YESHWANT GOVIND SHIVKAR Vs. BHASKAR CHAVAN

JUDGEMENT

(1.) 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 ex parte decree.

(2.) The original petitioner who is now represented by his legal heirs is the landlord. The original respondent who is now represented by his legal heirs was the tenant of the petitioner in respect of a room bearing No. 10 at 106/D, Hirabai Govind Shivkar Niwas, Shriram Galli, Worli Koliwada, Mumbai-400025, (for short "the suit premises")- The petitioner filed a suit bearing RAE and R Suit No. 729/1667 of 1995 against the respondent for possession. 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 (for short "the Code"). Since the respondent did not appear, the Court passed an ex parte 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. Accordingly the petitioner took out a notice for execution which also appears to have been served on the respondent by substituted service under Order 5, Rule 20 of the Code. The respondent did not appear and therefore the execution proceeding was proceeded with ex parte and the petitioner recovered possession of the suit premises from the respondent on 26th June, 2000. Immediately thereafter on 29th June, 2000, the respondent applied for setting aside of the ex parte decree by making an application under Order 9, Rule 13 of the Code. By an order dated 25th July, 2000, the application was dismissed by the trial Court. However, the Civil Appeal No. 671 of 2000 was allowed by the appellate Bench of the Small Causes Court by its order dated 24th April, 2001. That order is impugned in this petition.

(3.) Learned counsel for the respondent raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioner has an alternate adequate and efficacious remedy by way of revision under section 115 of the Code and, therefore, the petition should not be entertained. The petition has been filed in the year 2000 and has been admitted after hearing the respondent by an order dated 16th August, 2001. At the stage of admission, the respondent did not raise the objection about the availability of alternate remedy and/or about maintainability of the petition. Since the petition has been admitted 10 years ago without any objection by the respondent about the availability of alternative remedy, the respondent cannot be allowed to raise the objection at this stage.