BALKRISHNA LAXMIDAS KOTHARI Vs. SURESHKUMAR KANTILAL PATEL

JUDGEMENT

(1.) HEARD the learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondent who is the first Defendant in a suit filed by the Petitioner in the Court of Small Causes.

(2.) THE suit was filed by the Petitioner describing Respondent herein as a tenant in respect of the suit premises. The allegation is regarding default in payment of rent and subletting. Another allegation is that the Respondent has acquired suitable accommodation in Surat and he has permanently shifted to Surat in the year 1997. Lastly, it is also alleged that the Petitioner is entitled to a decree on the ground of non user for a period of six months and more prior to the date of institution of the suit. An Ex -parte decree was passed in the suit. An Application was made by the Respondent for setting aside the ex -parte decree. The Trial Court rejected the said Application. In the Appeal preferred by the Respondent before the Appeal Bench of the Court of Small Causes, the decree has been set aside. The Appellate Court has also ordered restitution.

(3.) THE averments made in the plaint proceed on the footing that the Respondent had already shifted to Surat before the suit was filed. The Application for substituted service made by the Petitioner proceeds on the allegation that an attempt was made to serve the summons at the address of the suit premises in Mumbai and as the suit premises was found to be locked, the Respondent is evading the service of the summons. In fact, the case of the Petitioner himself was that the Respondent was not residing in the suit premises and according to his own case, he had already shifted to Surat. Therefore, considering the averments made in the plaint, the allegation of the Petitioner that the Respondent was evading the service of the suit summons could not have been accepted especially when service was attempted only at the address of the suit premises. Therefore, the finding of the Appeal Bench that there is no legal or valid service of suit summons is perfectly justified. In fact, in this case, if the Petitioner was not aware of the exact address of the Respondent at Surat, he could have always applied for a publication of summons in a Newspaper having a wide circulation at Surat. Once, it is found that there was no proper and legal service of summons, the mere endorsement made on the rent receipt is not sufficient to hold that there was a valid service of summons. Therefore, the order of the Trial Court permitting substituted service by Registered Post A.D. at the address of the suit premises was not legal as according to the Petitioner, the Respondent was residing at Surat. Moreover, the notice issued by the post returned with the remark "unclaimed" is not a good service as held by this Court in the case of The New India Assurance Company Ltd. V/s. Smt. Nasibunnisa Mohd. Issar Khan and Others [Civil Application No. 1979 of 2011 in First Appeal St. No. 13185 of 2011 decided on 14th October, 2011]. Hence, the order setting aside the ex -parte decree of eviction calls for no interference.