BANSRAJ MISHRA Vs. HIRALAL V MERCHANT

JUDGEMENT

(1.) This application arises from the judgment and order dated 20th July, 1971 passed by the learned Judge of the Court of Small Causes, Bombay, on the notice taken out by the petitioner (original defendant) for setting aside the ex parte decree passed against him on 17th December, 1968. The 2nd opponent is an Advocate of this Court. However, service has not been effected upon him and the present Civil Revision Application is not pressed against him.

(2.) The petitioner (original defendant) was in occupation of certain premises, to with a godown admeasuring 50 x 10 situate at Worli under a leave and licence granted to him by the 1st opponent (original plaintiff). In 1967, the 1st opponent filed an Ejectment Application No. 594/1967 in the Court of Small Causes at Bombay, against the petitioner in respect of this godown. On 10th December, 1967, the 1st opponent obtained an order for substituted service on the ground that the petitioner was not available and his whereabouts were not known and that he was avoiding service of the summons when the same was sought to be served on him on 6th, 7th and 14th November, 1967. The summons was thereafter sent by registered post, after the Court passed the order for substituted service. The registered packet was returned by the postal authorities with the endorsement Not found during delivery time . It is alleged that the same was also affixed to a conspicuous parts of the premises. On 17th December, 1968, the 1st opponent obtained an ex parte decree against the petitioner. This decree provides for notice to be given to the petitioner before execution. On 7th January, 1969, the 1st respondent made an application to the Court to issue notice to show cause why the ex parte decree should not be executed. In that application it was stated that the petitioner had vacated the suit premises and his where abouts were not known. The registered packet containing the notice was returned by the postal authorities with the endorsement Incomplete address . On 5th November, 1969, the ex parte decree was executed. On 6th November, 1969 the petitioner applied to the Court of Small Causes, by Miscellaneous Notice No. 2045 of 1969 for setting aside the ex parte decree, for restoration of possession, for an injunction restraining that 1st opponent from parting with possession of the premises, and for issue of notice to the Advocate who was made a respondent to show cause who prosecution should not be launched against him and the 1st opponent for making false applications to the Court and for obtaining a decree by fraud and for levying false and fraudulent execution thereof on 5th November, 1969. This application was opposed by the respondents. The learned trial Judge framed the following points for consideration.

(3.) Being aggrieved by that order, the petitioner has filed the present application.