Jayantilal Kalyanji Mehta vs Ritaben Bhogilal Mehta

K.S. Jhaveri, J.—By way of present petition, the Petitioner has inter alia prayed for quashing and setting aside the impugned order 19th September 2006 passed by the Principal Senior Civil Judge, Valsad below Application Exhibit 1 in Miscellaneous Application No. 35 of 2003, whereby the trial Court has allowed the said application Exhibit 1.

It is the case of the Petitioner that in the year 1999, Special Civil Suit No. 124 of 1999 was preferred by the Petitioner against one Bhogilal Kalyanji Mehta, which came to be disposed of vide judgment and order dated 07th October 2002. Being aggrieved by the same, the said Bhogilal Mehta preferred Miscellaneous Application No. 35 of 2003 for setting aside the said expert judgment and decree, which came to be allowed vide impugned order. Hence, present petition.

Mr. Aspi Kapadia, learned Advocate appearing for the Petitioner, has submitted that as Shri Bhogilal Kalyanji Mehta refused to accept the summons, it is deemed to have been duly served upon him; that no effort has been made by Shri Bhogilal Mehta or his daughter Ritaben Mehta to examine the postman who had made the endorsement of refusal and that the Appellate Court has erred in entertaining the application even after limitation periods. In view of aforesaid submissions, it is prayed that present petition is required to be allowed.

Mr. Rushabh Shah, learned advocate for the Respondent, has submitted that the order impugned in the petition passed by the Appellate Court is just and proper. The Appellate Court has assigned cogent and convincing reasons for arriving at just conclusion by dealing with all the points canvassed by the learned advocate for the Petitioner. In view of aforesaid, it is prayed that present petition may be dismissed.

Having considered the rival contentions raised by the learned advocates for the respective parties, averments made in the petition and the documentary evidence produced on record along with the impugned order, it transpires that the impugned order passed by the trial Court is just and proper. The trial Court has categorically observed in paragraph 2 that though the Petitioner herein was aware about the fact that the Respondent was staying at Dahanu at Umargam at the residence of his daughter Ritaben, the Petitioner has intentionally mentioned the address of Mumbai in the cause-title of the plaint and thereby, got issued summons on the said address. It is pertinent to note that it is only after a copy of the ex-parte judgment and decree was received by the Respondent, the Respondent came to know about the said ex-parte judgment and decree. It is required to be noted that after receipt of the notice u/s 135-D of the Tenancy Act, the Respondent immediately approached the trial Court and obtained certified copy of the ex-parte judgment and decree and thereafter, moved the Appellate Court. Thus, it transpires that the Petitioner has acted smartly with the Court proceedings. In view of aforesaid, when an ex-parte judgment and decree has been obtained by the Petitioner on such technical ground, in my opinion, the Court should not be a party to such technicalities. Further, even if there is any delay, the view taken by the Appellate Court is just and proper. It is rightly observed by the Appellate Court that no prejudice will be caused to the Petitioner if the suit is decided by hearing both the sides, otherwise it would seriously prejudice the case of the Respondent. Thus, when there was no due service of the summons, the view taken by the Appellate Court is just and proper.

In view of aforesaid, I am of the opinion that the view taken by the Appellate Court is just and proper. The Appellate Court has assigned cogent and convincing reasons for arriving at the impugned conclusion. Over and above aforesaid reasons, I adopt the reasons assigned by the Appellate Court and do not find any illegality much less any perversity in the findings recorded. I am in complete agreement with the findings recorded by the Appellate Court. No case is made out to interfere with the findings recorded by the Appellate Court. Hence, present petition deserve to be dismissed.

For the foregoing reasons, present petition fails and is, accordingly, dismissed. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.