Service Of Summons Not Complete If Accepted By "Alleged Wife" Of Party Summoned: Bombay High Court

Petitioner filed this writ petition challenging judgment of District Judge in a Civil Application that was seeking condonation of delay of 30 months and 14 days in filing a substantive First Appeal before the Appellate Court, by which the Petitioner sought to have set aside an ex parte decree in connection with suit property, on the ground that fraud was committed on the Petitioner. He claimed to have come to know about the passing of ex parte decree immediately before filing the First Appeal.

On 22.11.2013 Respondent Nos. 1 and 2 (Plaintiffs) filed a suit for specific performance of a contract dated 14.08.2013 against the Petitioner (Defendant No. 1). Respondent No. 3 (Defendant No. 2) is allegedly the wife of the Petitioner. According to the Petitioner, his wife has expired long back. The summons in this Suit was served by the Respondent Nos. 1 and 2 (Plaintiffs) on the Petitioner (Defendant No. 1) and Respondent No. 3 (Defendant No. 2) on an address at Village Wanleswadi. The subject matter of this suit was specific performance of agreement of sale of suit property dated 14.08.2013 between the Petitioner and Respondent No. 3 on one hand and the Respondent Nos. 1 and 2 on the other hand.

The Petitioner denied knowledge of this agreement and also stated that he does not know Respondent Nos. 1 and 2; further he has not executed any such agreement. According to the Petitioner, Respondent No. 3 whom he does not know nor has he ever met her in his life has been set up as his wife by the Respondent Nos. 1 and 2 and the three Respondents herein have colluded and conspired with each other and committed a massive fraud to usurp the suit property.

The Petitioner further stated that sometime in the month of August 2017 he paid a visit to Sangli when he learnt that a suit for specific performance was filed against him by Respondent Nos. 1 and 2. Petitioner appointed an advocate to obtain the copy of the suit proceedings and came to know that Respondent No. 3 was shown as his wife in the suit proceedings; there was a notarized agreement of sale in respect of the suit property dated 14.08.2013; suit proceedings were served upon Respondent No. 3 (alleged wife) who received the same on behalf of herself and the Petitioner at an address in Walneswadi; the suit proceeded in the absence of the Petitioner. On 05.03.2015 the suit was decreed ex parte against the Petitioner (Defendant No. 1).

Petitioner submits that sometime in August 2017 when he visited Sangli, he came to know about the ex parte decree. He immediately filed an Appeal in the District Court at Sangli on 21.09.2017 along with the Misc. Civil Application seeking condonation of delay. He submits that in view of the strong facts in the present case, the learned Judge ought to have allowed condonation of delay. He submits that he has also filed a police complaint against the Respondents; investigation has taken place and a charge sheet has also been filed against the Respondents; the Respondents were arrested and are presently released on bail; and that he did not waste any time after it came to his knowledge in August 2017.

The single judge Miling N. Jadhav noted that the facts as seen are extremely gross on the face of record. The document in favour of the Respondent Nos. 1 and 2 though concerning an immovable property belonging to the Petitioner (denied by the Petitioner) is not a registered document. The Petitioner was 74 years old at the time of filing of the suit in 2017. Respondent No.3 has been shown as his wife by the Respondent Nos. 1 and 2 in the suit which was instituted by them in the year 2013. Petitioner has denied having met or known Respondent No. 3 altogether. Respondent Nos. 1 and 2 have taken the aid of Respondent No. 3 in serving the Petitioner and obtaining the ex parte decree against the Petitioner.

"The learned Appellate Court has failed to look into and consider the reason that Respondent No. 3 whom the Petitioner denies knowing has been put up as the wife of the Petitioner by the Respondent Nos. 1 and 2 and she has been served on behalf of both of them and on the strength of this service the ex parte decree has been passed. These are very strong and significant grounds which have not been dealt with or reasoned by the learned Appellate Court while passing the impugned order. In so far as the issue of reasonable cause for condoning delay is concerned, there is apparent consistency in the case made out by the Petitioner."

The single judge allowed the writ petition, setting aside the ex parte order and allowing Petitioner's Application, while stating that "another important aspect of the service of the summons is that the same was accepted by Respondent No.3 on behalf of the Petitioner. Hence there was want of knowledge on the part of the Petitioner about the suit proceedings as well as the ex parte decree resulting in the delay."

Case Title : Shamrao Piraji Kadam v Prakash Shivaji Chavan and ors

Citation: 2022 LiveLaw (Bom) 198

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