insistence of the plaintiffs as the defendant had shifted from the suit premises in the year 2011 due to poor and unhealthy living conditions. The plaintiffs - 3/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 :::
21-CRA45-2023.DOC landlords were very well cognizant of the said fact. Yet, without serving the suit summons on the defendant, the plaintiffs obtained ex parte decree. It was, therefore, necessary to condone the delay in filing the application for setting aside the ex parte decree.
(e) The plaintiffs resisted the application by an affidavit-in- reply. It was, inter alia, contended that the suit summons was duly served on the defendant. In fact, the defendant has not been using the suit shop for the purpose of which it was let out since the year 2011. However, the suit summons was served on the defendant in the year 2007 itself. Therefore, the application premised on want of knowledge of the R.A.E. Suit and decree was wholly misconceived.
(f) By an order dated 14 th March, 2020, the learned Judge, Court of Small Causes, was persuaded to reject the application observing inter alia that the summons was duly served on the defendant in-person and the defendant failed to make out a sufficient cause for condonation of huge delay of 3467 days.
(g) Being aggrieved, the defendant preferred an appeal before the Appellate Bench. By the impugned order the Appellate Bench was persuaded to set aside the order passed by the trial Judge observing, inter alia, that in the circumstances of the 4/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC case whether the suit summons was duly served upon the defendant or not, was a question that was required to be decided while dealing with the application for setting aside the ex parte decree. The learned Trial Court, in the view of the Appellate bench, erred in mixing the issue of satisfactory explanation for the codonation of delay and proof of due service of summons. The applicants also failed to bring on record any other evidence to show that the defendant had knowledge of the decree prior to 20th November, 2019, as claimed by the defendant. Thus, the delay was condoned and MARJI application for setting aside the ex parte decree was directed to be registered and decided on merits.
4. Being aggrieved, the plaintiffs have invoked the revisional jurisdiction.
5. I have heard Mr. Dhakephalkar, the learned Counsel for the applicants and Mr. Naphade, the learned Counsel for the respondent, at some length. With the assistance of the learned Counsel for the parties, I have perused the material on record.
6. Mr. Dhakephalkar, the learned Counsel for the applicant, would urge that the Appellate Bench of the Court of Small Causes completely misdirected itself in casting the burden on the plaintiffs to establish that the defendant had knowledge of 5/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC the decree prior to 20th November, 2019. In the process, the Appellate Bench completely misconstrued import of the provisions contained in Article 123 of the Limitation Act, 1963. The learned trial Judge has posed unto himself the question as to whether the suit summons was duly served or not on the defendant. Having found that the suit summons was duly served on the defendant and that no explanation was offered by the defendant for the condonation of delay from the time the period of limitation for filing an application to set aside ex parte decree began, recorded a justifiable finding that the defendant failed to offer any satisfactory explanation for the delay of over 10 years. The Appellate Bench was clearly in error in interfering with such a finding of fact by approaching the matter in an incorrect perspective.
7. Mr. Naphade, the learned Counsel for the defendant, on the other hand, would urge that the Appellate Bench was right in correcting the mistake which the learned trial Judge had committed. The question as to whether the suit summons was duly served on the defendant or not was indeed a matter for adjudication. In a proceeding to set aside an ex parte decree, which is in the nature of a miscellaneous proceeding, by virtue of the provisions contained in Section 141 of the Code of Civil 6/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC Procedure, 1908, the procedure prescribed therein in regard to the suits was required to be followed. Therefore, the Appellate Court correctly held that, at the stage of consideration of the application for condonation of delay in filing an application for setting aside the ex parte decree, the Trial Court ought to have confined its inquiry to the sufficiency of cause shown by the defendant. Moreover, there is material on record to show that the substituted service of the notice could not have been resorted to. Since the defendant was not found at the suit shop and eventually vacant possession was allegedly delivered by Dr. Kiritkumar Davda, the Appellate Court was fully justified in returning a finding that the plaintiffs failed to establish that the defendant had the knowledge of the decree at a prior point of time. Thus, Mr. Naphade would urge, when the Appellate Court has exercised the discretion to condone the delay, this Court ought not to interfere in such order which promotes the cause of substantive justice.
8. I have given careful consideration to the submissions canvassed across the bar and also carefully perused the pleadings and the material on record.
9. To being with, few uncontroverted facts. Firstly, there is no controversy over the jural relationship between the plaintiffs 7/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC and the defendant. Secondly, the dates of the institution of the suit for eviction i.e. 15th June, 2017 and passing of ex parte decree therein i.e. 19th November, 2009, are not in dispute. Thirdly, the factum of execution of decree on 20 th April, 2019 is evidenced by the Bailiff's report.
10. In the backdrop of these facts, the defendant preferred application on 1st July, 2019, seeking condonation of 3467 days delay in filing the application to set aside the ex parte decree. The controversy between the parties revolves around the question, as to whether there was a sufficient cause for condonation of delay?
11. It was the claim of the defendant that she had no knowledge of the institution of the suit and passing of the decree till 20th April, 2019, (day the decree came to be executed). On that day, the defendant claimed, Dr. Kirit Dawda, apprised her about the execution of the decree and thereupon she made inquiry and the facts with regard to the institution of the suit and passing of the ex parte decree therein on 17th November, 2009 came to light. Therefore, for want of knowledge she could not file the application for setting aside ex parte decree at a prior point of time.
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12. Since the application was preferred for condonation of delay in setting aside the ex parte decree, the statutory period of limitation and the time from which the period of limitation begins to run assume critical salience. Would the period being to run from the date of the decree or the knowledge of the decree, is the moot question. If the time begins from the date of knowledge of the decree, probably the defendant may not be required to account for the huge delay.
13. At this stage, the provisions contained in Article 123 of the Schedule appended to the Limitation Act, 1963 deserve to be noted. It reads as under:
Description of suit Period of Time from which period limitation begins to run
123. To set aside a decree Thirty days The date of the decree or passed ex parte or to rehear where the summons or an appeal decreed or heard ex notice was not duly parte. served, when the applicant had knowledge Explanation.-- For the of the decree.
purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.
14. On a plain reading of Article 123 it becomes explicitly clear that the period of limitation for setting aside the ex parte decree is 30 days. However, the time from which the period begins to run, consists of two parts. The applicability of either part of 9/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC Article 123 turns upon the factum of service of summons. Thus, the third column of Article 123 provides that time begins to run from the date of the decree. And where the summons or notice was not duly served, the time begins to run when the applicant had knowledge of the decree.
15. The submission on behalf of the respondent - defendant that the question of due service of summons was required to be adjudicated in the application for setting aside the ex parte decree and, therefore, that was not a relevant consideration, does not merit acceptance. To determine the time from which the period of limitation began to run, it was necessary to determine whether the summons was duly served on the defendant or not.
16. Thus, in the facts of the case, the controversy boils down to the question whether the suit summons was duly served on the defendant.
17. I have perused the Bailiff's report dated 9 th July, 2007.
The Bailiff had categorically reported that the copy of the suit summons, alongwith a copy of the plaint and annexures thereto, was served on the defendant at the suit shop on 9 th July, 2007 and her thumb mark was obtained on the said report. The defendant was identified by the constituted attorney 10/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC of the plaintiff. The suit summons was served on the defendant in the presence of her daughter.
18. In the application seeking condonation of delay, the defendant had asserted that the suit summons was not served on her and she was unaware of the said suit and the decree passed therein. This contention of the defendant was required to be appreciated in the light of the clear and categorical report of service of summons on the defendant in person. It is imperative to note that the defendant does not claim that when the suit summons was allegedly served on the defendant, she was not conducting business at the suit shop. The defendant claimed to have moved to Borivali in the year 2011. That being the case, the report of the Bailiff that the suit summons was duly served on the defendant could not have been brushed aside lightly.
19. Once it is held that the suit summons was duly served on the defendant, then the question of delay would fall within the the ambit of the first part of Article 123 of the Limitation Act, 1963.
20. A profitable reference, in this context, can be made to the judgment of the Supreme Court in the case of Manick Chandra 11/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC Nandy vs Debdas Nandy And Ors. 1, wherein it was inter alia enunciated that under Article 123 the period of limitation for making an application to set aside the decree passed ex parte is 30 days from the date of the decree or when the summons or notice was not duly served, when the applicant had knowledge of the decree. The question of knowledge of the decree by the applicant arises only where the summons or notice has not been duly served.
21. In the case of Sneh Gupta vs. Devi Sarup2, the Supreme Court reiterated that Article 123 of the Limitation Act is in two parts. In a case where a summons has been served upon a party, the first part shall apply. However, in a case where the summons has not been served, the second part shall apply. In the said case, the Supreme Court repelled the submission on behalf of the defendant therein that the limitation would start to run from the date of knowledge, in the following words:
"57. Mr. Jayant Bhushan would submit that the limitation would start to run from the date of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the 1 AIR 1986 SC446.
2 2009 (6) SC 194.12/15
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(emphasis supplied)
22. The aforesaid being the position in law, re-adverting to the facts of the case at hand, if it could be demonstrated that the summons was duly served on the defendant, the edifice of the case of the defendant revolving around the date of knowledge of the decree crumbles. If the Court finds that the summons was duly served on the defendant, the recourse to the second part of Article 123 would not be warranted.
23. As the material on record clearly indicated that the summons was duly served on the defendant, it was for the defendant to show to the contrary. Nothing could be brought on record to even make the factum of service on the defendant a triable issue.
24. The learned trial Judge, upon consideration of the material, recorded a categorical finding that the summons was duly served on the defendant. The Bailiff's report justifies the said finding of fact. The learned trial Judge went on to further observe that the suit summons was served upon the defendant- in-person in the year 2007, much before the defendant allegedly shifted out of the suit premises in the year 2011. These findings of facts could not have been overturned by the Appellate Bench 13/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC of Court of Small Causes by testing the case of the defendant through the prism of the second part of Article 123 of the Limitation Act, 1963.
25. Mr. Dakhephalkar was justified in advancing criticism against the impugned judgment on the premise that the Appellate Bench could not have thrown the burden on the plaintiff to establish that the defendant had no knowledge about the ex parte decree. In other words, the Appellate Court approached the controversy from an incorrect perspective.
26. I am mindful of the fact that the order passed by the Appellate Court exercising the discretion to condone the delay ought not to be lightly interfered with in exercise of revisional jurisdiction as it is a positive act on the part of the Appellate Bench. However, since the Appellate Court has failed to keep in view the distinction between the first and second part of Article 123 of the Limitation Act and wrongly construed the case to fall under the second part of Article 123, the aspect of sufficiency of the cause is required to be appreciated reckoning the date from which the period of limitation began to run, to be the date of the decree.
27. It is imperative to note that apart from a bald assertion that the defendant had no knowledge about the institution of 14/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 ::: 21-CRA45-2023.DOC the suit and the passing of the decree, there is hardly any material to account for such a huge and inordinate delay of about 10 years. Thus, the impugned order does not deserve to be sustained. I am, therefore, inclined to interfere with the impugned order.
28. Hence, the following order:
:ORDER:
(i) The revision application stands allowed.
(ii) The impugned judgment and order passed by the Appellate Bench in Misc. Appeal No.36 of 2021 stands quashed and set aside.
(iii) The order passed by the learned Trial Judge in MARJI Application No.255 of 2019 rejecting the application for condonation of delay stands restored.
(iv) MARJI Application No.24 of 2017 stands rejected.
(v) In view of the disposal of the revision application, IA/4704/2023 does not survive and accordingly stands disposed.
[N. J. JAMADAR, J.] 15/15 ::: Uploaded on - 08/07/2025 ::: Downloaded on - 08/07/2025 22:18:54 :::