ZAIBUNNISA Vs. RUSHI

JUDGEMENT

(1.) On 18/6/2010 this Court has issued notice for final disposal and accordingly Writ Petition under Articles 226 and 227 of the Constitution of India has been heard finally by issuing Rule and making it returnable forthwith. Challenge is to order passed on 19/11/2009 by the 6th Additional Sessions Judge, Nagpur in Misc. Civil Appeal Nos. 187/2009 and 279/2008. Principal Small Cause Court has vide orders on 14/8/2008 passed below Exh. 25 rejected Respondent's prayer to serve Petitioner no.1 sister on whom the service of suit summons was later on found to be not valid and Appeal No. 279/2008 was directed against it. Small Cause Court had by separate order passed below Ex. 1 on same date dismissed the Suit under Order IX Rule 5 C.P.C. against Petitioner no.1 i.e. Defendant no.1 and Appeal no. 187/2009 questioned it. By common order dated 19/11/2009 both these Appeals came to be allowed.

(2.) Petitioners before this Court are sister and brother against whom the Respondent landlord has filed an eviction suit vide Civil Suit No. 453/2006 on the file of Additional Judge, Small Cause Court, Nagpur for eviction, rent arrears, damages alleging them to be joint tenants. On 20/4/2008, Respondent filed his affidavit of examination in chief and according to whom then there was offer for compromise. Case was ultimately fixed for his cross on 7/8/2008. On that day, a joint application was filed for adjournment and as it was rejected, Respondent landlord entered the witness box. After recording of part of his evidence, it was found that summons was not properly served on sister Defendant no.1 and case was wrongly put at stage of recording of evidence of the parties. He then moved application at Ex. 25 to serve sister again. Said application was heard on 14/8/2008 when rejecting contention of landlord that Order IX Rule 5, was only directory and not available as suit had progressed to the stage of the evidence and hence Order IX Rule 6(2) was relevant, the Small Cause Court dismissed Ex. 25. This was assailed in Appeal No. 279/2008. Later on landlord got knowledge that his suit was also dismissed as against DefendantPetitioner no.1 sister by separate order passed below Ex. 1 on same day. This order below Ex. 1 was then challenged in Appeal 187/2009.

(3.) Appellate Court relied upon the judgment of Hon'ble Apex Court in (Salem Advocates Bar Association vs. Union of India, 2005 AIR(SC) 3353) and found that the view of learned Single Judge of this Court in Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale and others, 2000 AIR(Bom) 307 was not relevant in facts before it. The provisions of Order IX Rule 6(1)(b) CPC are found to be attracted and hence, it found landlord entitled to an opportunity to serve sister Defendant No.1 again. It therefore has allowed both the Appeals.