BHIVCHANDRA SHANKAR MORE Vs. BALU GANGARAM MORE

JUDGEMENT

(1.) Leave granted.

(2.) This appeal arises out of the judgment dated 20.08.2014 passed by the High Court of Judicature at Bombay in Writ Petition No. 3290 of 2014 in and by which the High Court refused to condone the delay in filing the first appeal challenging the ex-parte decree passed in Regular Civil Suit No. 35 of 2007 dated 04.07.2008.

(3.) Brief facts which led to filing of this appeal are as under:-Respondents-plaintiffs No.1 to 13 filed a suit for partition in Regular Civil Suit No.35 of 2007 before the Joint Civil Judge, Junior Division, Daund seeking partition and separate possession of the suit property. In the said suit, son of defendant No.2 viz. Tanaji received the suit summons on 25.02.2007. According to appellant-defendant, they were in the neighbouring village in search of work and Tanaji did not inform them about the service of suit summons and therefore, they could not appear in the suit for partition. The said suit was decreed ex-parte and preliminary decree for partition was passed on 04.07.2008. On 15.10.2008, appellant and respondents No. 14 and 15 filed an application under Order IX Rule 13 CPC for setting aside the ex-parte decree. After considering the contentions of both the parties, the said application came to be dismissed by the trial court by order dated 06.08.2010. The trial court noted that the appellant and respondents No.14 and 15 are coming up with different reasons for their non-appearance when the suit was called for hearing. The trial court pointed out that though number of amendments were made in the application filed under Order IX Rule 13 CPC, only in the last amendment, the defendants have stated that suit summons was served on the son of applicant No.2 viz. Tanaji. The trial court observed that said Tanaji was an adult and the suit summons served on him was deemed to be an effective service of summons on the defendants.