GASPAR G FURTADO Vs. FILOMENA COTA

JUDGEMENT

(1.) THE petitioner (hereinafter referred to as plaintiff) had filed a suit for damages suffered by him on account of fall of three trees on his water tank. Prior to the fall of the said trees, notice had been given by the plaintiff to the respondents to cut the said trees. The respondents did not take any action and eventually the trees fell on the water tank of the plaintiff.

(2.) IN the suit it appears that written statement was filed without signatures. Subsequently the respondents did not put in appearance and the suit proceeded ex parte. The plaintiff led evidence ex parte and the suit was decreed on 2nd August, 1996 to the tune of Rs. 12,000/ -. The respondents 4, 5 and 7 who are defendants 4, 5 and 7 had filed an application for setting aside the ex parte decree on 6th August, 1997 and alongwith that application they filed an application for condonation of delay, which was granted. Respondent No. 1/defendant No. 1 had also filed an application for setting aside the decree, but, it was rejected by the trial Court and the defendant No. 1 has not challenged the same. The application filed by the respondents 4, 5 and 7 was granted by the trial Court vide impugned order, which is subject matter of challenge in this revision.

(3.) LEARNED advocate Shri Godinho, appearing on behalf of the plaintiff, has urged that the trial Court has proceeded on the footing that the service which was effected on the female member is not a valid service and the bailiff in his report had not stated that the respondents 4, 5 and 7 were not likely to come back within a reasonable time and that Smt. Filomena Cota was their agent. He took me through Order V, Rule 15 as amended with effect from 1st April 1987 by Notification of the High Court of Judicature at Bombay No. P. 0102/77 insofar as Goa is concerned. The substituted Order V, Rule 15 insofar as it is applicable to Goa is as under:-15. When the defendant cannot for any reason be personally served and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family of the defendant who is residing with him. Explanation:- A servant is not a member of the family within the meaning of this rule. "