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

The Bombay High Court stated yesterday that the suit summons was never served on the Petitioner because it was accepted by Respondent No. 3 who falsely claimed to be his wife. Due to the Petitioner’s lack of knowledge about the suit proceedings and the ex parte decree, the court excused the delay in filing the First Appeal before the Appellate Court. 

In the case of Shamrao Piraji Kadam v Prakash Shivaji Chavan and ors (Writ Petition No. 4010 of 2022), a single judge bench led by Honourable Justice Milind N. Jadav stated, “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 was served on their behalf, and the ex parte decree was issued as a result of this service. These are very strong and significant grounds that the learned Appellate Court did not address or justify when it issued the impugned order. In terms of the issue of reasonable cause for condoning delay, the Petitioner’s case appears consistent.” 

Facts of the case:  

Petitioner filed this writ petition to challenge a District Judge’s decision in a Civil Application seeking condonation of a 30-month and 14-day delay in filing a substantive First Appeal before the Appellate Court, in which the Petitioner sought to set aside an ex parte decree in connection with suit property, on the grounds that fraud was committed on the Petitioner. He claimed to have learned of the ex parte decree immediately before filing the First Appeal. 

Respondents Nos. 1 and 2 (Plaintiffs) filed a suit for specific performance of a contract dated 14.08.2013 against the Petitioner on November 22, 2013. (Defendant No. 1). Respondent No. 3 (Defendant No. 2) is the Petitioner’s alleged wife. The Petitioner claims that his wife died a long time ago. The summons in this Suit was served on the Petitioner (Defendant No. 1) and Respondent No. 3 (Defendant No. 2) at an address in Village Wanleswadi by Respondent Nos. 1 and 2 (Plaintiffs). The subject matter of this suit was specific performance of a sale of suit property agreement dated 14.08.2013 between the Petitioner and Respondent No. 3 on the one hand and the Respondents 1 and 2 on the other. 

The Petitioner denied knowledge of this agreement and stated that he does not know Respondents 1 and 2 and has not signed any such agreement. According to the Petitioner, Respondent No. 3 has been set up as his wife by the Respondents 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 also stated that he visited Sangli in August 2017 after learning that Respondent Nos. 1 and 2 had filed a suit for specific performance against him. Petitioner hired an advocate to obtain a copy of the suit proceedings and discovered 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 Petitioner’s absence. On March 5, 2015, the suit was dismissed ex parte against the Petitioner (Defendant No. 1). 

Petitioner claims that he learned about the ex parte decree while visiting Sangli in August 2017. On September 21, 2017, he filed an appeal in the District Court of Sangli, along with a Miscellaneous Civil Application seeking a stay of proceedings. He contends that, given the strong facts in this case, the learned Judge should have permitted delay condonationHe claims that he also filed a police complaint against the Respondents; that an investigation was conducted and that a charge sheet was also filed against the Respondents; that the Respondents were arrested and are currently being held on bail; and that he did not waste any time after becoming aware of the situation in August 2017. 

Court Findings: 

The Curt stated that on the face of the record, the facts are extremely egregious, accordings. The document in favour of Respondents Nos. 1 and 2 is not a registered document, despite the fact that it concerns an immovable property owned by the Petitioner (which the Petitioner denies). The Petitioner was 74 years old when the suit was filed in 2017. Respondent No.3 has been identified as his wife by Respondent Nos. 1 and 2 in their 2013 suit. Petitioner has denied ever meeting or knowing Respondent No. 3. Respondents Nos. 1 and 2 enlisted Respondent No. 3’s assistance in serving the Petitioner and obtaining the ex parte decree against the Petitioner. 

The single judge granted the writ petition, overturning the ex parte order and granting the Petitioner’s Application, while noting that “Another significant aspect of the summons’ service is that it was accepted by Respondent No.3 on behalf of the Petitioner. As a result of the Petitioner’s lack of knowledge about the suit proceedings as well as the ex parte decree, the delay occurred.” 

Judgement Reviewed By Manju Molakalapalli. 

Click Here To View Judgement.

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