Ajit R. Bagwe v. Ajit R. Bagwe, 2018 SCC OnLine Bom 21368

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Page 1 Wednesday, June 21, 2023

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2018 SCC OnLine Bom 21368 : (2018) 4 Bom CR 346
In the High Court of Bombay

(BEFORE GUPTE S.C., J.)
Ajit R. Bagwe … Applicant;

In the matter of
Prime Builders … Plaintiff;
Versus
Suman R. Bagwe and Others … Defendants.
Notice of Motion No. 920 of 2014 in Suit No. 60 of 1998
Decided on February 21, 2018
The Judgment of the Court was delivered by
GUPTE S.C., J.:— Heard learned Counsel for the parties.
2. This Notice of Motion is taken out by original defendant No. 2 for
setting aside an ex parte decree passed against him. The ex parte
decree was passed on 11 August 2009 against the applicant herein and
two others. The present application is taken out more than four years
thereafter. The application is on the ground that writ of summons was
not duly served on the Applicant and the delay is sought to be
explained on the ground that since this is a case of non service of writ
of summons, limitation would commence from the date of knowledge
and that knowledge was obtained on 14 December 2013, when the
applicant's advocate, while searching the Website of this Court for Case
Status Information for another pending testamentary proceeding ie.
Testamentary Suit No. 16 of 2005, pertaining to the same premises as
the suit premises, got knowledge of the ex parte decree and the
Execution Application taken out by the judgment Creditors in
pursuance thereof. The applicant claims to have
Page: 347
taken out the present application within a week of his knowledge.

Before we assess the merits of this application in the light of several
judgments cited at the Bar in support and against the application, a
few dates may be noted. The present Suit was originally filed against
one Usha Bagwe. The Suit was filed in 1997. The Suit was for specific
performance of a Memorandum of Understanding executed between the
original defendant Usha Bagwe and the plaintiff. Usha Bagwe passed
away in October 2001. Thereafter her brother, Ratnakar Bagwe, who
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was her only surviving legal heir, was brought on record and the
necessary amendments were carried out. Ratnakar Bagwe, thereafter,
appeared in person at the hearing of one of the miscellaneous
proceedings taken out in the present Suit. He, however, chose to
remain absent on the next occasion, whereupon the miscellaneous
proceeding, namely, Notice of Motion No. 3011 of 2000, was allowed.
Ratnakar Bagwe passed away during the pendency of the Suit. On the
plaintiff's knowledge, said to have gained in October 2005, a Chamber
Summons was taken out to bring on record the defendants herein as
legal heirs of Ratnakar Bagwe. The Chamber Summons was duly served
on the defendants. The service was acknowledged by the applicant
herein (proposed defendant No. 2) for himself and on behalf of two
other defendants, namely, proposed defendant Nos. 1 and 3 to the
Suit. In the acknowledgment, the applicant described himself as the
Constituted Attorney of defendant Nos. 1 and 3. The Chamber
Summons was allowed on 27 June 2006 and the present defendants
were brought on record. The order shows appearance on their behalf in
the Chamber Summons. It is an accepted position that the same
Advocate appeared for these defendants in the companion
testamentary proceedings, namely, Testamentary Suit No. 16 of 2005.
The impleadment order directed service of amended copy of plaint on
the newly added defendants and filing of Written Statement by the
newly added defendants within a specified time of the service of
amended copy of the plaint. After the amendment was carried out, the
plaintiff sought to effect service of writ of summons with amended
plaint on the newly added defendants. Two attempts of such service
were made by the plaintiff. It is not in dispute that all the defendants
reside at the same address at which service was sought to be effected.
Whereas defendant Nos. 1 and 3 duly received writ of summons with
the amended plaint on this address, the ap plicant (defendant No. 2)
was unavailable on both dates and, accordingly, service could not be
effected on him. The Bailiff has made an affidavit to that effect. Writ of
summons was thereafter sent through RPAD to the other address of the
applicant herein, which is shown in the Cause Title of the Suit. That was
around February 2008. The packet of service came back with the
remark “un claimed”. An affidavit of the Bailiff to this ef fect is placed
on record. The matter thereafter reached on 7 July 2009, when the
plain tiff was directed to file its oral evidence in the form of an affidavit
in lieu of examina tion-in-chief together with a compilation of original
documents. These directions were complied with by the plaintiff and
finally on 11 August 2009 this Court, after being sat isfied as regards
the effective service on all defendants, proceeded to pass the impugned
ex parte decree against all the defendants. Paragraph 4 of the order
records that all le gal heirs of the original defendant are served but
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failed to appear in the Suit. More than four years after the passing of
this decree, as noted above, and after purportedly making out a case
for condonation of delay, also as noted above, the present application
was moved by the applicant. In the meantime, the plaintiff had even
moved for execution of the ex parte decree and purported to serve a
notice under Order 21, Rule 22 of the Code of Civil Procedure towards
such execution.
3. In the backdrop of these facts, I have to consider whether ex

parte decree passed
Page: 348
on 11 August 2009 needs to be set aside. What I have to consider is,

whether the applicant has satisfied the Court that the summons was
not duly served on him or that he was prevented by any sufficient
cause from appearing when the Suit was called on for hearing. I find
that the applicant has not satisfied either of these conditions. My
reasons are as follows. The provisions concerning issue and service of
writ of summons are contained in Order 5 of the Code of Civil
Procedure. Order 5 inter alia provides for the modes of service in
various cases. This Court has also made rules in this behalf, namely,
Bombay High Court (Original Side) Rules, which make provisions, in
Chapter 6 thereof, for writ of summons. One of these rules, namely,
Rule 84, makes a provision regarding proof of service of summons.
Such service usually stands proved if a vakalatnama is filed on behalf of
the notice defendant. It is also permissible for the defendant to waive
the service of writ of summons through himself or his Advocate, in
which case the proof of service is dispensed with. A Division Bench of
this Court in the case of (Meena Ramesh Lulla v. Omprakash A. Alreja)1 ,
Appeal No. 616 of 2011 decided on 21 September 2011 has considered
the purpose and object of service of writ of summons. The Division
Bench has held that the purpose and object of such service is only to
give notice to the defendant of the plaintiffs claim. It enables the
defendant to appear and answer the plaintiffs claim. The Division Bench
held that it is not an ornamental or a ritualistic requirement. The
Division Bench further observed that:
“When the object of notifying the defendants of the plaintiffs'

claim is otherwise served, the service of the writ of summons would
become a redundant formality taking up needless judicial time in
passing directions for such service and causing avoidable expenses
to the plaintiffs in serving summons. It is, therefore, that when
defendants appear upon notice of the plaintiffs to defend an
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application for ad interim or interim relief either personally or

through their Advocate they generally waive service.”
The Division Bench also held as follows:“The evidence of the
vakalatnama of the Advocate of the defendant itself would, therefore,
show service of the summons upon the defendant. The appearance
by the defendant at any stage of the suit is further such evidence.
Filing of the affidavit in reply in an interim application is also such
evidence. Consequently, when a suit comes up for hearing it would
be material to see whether the writ of summons is actually served
which can be evidenced by an affidavit of service, failing which it
would be seen by the Vakalatnama of the defendants' Advocate, the
appearance of the defendant, or any other proceeding filed or taken
by the defendant in the suit Once any of these is shown the formal
service of the writ of service cannot be insisted upon.”
4. To the same effect are the observations of the Supreme Court in
the case of (Sunil Poddar v. Union Bank of India)2 , 2008 B.C.I. (soft)
171 (S.C.) : (2008) 2 SCC 326. The Court in that case was construing
the amended provisions of Rule 13, of Order 9 in the light of the
requirement of service of writ of summons under Order 5 of the Code of
Civil Procedure. The Court held as follows:
“It is, therefore, clear that the legal position under the amended
Code is not whether the defendant was actually served with the
summons in accordance with the procedure laid down and in the
manner prescribed in Order 5 of the Code, but whether (i) he had
notice of the date of hearing of the suit; and (ii) whether he had
sufficient time to appear and answer the claim of the plaintiff. Once
these two conditions are satisfied, an ex parte decree cannot be set
aside even if it is established that there was irregularity in service of
summons. If the Court is convinced that the defendant had
otherwise knowledge of the proceedings and he could have appeared
and answered the plaintiffs claim, he cannot put forward a ground of
non-service of summons for setting aside ex parte decree passed
against him by invoking Rule 13 of Order 9 of the Code. Since the
said provision applies to the Debts Recovery Tribunals and Appellate
Tribunals under the Act in view of section 22(2)(g) of the Act, both
the Tribunals were right in observing that the ground raised by the
appellants could not be upheld.
Page: 349
It is not even contended by the appellants that though they had

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knowledge of the proceedings before DRT, they had no sufficient

time to appear and answer the claim of the plaintiff Bank and on that
ground, ex parte order deserves to be set aside.”
5. These dicta make it clear that in an appropriate case, proof of
service of writ of summons may be dispensed with if the circumstances
of the case show that the defendant not only had notice of the suit but
in fact appeared in the suit, even if such appearance be in a
miscellaneous proceeding arising in the course of the suit.
6. Let us now consider the facts of our case. In our case, when the
Chamber Summons was taken out for impleadment of the present
defendants in place and stead of the sole defendant, who had expired,
the defendants were all represented by an advocate. Learned Counsel
for the applicant is technically right in the sense that this appearance
was at a presuit stage; on that date, the defendants were not in fact
impleaded as parties to the Suit. Even if it is so, what is important to
note is that the advocate not only appeared for the defendants but
accepted an order that upon service of amended copy of the plaint, a
written statement or additional written statement should be filed on
behalf of the newly added defendants. Considering that the defendants
accepted the mandate of filing of written statement in pursuance of the
order passed on the impleadment application, it cannot possibly be
suggested that there was a legal requirement on the part of the plaintiff
to effect a formal service of writ of summons on the newly added
defendants. The latter had practically waived the service of writ of
summons. What was to be served on them was the amended plaint, of
which also they really had a notice, the amendment being as per the
schedule to the Chamber Summons they were appearing in. None of
the defendants including the applicant herein chose to file any written
statement. It is proved that the amended plaint was served alongwith
writ of summons (though such writ of summons was not strictly
necessary) on atleast defendant Nos. 1 and 3. There is abundance of
material that this service would signify knowledge on the part of the
applicant herein (defendant No. 2). The applicant herein is admittedly
the Constituted Attorney of defendant Nos. 1 and 3. Defendant Nos. 1
and 3 had clear notice of the amended plaint. These defendants
admittedly reside at the same address as the applicant herein. All the
defendants including the applicant herein are represented by the same
advocate in the Suit herein though at the stage of Chamber Summons.
Admittedly, the same advocate was appearing for all the defendants
including the applicant herein in a connected testamentary proceeding,
being Testamentary Suit No. 16 of 2005, during the relevant period,
that is to say, between 2009 and 2015. All these facts cumulatively
establish, by preponderance of probabilities, the knowledge on the part
of the applicant herein of the pendency of the Suit and the dates of its
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hearings. Though this is not a case of a mere irregularity of service, and

even if we were to proceed on the basis that there was an absolute
requirement of service of writ of summons on the applicant, the
rationale of the law excusing irregularity of service in terms of the
proviso to Order 9, Rule 13 can very well be applied even to the facts of
this case. Here is a party, who was not only aware of the filing of the
suit against him but also the date of hearing of the suit and who
appeared through Advocate and even suffered an order for filing of
written statement within a stipulated period; who went on to suffer an
ex parte decree thereafter; and who only applied for setting aside that
ex parte decree more than four years after the passing of the same and
after the plaintiff herein moved for execution of the decree. Is it then
possible to say that the object of notifying him of the plaintiffs case and
allowing him to contest the same is not fully and comprehensively
served. The plea of non-service of writ of summons in such a case is
nothing but a
Page: 350
convenient and tactful excuse for setting aside the ex parte decree
suffered willingly.
7. Mr. Soni, learned Counsel for the applicant, relies on the

judgments of (Grindlays Bank Ltd. v. The Central Government
Industrial Tribunal)3 , 1980 Supp SCC 420 : AIR 1981 SC 606 (Sushi
Kumar Sabharwal v. Gurpreet Singh)4 , (2002) 5 SCC 377 and (New
India Assurance Co. Ltd. v. Nasibunnisa Mohd. Israr Khan)5 , Civil
Application No. 1979 of 2011 decided on 14 October 2011 in support of
his case. In Grindlays Bank case, the Supreme Court was considering
an award passed after refusing to adjourn the hearing. The Court
treated this like an exparte award. The Court said that where a party is
prevented from appearing at the hearing due to a sufficient cause, and
is faced with an ex parte award, it is as if the party is visited with an
award without a notice of the proceedings, and such award is a nullity.
This case does not support the applicant herein. In the present case,
the application of the applicant for setting aside the decree is being
refused on the ground that he in fact had sufficient notice and was not
prevented from appearing at the hearing due to any sufficient cause.
Learned Counsel, however, submits that mere knowledge of the suit is
not enough; the due service of summons must still be proved. Learned
Counsel cites the case of Sushil Kumar Sabharwal (supra) in this
behalf. That was a case where the High Court had refused to allow the
application for setting aside exparte decree on the ground that the
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applicant knows about the suit. The Supreme Court held that the High
Court had overlooked the second proviso to Rule 13, of Order 9. It is
the knowledge of the “date of hearing” and not the knowledge of
“pendency of suit” which is relevant for the purpose of the proviso.
Here, as we have seen above, the applicant ought to be held as not just
having the notice of the suit but also of the date of hearing after
practically waiving the service of writ of summons. The question
considered in the case of Nasibunnisa Mohd. Israr Khan (supra) was
whether postal intimation of “unclaimed” amounts to a good service.
There is no gainsaying that it does not. But that is not how the present
application is being refused.
8. Notice of Motion is dismissed. No order as to costs. Learned
Counsel for the applicant prays for stay of execution. He did not have
stay all the while. After hearing and dismissing the Notice of Motion
comprehensively, there is no question of granting any stay. Request is
rejected.
9. Notice of Motion dismissed.
———
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, June 21, 2023

2018 SCC OnLine Bom 21368 : (2018) 4 Bom CR 346

In the High Court of Bombay

Ajit R. Bagwe … Applicant;

taken out the present application within a week of his knowledge.

3. In the backdrop of these facts, I have to consider whether ex

on 11 August 2009 needs to be set aside. What I have to consider is,

“When the object of notifying the defendants of the plaintiffs'

application for ad interim or interim relief either personally or

It is not even contended by the appellants that though they had

knowledge of the proceedings before DRT, they had no sufficient

hearings. Though this is not a case of a mere irregularity of service, and

7. Mr. Soni, learned Counsel for the applicant, relies on the

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