PRIME BUILDERS Vs. SUMAN R BAGWE AND OTHERS

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) This Notice of Motion is taken out by original Defendant No.2 for setting aside an exparte decree passed against him. The exparte decree was passed on 11 August 2009 against the Applicant herein and two others. The present application is taken out more than four years thereafter. The application is on the ground that writ of summons was not duly served on the Applicant and the delay is sought to be explained on the ground that since this is a case of non service of writ of summons, limitation would commence from the date of knowledge and that knowledge was obtained on 14 December 2013, when the Applicant's advocate, while searching the Website of this Court for Case Status Information for another pending testamentary proceeding i.e. Testamentary Suit No.16 of 2005, pertaining to the same premises as the suit premises, got knowledge of the exparte decree and the Execution Application taken out by the Judgment Creditors in pursuance thereof. The Applicant claims to have taken out the present application within a week of his knowledge.

(3.) Before we assess the merits of this application in the light of several judgments cited at the Bar in support and against the application, a few dates may be noted. The present Suit was originally filed against one Usha Bagwe. The Suit was filed in 1997. The Suit was for specific performance of a Memorandum of Understanding executed between the original Defendant Usha Bagwe and the Plaintiff. Usha Bagwe passed away in October 2001. Thereafter her brother, Ratnakar Bagwe, who was her only surviving legal heir, was brought on record and the necessary amendments were carried out. Ratnakar Bagwe, thereafter, appeared in person at the hearing of one of the miscellaneous proceedings taken out in the present Suit. He, however, chose to remain absent on the next occasion, whereupon the miscellaneous proceeding, namely, Notice of Motion No.3011 of 2000, was allowed. Ratnakar Bagwe passed away during the pendency of the Suit. On the plaintiff's knowledge, said to have gained in October 2005, a Chamber Summons was taken out to bring on record the Defendants herein as legal heirs of Ratnakar Bagwe. The Chamber Summons was duly served on the Defendants. The service was acknowledged by the Applicant herein (proposed Defendant No.2) for himself and on behalf of two other Defendants, namely, proposed Defendant Nos.1 and 3 to the Suit. In the acknowledgment, the Applicant described himself as the Constituted Attorney of Defendant Nos.1 and 3. The Chamber Summons was allowed on 27 June 2006 and the present Defendants were brought on record. The order shows appearance on their behalf in the Chamber Summons. It is an accepted position that the same advocate appeared for these Defendants in the companion testamentary proceedings, namely, Testamentary Suit No.16 of 2005. The impleadment order directed service of amended copy of plaint on the newly added Defendants and filing of Written Statement by the newly added Defendants within a specified time of the service of amended copy of the plaint. After the amendment was carried out, the Plaintiff sought to effect service of writ of summons with amended plaint on the newly added Defendants. Two attempts of such service were made by the Plaintiff. It is not in dispute that all the Defendants reside at the same address at which service was sought to be effected.