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

The decision that service of summons is not complete if the same is accepted by someone falsely claiming to be the wife of the party was upheld by the Bombay High Court through Justice Milind N. Jadhav in the case of Shamrao Piraji Kadam v Prakash Shivaji Chavan and Ors (WRIT PETITION NO. 4010 OF 2022)

FACTS OF THE CASE:

The writ was filed by the petitioner challenging the judgment of the District Judge that sought condonation of delay of 30 months and 14 days for filing the First Appeal. Owing to this, the Petitioner sought to set aside an ex-parte decree in connection with suit property, alleging fraud was committed. He stated that the passing of the ex-parte decree came to his knowledge immediately before filing the First Appeal. 

The subject matter of this suit was the specific performance of the agreement of sale of the suit property 14.08.2013 between the Petitioner and Respondent No. 3 and Respondent Nos. 1 and 2. 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) alleged to be the wife of the petitioner. This was refuted by the petitioner who claimed that his wife expired years ago. The summons in the present Suit was served by Respondent Nos. 1 and 2 on the Petitioner and Respondent No. 3. The Petitioner denied knowledge of this agreement and also stated that he does not know Respondent Nos. 1 and 2. Furthermore, he refused the claim that he executed any agreement. He further alleged that Respondent No. 3 had been named as his wife by the other Respondents in the case. He claimed that the Respondents conspired to commit fraud against him in order to obtain the property.

The Petitioner also alleged that he visited Sangli in August 2017 after learning that Respondent Nos. 1 and 2 had filed an action for specific performance against him. After hiring an advocate to obtain a copy of the suit proceedings, he discovered that Respondent No. 3 was shown in the suit proceedings as his wife, who accepted a notarized sale agreement on her behalf. The petitioner alleges that after learning of the ex-parte decree, he immediately filed an appeal in the District Court. Thus, he prayed for a condonation of delay based on these circumstances.

JUDGEMENT:

The facts as observed are highly heinous on the face of the record, according to single judge Milind N. Jadhav. The document in favor of Respondents Nos. 1 and 2 is not a registered document, notwithstanding the fact that it concerns an immovable property owned by the Petitioner which was denied by the Petitioner. Respondent No.3 has been identified as the petitioner’s wife by Respondent Nos. 1 and 2 in the suit filed by them in 2013, despite the fact that the petitioner has denied ever seeing or knowing Respondent No. 3. Furthermore, Respondents 1 and 2 enlisted the assistance of Respondent 3 in serving the Petitioner and securing the ex-parte decree against the Petitioner. As a result, the single court upheld the writ petition, setting aside the ex-parte order and accepting the Petitioner’s Application.

JUDGEMENT REVIEWED BY- REETI SHETTY

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