ROSANE Vs. HOUSABAI

JUDGEMENT

(1.) THIS matter has got a checkered history. The litigation has started with institution of O.S. No. 291/1971 by the petitioner herein seeking decree for possession in respect of the suit property. The same was decreed and ultimately it is confirmed by this Court in RSA No. 668/1984. The said decree was executed in Execution Petition No. 136/1984. The said suit was originally filed against Bhagawandas, i.e., husband of the respondent herein. During the pendency of the matter earlier before this Court, Bhagawandas died and the respondent herein was brought on record as his L.R. According to the petitioner, though the possession was handed over in execution petition, the respondent repossessed the suit property taking advantage of the interim order granted in her favour in O.S. No. 80/95 filed by her. In order to get back the possession, the petitioner filed an application in Execution Petition No. 136/1994 requesting the Court to reissue delivery warrant, which came to be dismissed. The said order was questioned by the petitioner in C.R.P. No. 3914/1999 before this Court, which also came to be dismissed by observing that though the petitioner had taken possession of the property legally, she was dispossessed illegally by the respondent. However, this Court kept open the option in favour of the petitioner to file a separate suit once again for possession.

(2.) WHEN the facts stood thus, the petitioner, in the meanwhile filed O.S. No. 449/2009 for possession once again as directed by this Court in C.R.P. No. 3914/1999. In the said suit, the notice was issued to the respondent calling upon her to appear before the trial Court on 21.6.2009. The notice seems to have not been served through registered post. Ultimately the bailiff has taken the notice for service on the respondent. The report of the bailiff dated 9.5.2009 discloses that the respondent has refused the service of notice. Such report of the bailiff was handed over to the trial Court on 28.5.2009. The trial Court accepted such report and proceeded with the suit and ultimately decreed the suit exparte.

(3.) SRI Ramesh Misale, learned advocate appearing for the respondent submits that the Writ Petition may not be maintainable in view of Section 115 of CPC. According to him, Civil Revision Petition is maintainable before this Court. Even assuming that the Civil Revision Petition is maintainable under Section 115 of CPC, the same is maintainable before this Court only (See the judgment in the case of Surya Dev Rai v. Ram Chander Rai & others - : AIR 2003 SC 3044). Such technicality does not change the jurisdiction of this Court. In view of the same, the matter is taken up for final disposal without standing on technicality.