Case Note & Summary
The case involves a landlord-tenant dispute over a room in Mumbai. The original petitioner (landlord) filed a suit for possession against the original respondent (tenant) in the Small Causes Court. The suit summons was served on the tenant by substituted service under Order 5 Rule 20 of the Code of Civil Procedure, 1908, as personal service was not reasonably practicable. The tenant did not appear, and an exparte decree was passed on 28 October 1999, with a direction that it shall not be executed until notice of execution petition was served on the tenant. The execution notice was also served by substituted service, and the tenant again did not appear. The tenant then filed Misc. Notice No. 440 of 2000 seeking to set aside the exparte decree. The Single Judge of the Small Causes Court dismissed the application, but the Appellate Bench allowed the appeal and set aside the exparte decree. The landlord filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court. The High Court examined the validity of the substituted service and the grounds for setting aside the exparte decree. The court noted that the trial court had ordered substituted service after being satisfied that personal service was not reasonably practicable. The tenant's mere denial of service without evidence was insufficient. The High Court held that the tenant failed to show good cause for non-appearance, and the Appellate Bench erred in setting aside the decree. The petition was allowed, the order of the Appellate Bench was quashed, and the exparte decree was restored.
Headnote
A) Civil Procedure - Substituted Service - Order 5 Rule 20 CPC - Validity of Substituted Service - The court examined whether substituted service under Order 5 Rule 20 of the Code of Civil Procedure, 1908 was validly effected on the tenant. The landlord had obtained an exparte decree after substituted service. The tenant sought to set aside the decree. The High Court held that the substituted service was valid as the trial court had ordered it after being satisfied that personal service was not reasonably practicable. The tenant's mere denial of service without evidence was insufficient. (Paras 1-5)
B) Civil Procedure - Setting Aside Exparte Decree - Order 9 Rule 13 CPC - Sufficient Cause - The court considered the grounds for setting aside an exparte decree. The tenant had not appeared despite substituted service and later claimed no knowledge. The High Court held that the tenant failed to show good cause for non-appearance. The Appellate Bench erred in setting aside the decree without proper justification. The petition under Article 227 was allowed, restoring the exparte decree. (Paras 1-5)
Issue of Consideration
Whether the Appellate Bench of the Small Causes Court was justified in setting aside the exparte decree passed against the tenant when the tenant failed to show good cause for non-appearance and the service was effected by substituted service under Order 5 Rule 20 CPC.
Final Decision
The High Court allowed the writ petition, quashed the order of the Appellate Bench of the Small Causes Court dated 24th April 2001, and restored the exparte decree dated 28th October 1999 passed by the Single Judge.
Law Points
- Substituted service under Order 5 Rule 20 CPC is valid if personal service is not reasonably practicable
- Exparte decree can be set aside only if defendant shows good cause for non-appearance
- Burden on applicant seeking setting aside of exparte decree to prove sufficient cause
Case Details
2011 LawText (BOM) (06) 14
Writ Petition No. 3228 of 2001
Mr. P.G. Lad for the petitioner, Mr. Ashutosh Gole for the respondent
Yeshwant Govind Shivkar (since deceased through legal heirs: Devayani Yeshwant Shivkar, Satyajeet Yeshwant Shivkar, Vaibhav Yeshwant Shivkar)
Bhaskar Chavan (since deceased through legal heirs: Smt. Laxmibai Chavan, Smt. Suvarna Bhaskar Chavan, Vikrant Bhaskar Chavan, Pawant Bhaskar Chavan)
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging the order of the Appellate Bench of the Small Causes Court setting aside an exparte decree in a landlord-tenant possession suit.
Remedy Sought
The petitioner (landlord) sought to quash the order of the Appellate Bench and restore the exparte decree of possession.
Filing Reason
The Appellate Bench set aside the exparte decree passed in favor of the landlord, which the landlord contended was erroneous as the tenant had not shown good cause for non-appearance.
Previous Decisions
The trial court (Single Judge of Small Causes Court) dismissed the tenant's application to set aside the exparte decree. The Appellate Bench allowed the appeal and set aside the exparte decree.
Issues
Whether the substituted service under Order 5 Rule 20 CPC was validly effected on the tenant?
Whether the tenant showed sufficient cause for non-appearance to warrant setting aside the exparte decree under Order 9 Rule 13 CPC?
Submissions/Arguments
Petitioner (landlord) argued that substituted service was validly ordered by the trial court and the tenant failed to appear despite service, thus the exparte decree was rightly passed.
Respondent (tenant) argued that the service was not proper and he had no knowledge of the suit, hence the exparte decree should be set aside.
Ratio Decidendi
Substituted service under Order 5 Rule 20 CPC is valid if the court is satisfied that personal service is not reasonably practicable. A defendant seeking to set aside an exparte decree must show good cause for non-appearance; mere denial of service without evidence is insufficient.
Judgment Excerpts
This petition under Article 227 of the Constitution of India is directed against the judgment and order dated 24th April 2001 passed by the Appellate Bench of the Small Causes Court, Mumbai in Appeal No. 671 of 2000 setting aside the judgment and order of the learned Single Judge and thereby allowing Misc. Notice No. 440 of 2000 taken out by the respondent for setting aside an exparte decree.
The suit summons was served on the respondent not personally but by substituted service under Order 5 Rule 20 of the Code of Civil Procedure.
Since the respondent did not appear, the Court passed an exparte decree on 28th October 1999 but with a direction that it shall not be executed until the notice of execution petition was served on the respondent.
Procedural History
The landlord filed RAE & R Suit No. 729/1667 of 1995 for possession. Summons served by substituted service under Order 5 Rule 20 CPC. Exparte decree passed on 28-10-1999. Execution notice also served by substituted service. Tenant filed Misc. Notice No. 440 of 2000 to set aside exparte decree. Single Judge dismissed the notice. Tenant appealed to Appellate Bench which allowed the appeal on 24-04-2001. Landlord filed Writ Petition No. 3228 of 2001 in Bombay High Court under Article 227. High Court allowed the petition on 07-06-2011.
Acts & Sections
- Code of Civil Procedure, 1908: Order 5 Rule 20, Order 9 Rule 13
- Constitution of India: Article 227
