Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8010 OF 2016
Mediwal Nagendra Dastgi
(Deceased) heirs:-
1a. Sugamma wd/o Nagendra Dastgir & Ors. …Petitioners
Mr. P. J. Thorat, for the Petitioners.
Ms. Pranita Saboo i/b Mr. A. C. Mahimkar, for the Respondent
No.1.
JUDGMENT
1. Heard Mr. Thorat, learned Counsel appearing for the Petitioners and Ms. Saboo, learned Counsel appearing for the
2. The challenge in this Writ Petition is to the Judgment and Order dated 6th May 2016 passed by the learned Appellate Bench of the Small Causes Court, Mumbai in Misc. Appeal No.130 of 2014 in MARJI Application No.809 of 2013 and the Judgment and Order dated 25th February 2014 passed by the learned Judge, Small Causes Court, Mumbai in MARJI Application No.809 of 2013 in R.A.E. Suit No.3590 of 1990.
3. The learned Trial Court decreed the said Suit filed by the Respondents by Judgment and Decree dated 20th December 2012. The Petitioner filed Marji Application No.809 of 2013 seeking setting aside the Judgment and Decree dated 20th December 2012 on the ground that the decree passed is ex parte decree. The learned Trial Court dismissed the said Marji Application by Order dated 25th February 2014 inter alia on the ground that said Judgment and Decree dated 20th December 2012 is not an exparte decree but decree passed under Order XVII, Rule 2 of the Code of Civil Procedure, 1908 (“CPC”). The said Order of learned Trial Court is confirmed by the learned Appellate Court. Both the Courts also held that inspite of service of notice on multiple occasions, after restoration of the suit, the Defendants failed to appear in the suit and the Defendants have not proved any sufficient cause for non-appearance.
4. Before setting out the contentions raised by the learned Counsel appearing for the respective parties and consideration of the same, it is necessary to set out the relevant factual aspect. The relevant factual aspects are as under: i. The RAE Suit No.3590 of 1990 has been filed by the Respondents/Plaintiffs- Kshtriya Dnyati Sabha, a registered Public Trust under the provisions of the Bombay Public Trust Act, 1950 and the Trustees of the said Trust against 9 Defendants i.e. persons from the same family i.e. Dastgir family who are the heirs and legal representatives of deceased original tenant - Mediwal Nagendra Dastgir. All the Defendants were represented in the suit by the same Advocate i.e. Advocate M. J. Virjee. All the Defendants have filed their common written statement on 16th March 1992. ii. The issues were framed in the said Suit on 27th January
1998. iii. The evidence of the Plaintiffs i.e. Vinod Mastkar (PW-1) and Vijaya Shoof (PW-2) was completed on 28th May 2002. Thereafter, evidence of the Defendants - Sadashiv Madhiwal (DW-1) i.e. present Petitioner No.2 was closed on 7th October
2002. iv. In the meanwhile, after the Plaintiff and Defendants led the evidence and evidence closer pursis has been filed, subsequently, the said Suit was dismissed for default on 9th February 2005. Thus, before the dismissal of the Suit for default both the parties have led their respective evidence. v. The restoration application of the said suit filed by the Respondents-Plaintiffs was dismissed. The Defendants were served with the notice of restoration application, however, they failed to remain present. The appeal filed challenging the dismissal of restoration application was allowed. The present Petitioners i.e. Defendants/ Respondents in said Appeal, were served of notice of said Appeal, however, they failed to appear. Therefore, the learned Appellate Court although set aside order of learned Judge, Small Causes Court, Mumbai of dismissing restoration application of the suit and consequently restored the suit, directed learned Trial Court to issue notice to the Defendants. vi. After the restoration of the Suit, in view of the order passed by the learned Appellate Court, the learned Trial Court issued notices to all the parties to the Suit directing them to appear on 22nd November 2011. Bailiff report shows that the Defendant No.9 personally accepted the notice and on behalf of Defendant Nos. 2 to 8 one Ramesh Mediwal who is near relative of the present Petitioners, had accepted the notice by putting signature on the notices. The Baillif report records that the Defendant No.1 has passed away. vii.The Respondents filed application on 22nd November 2011 for carrying out amendment to the Plaint by deleting old trustees and adding new trustees. Notice of amendment application taken out for deleting old trustees and addition of new trustees was served on Defendant No. 6 to 9, on Defendant No. 2 to 4 through their brother, and notice was pasted in respect of Defendant No.5. This application was allowed on 21st June 2012. viii. On 29th February 2012 the Respondents filed Application for bringing heirs and legal representatives of deceased Defendant No.1 on record and same was allowed on 5th May 2012. The Bailiff Report (Exhibit-55) concerning service on Defendant Nos.1(a) to 1(c) records that suit summons was served on Defendant No.1(a) i.e. mother of the Defendant Nos.1(b) and 1(c) and she has accepted service on behalf of Defendant Nos.1(b) and 1(c) also. As per the Petitioners’ contention in the said application only the Defendant No. 1(a) was served and the Defendant Nos. 1(b) and 1(c) were not served in view of the Bombay Amendment of Order 5, Rule 15, which specifically provides that service on male members of the Defendants’ family is a good service. ix. On 20th December 2012, the learned Trial Court decreed the suit directing the Petitioners to handover the possession of the suit premises to the Respondents. As recorded by the learned Appellate Court, roznama records that, as the Defendants failed to appear although served on several occasions the learned Trial Court heard the arguments advanced by the learned Advocate for the Plaintiffs and posted the matter for judgment to 20th December 2012. Accordingly, the learned Trial Judge decided the suit by its judgment and decree on 20th x. On 6th December 2013, the Petitioners filed Marji Application No.809 of 2013 before the learned Small Causes Court under Order IX Rule 13 of CPC for setting aside exparte decree dated 20th xi. The learned Trial Court dismissed the said Marji Application by Order dated 25th February 2014 inter alia on the ground that the Defendants have not proved any sufficient cause for non-appearance and also that said Judgment and Decree dated 20th December 2012 is not the ex-parte decree but decree passed under Order XVII, Rule 2 of the CPC. xii.Miscellaneous Appeal No.130 of 2014 was filed by the Petitioners against the order dated 25th February 2014 before the learned Appellate Bench of the Small Causes Court, Mumbai and the same was dismissed by the learned Appellate Bench of the Small Causes Court, Mumbai, by Judgment and Decree dated 12th October 2015.
5. The main contention raised by Mr. Thorat, learned Counsel appearing for the Petitioners is that the service on Defendant No.1(a) for Defendant Nos.1(b) and 1(c) of application to bring on record, heirs of the deceased Respondent No.1 is not good service as the Defendant No.1(a) is the mother of the Defendant Nos.1(b) and 1(c) and in view of the Bombay Amendment of Order 5, Rule 15, service on male members of the Defendants’ family is good service and resultantly service on mother of Defendant Nos.1(b) and Defendant No.1(c) is not good service as far as Defendant Nos. 1(b) and 1(c) are concerned.. He therefore, submits that the interference in the impugned orders is warranted.
6. Ms. Saboo, learned Counsel submits that all the Defendants were represented by same Advocate Mr. Virjee and his appearance is shown by the learned Trial Court and therefore, the decree is not ex-parte decree. Learned Counsel submits that both the Courts have concurrently held that inspite of service of notice after restoration of the suit on multiple occasions the Defendants failed to appear in the suit and the Defendants have not proved any sufficient cause for non-appearance. She further submits that in any case, both the Courts have rightly held that the decree is not ex-parte decree and decree passed is at the most covered by Order XVII, Rule 2 of C.P.C. She relies on the decision of the Supreme Court in the case of B. Janakiramaiah Chetty v. A.K. Parthasarthi[1] and more particularly, paragraph Nos.[8] to 10 of the same. She further submits that it is settled principle of law that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution of India is limited “to seeing that an inferior Court of Tribunal functions within the limits of its authority”, and not to correct an error of law. In exercising this supervisory power, the High Court does not act as an Appellate Court or Tribunal. To support said contention she relies on the decision of the Supreme Court in the case of Mohd. Yunus vs. Mohd. Mustaqim & Ors.[2] and more particularly, paragraph 7 of the same.
7. Before consideration of the rival contentions and deciding the same, it is necessary to set out herein below the concurrent findings recorded by both the learned Trial Court and learned Appellate Court. They are as under:- 1(2003) 5 SCC 641 2(1983) 4 SCC 566
(i) Inspite of service of notice after restoration of the suit on multiple occasions, the Defendants failed to appear in the suit
(ii) The Defendants have not proved any sufficient cause for their non-appearance.
(iii) Said Judgment and Decree dated 20th December 2012
8. In view of above concurrent findings, the observations made in Paragraph Nos.15 to 18 in order dated 12th October 2015 passed by the learned Appellate Bench of Small Causes Court, Mumbai while dismissing the appeal filed by the present Petitioners are relevant and the same reads as under: “15. In order to resolve the controversy, it is first necessary have a reference to the facts involved in the original suit. Suffice to say that the said suit was recovery of possession of the suit premises from the defendants under Maharashtra Rent Control Act, 1999. In response to the suit summons, all the defendants appeared in the said suit and also. filed their written statement. Issues came to be framed on 27.01.1998. Original Plaintiff No.5 and 9 examined themselves as (PW- 1 & 2). The defendants cross-examined them. Thereafter the plaintiff closed their evidence. Defendant No.2 examined himself on behalf of all the defendants as (DW-1) and he was crossexamined by the plaintiffs. Thereafter all the defendants closed their evidence. Finally, the matter was posted for final argument to 16.10.2002.
16. Rozanama of the suit proceeding further shows that thereafter matter was adjourned from time to time and finally it was kept on 09.02.2005. However, on said date, defendant No.3 and his advocate were present but as the plaintiffs failed to appear, the said suit came to be dismissed for default. Thereafter, the plaintiffs took out Misc.Notice No.176 of 2005 under Order IX Rule IX of the Code of Civil Procedure, 1908 for restoration of the said suit, but the said notice came to be dismissed by the learned Trial Judge by its order dated 04.02.2006. Being aggrieved by it, the plaintiffs preferred Misc. Appeal No.513 of 2008, which came to be allowed by the Appellate Court by its judgment and order dated 01.08.2011 and the said suit came to be restored to its original file. Copy of the said judgment and order passed in Appeal No.513 of 2008 shows that the Appellate Court, while restoring the suit directed the learned Trial Judge to issue notices to all the defendants. Accordingly, as per the directions of the Hon'ble Appellate Court, the learned Trial Judge issued notices to both the parties on Court motion by passing specific order dated 16.09.2011.
17. The said notices along with bailiff report dated 18.11.2011 are placed on record vide Exh. 44 colly. They show that the said notices came to be served on all the plaintiffs and also on all the defendants except defendant No.1. The bailiff report dated 18.11.2011 clearly shows that the defendant no.9 in person has accepted the notice for himself and one Mr. Ramesh Mediwal who is the nearest relative has accepted the notices on behalf of defendant Nos. 2 to 8 by putting his signature on it. The bailiff also came to know that the defendant No. 1 has expired. Even, the notice of Misc. Notice No.176 of 2005, which was taken out by the plaintiffs for restoration of the suit was also served on all the defendants. As per the bailiff's report dated 18.8.2015, even the notice of the Appellate Court in Appeal No.513 of 2008 also came to be served on all the defendants, but, they failed to appear. Therefore, it is clear that the defendant Nos. 2 to 9 were served with notices and they were aware of the original suit. However, the defendants choose not to appear.
18. Thereafter, the plaintiffs took out amendment application for bringing the new trustees on record by deleting the names of erstwhile trustees. Even the notices of the said application was also issued to all the defendants. The said notice was served on defendant No. 6 to 9 personally. The notice of defendant No. 2 to 4 came to be served on their brother and in respect of defendant no.5, it came to be pasted. The bailiff report to that effect is placed on record. Now this is the second time after the restoration of the suit, the defendants are made aware of the suit but non of the defendants appeared in the suit.” (Emphasis added) Thus, the above discussion clearly shows that the Defendants were served after restoration of the Suit on multiple occasions, however, still none has appeared for the Defendants in the said Suit after restoration.
9. Thus, various observations of the learned trial Court and the learned Appellate Court including above observations clearly shows that the concurrent findings recorded by both the Courts to the effect that inspite of service of notice after restoration of the suit on multiple occasions the Defendants failed to appear in the suit and the Defendants have not proved any sufficient cause for non-appearance are the findings recorded on the basis of the material on record and therefore, the same does not require any interference in the writ jurisdiction of this Court.
10. As already noted herein above, the main contention raised by Mr. Thorat, learned Counsel appearing for the Petitioners that the service on Defendant No.1(a) for Defendant Nos.1(b) and 1(c) of application to bring on record, heirs of the deceased Respondent No.1 is not good service as the Defendant No.1(a) is the mother of the Defendant Nos.1(b) and 1(c) and in view of the Bombay Amendment of Order 5, Rule 15, which specially provides that service on male members of the Defendants’ family is good service, the said service is not good service as far as Defendant Nos. 1(b) and 1(c) are concerned.
11. To appreciate the said contention, it is necessary to set out the Bombay Amendment of Order 5, Rule 15, which reads a under: “[Bombay].— For the existing rule 15 and its marginal note, substitute the following as rule 15 and marginal note:— "15. Where service may be on male member of defendant's family.— 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 male 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.”—(1-10-1983.”
12. The Order 5 Rule 15 of CPC as per the Central Legislation is as under:- “15. Where service may be on an adult member of defendant's family.— Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.”
13. Thus it is clear that the Central Legislation provides that service may be made on any adult family member of the family, whether male or female, who is residing with him, whereas the Bombay Amendment provides that service may be made on any adult male member of the family. Thus it is clear that there is conflict between the Central Legislation and the Bombay Amendment.
14. In view of the above conflict between the Central Legislation and the Bombay Amendment, decision of the Division Bench of this Court in the matter between Rajkumar Sampatraoji Kuthe v. State of Maharashtra 3, is very relevant wherein, in Paragraph Nos.[3] to 6, it has been held as follows:- “3. In this regard, a reference may be made to section 16 to the Code of Civil Procedure (Amendment) Act, 2002, amending the Code of Civil Procedure 1908. Section 16(1) which is relevant, reads as follows: “16. Repeal and savings. (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.” We find that the amendment made by Bombay High Court before the enactment of the Amendment Act, 2002 is inconsistent with the principal Act. We find that even the earlier amending Act namely Code of Civil Procedure (Amendment) Act, 1999 contained a provision identical to section 16 of the 2002 Act, reproduced supra. That provision, namely section 32 of the Code of Civil Procedure (Amendment) Act, 1999, reads as follows: “32. Repeal and savings.— (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.” The effect of the Repeal and Savings clause contained in the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002, is clearly to negate any amendment made by a State Legislature or a High Court, which is inconsistent with the principal Act for the obvious purpose of brining about uniformity in the Code of Civil Procedure throughout the Country.
4. Thus the restrictions placed by the Bombay Amendment that service of summons may be made only on an adult male member of the family residing with the defendant is inconsistent with Order V, Rule 15 of the Code of Civil Procedure, 1908, which permits service to be made on any adult male member of the family, whether male or female and must, therefore, give way to the provisions of the principal Act as enacted by the Parliament.
5. In Ganpat Giri v. IInd Additional District Judge, Badia; (1986) 1 SCC 615: AIR 1986 SC 589 the Supreme Court, in a similar situation, observed as follows: “10. It is thus seen that even though R. 72 was not amended by the Amending Act its retention in the form in which it was in the Code had been recommended by the Law Commission for the reasons given by it. Now reverting to S. 97 (1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to R. 72 by the Amending Act, S. 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of S. 97 (1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in subsec. (2) of S. 97. Sub-Sec. (3) of S. 97 provides that save as otherwise provided in sub-sec. (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-sec. (3) of S. 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to sub-sec. (2) of S. 97.”
6. In view of above, the subordinate courts are directed to ignore the restrictions contained in Order V, Rule 15 of the Code of Civil Procedure, as amended by the Bombay High Court with effect from 1-10-1983, which requires service to be done only on adult male member of the family and instead follow Rule 15 of Order V of Code of Civil Procedure 1908 as enacted by Parliament, which reads as follows: “15. Where service may be on an adult member of defendant's family.— Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation.— A servant is not a member of the family within the meaning of this rule.” Order accordingly.”
15. The Division Bench of this Court has held that the effect of the Repeal and Savings clause contained in the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002, is clearly to negate any amendment made by a State Legislature or a High Court, which is inconsistent with the principal Act for the purpose of brining about uniformity in the Code of Civil Procedure throughout the Country. The Division Bench further observed that the restrictions placed by the Bombay Amendment that service of summons may be made only on an adult male member of the family residing with the defendant is inconsistent with Order V, Rule 15 of the Code of Civil Procedure, 1908, which permits service to be made on any adult male member of the family, whether male or female and must, therefore, give way to the provisions of the principal Act as enacted by the Parliament. In view of this discussion, the Division Bench of this Court specifically directed all the Courts in Maharashtra to ignore the restrictions contained in Order V, Rule 15 of the Code of Civil Procedure, as amended by the Bombay High Court with effect from 1-10-1983, which requires service to be done only on adult male member of the family and instead follow Rule 15 of Order V of Code of Civil Procedure 1908 as enacted by Parliament.
16. Thus, in view of the law laid down by the Division Bench there is no substance in the contention raised by Mr. Thorat, learned Counsel appearing for the Petitioners.
17. It is significant to note that in addition to the above findings, both the Courts have held that the decree is not ex-parte decree in view of the provision of Order XVII Rule 2 of CPC. Order XVII Rule 2 of CPC reads as under:- “2. Procedure if parties fail to appear on day fixed.— Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. [Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.]”
18. The above Explanation to Order XVII Rule 2 has been inserted by amendment by Act 104 of 1976 which has come into effect from 1st February 1977. Statement of Objects and Reasons for adding above explanation to Order XII Rule 2 of C.P.C. are as follows:- “Objects and Reasons. - Clause 71 – Sub-clause (ii).- Rule 2 provides for the procedure to be adopted where parties fail to appear on a day fixed. At present three courses are open to the Court, namely:- (a) to act under Order IX, though it is not bound to do so; (b) to grant further adjournment; or
(c) to make such other order as it deems fit.
The words “such other order” have been differently interpreted by different High Courts. In view of the obscurity of the present position, a new Explanation is being added to the rule to make the position clear by empowering the Court to proceed with a case even in the absence of a party where evidence or a substantial portion of the evidence of such party has already been recorded. [Statement of Objects and Reasons (Bill) – Gazette of India, Ext., dt. 8-4-1974, Pt. II, S.2, p.319.]”
19. Thus the intention of the legislature in adding said Explanation to Order XVII Rule 2 is very clear. The said explanation is added for empowering the Court to proceed with a case even in absence of party where evidence or substantial portion of evidence of such party has already been recorded. Thus, the explanation to Order XVII Rule 2 is very clear which provides that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.
20. The Supreme Court in the case of B. Janakiramaiah Chetty (supra) in paragraph 8 to 10 has held as under: “8. The Explanation permits the court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that: (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and
(c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are “proceed with the case”. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not.
9. In Rule 2, the expression used is “make such order as it thinks fit”, as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.
10. The crucial expression in the Explanation is “where the evidence or a substantial portion of the evidence of a party”. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision.”
21. Thus, the Supreme Court has held that the Explanation permits the Court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. The provision itself shows, discretionary power given to the court is to be exercised in a given circumstance.
22. The Supreme Court has held that the Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. The crucial expression in the Explanation is “where the evidence or a substantial portion of the evidence of a party”. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect.
23. In the present case, admittedly, the issues were framed in the said Suit on 27th January 1998. The evidence of the Plaintiffs i.e. Vinod Mastkar (PW-1) and Vijaya Shoof (PW-2) was completed on 28th May 2002. Thereafter, evidence of the Defendants - Sadashiv Madhiwal (DW-1) i.e. present Petitioner No.2 was closed on 7th October 2002. In the meanwhile, after the Plaintiff and Defendants led the evidence and evidence closer pursis has been filed, subsequently, the said Suit was dismissed for default on 9th February 2005. Thus, before the dismissal of the Suit for default both the parties have led their respective evidence. The material on record clearly shows that all the Defendants were served before and after restoration of the suit on number of occasions. The learned Trial Court issued notice to all the parties to the Suit directing them to appear on 22nd November 2011 after the restoration of the Suit. Bailiff report shows that the Defendant No.9 personally accepted the notice and on behalf of Defendant Nos. 2 to 8 one Ramesh Mediwal who is near relative of the present Petitioners, had accepted the notice by putting signature on the notices. The Baillif report records that the Defendant No.1 has passed away. The Respondents filed application on 22nd November 2011 for carrying out amendment to the Plaint by deleting old trustees and adding new trustees. Notice of amendment application taken out for deleting old trustees and addition of new trustees was served on Defendant No. 6 to 9, on Defendant No. 2 to 4 through their brother, and notice was pasted in respect of Defendant No.5. This application was allowed on 21st June 2012. On 29th February 2012 the Respondents filed Application for bringing heirs and legal representatives of deceased Defendant No.1 on record and same was allowed on 5th May 2012. As per the Petitioners’ contention in the said application only the Defendant No. 1(a) was served and the Defendant Nos. 1(b) and 1(c) were not served in view of bailiff’s report(Exhibit-55). The said Bailiff Report (Exhibit-55) concerning service of Defendant Nos.1(a) to 1(c) records that suit summons was served on Defendant No.1(a) i.e. mother of the Defendant Nos.1(b) and 1(c) and she has accepted service on behalf of Defendant Nos.1(b) and 1(c) also. The Defendant No.1(a) is the mother of the Defendant No.1(b) and Defendant No.1(c). As already by giving detailed reasons it has been recorded that the said service on the Defendant No.1(a)-mother who accepted service on behalf of her sons i.e. Defendant Nos.1(b) and Defendant No.1(c) is good service. Therefore, it is clear that the defendant Nos. 2 to 9 and the Defendant Nos. 1(a) to 1(c) were served with notices and they were aware of the suit. However, they chose not to appear. Thus, no interference in the impugned Judgment and Orders is warranted in the facts and circumstances.
24. One more aspect which is required to be taken into consideration is that the Bailiff report being Exhibit-55 regarding service of suit summons upon the Defendant Nos.1(a) to 1(c) was not to be found in the record and the same was not traceable. The learned Appellate Court directed to the Registrar of the Small Causes Court to enquire into the conduct of the concerned staff member having custody of the proceeding at the relevant time and submit report to the Appellate Court and immediately on the very next day of issuance of notice to the concerned clerk, she handed over missing report at Exhibit-55 to the Registrar of the Small Causes Court. Thus, it is obvious that the said report was missing at the instance of the present Petitioners as the said report would have established that the Defendant Nos.1(a) to 1(c) were served. This conduct of the Petitioners is very relevant as the impugned orders are challenged by filing Writ Petition under Article 227 of the Constitution of India. The relevant observations concerning this aspect of the learned Appellate Court are to be found in Paragraph Nos.15 and 16 of the impugned Order of the learned Appellate Court which is reproduced herein below:- “15. So far as this aspect is considered, admittedly, the report Exhibit 55 regarding the service of Suit summons upon all these Defendant Nos.l(a) to 1(c) was not on record, though, it was noted in the proceeding that the Suit summons is served. In absence of document on record the Learned Trial Judge has relied upon the noting in the proceeding and after considering almost all the attending circumstances and the very conduct of the Advocate for the Defendants held that the Suit summons are served upon all the Defendants, but, specifically and certainly the findings about report of service of Suit summons was not recorded by him. Obviously, for the reason that it was missing.
16. After concluding the hearing this matter and after going through the record of the Suit proceeding, we also found that there is reference of the service of the Suit summons upon the Defendant Nos.1(b) and 1(c) but report of Bailiff was not appearing on record. By that time this Court has directed the Registrar of this Court to enquire in this regard by issuing Notice to the concern staff members having custody of the proceeding at the relevant time and directed him to enquire and report within given period. Accordingly, Registrar issued Notice to the concerned clerk who at the very next day of issuance of Notice/Memo to her handed over the missing report Exhibit 55 to the Registrar of this Court who in turn submitted before this Court, along with explanation of clerk concerned and her report. In this way, missing report Exhibit 55 is placed on record.”
25. The above position on record shows that the Petitioners have not approached the Court with clean hands, as the Baillif report recording that the Defendant Nos.1(a) to 1(c) were served, was not traceable and immediately after the notice is issued to the concerned clerk the same report was produced by the said clerk immediately on the next date. Thus, it is very clear that at the instance of the Petitioners the said report was made untraceable from the record and as soon as the learned Appellate Court issued notice to the concerned Clerk, immediately, on the very next day, the report was made available to the learned Appellate Court. Thus, apart from merits even the said aspect on record clearly shows that the Petitioners are not entitled for any reliefs under the jurisdiction of this Court under Article 227 of the Constitution of India.
26. In view of the above factual position on record, it is relevant to see observations of the Supreme Court in Mohd. Yunus (supra) on which the Ms. Saboo, learned Counsel of the Respondents has relied. The relevant paragraph No.7 of said decision reads as under: “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior court or tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.”
27. Thus, the Supreme Court has held that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior court or tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law. It if further held that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.
28. The above observations of the Supreme Court are squarely applicable to the present case.
29. Thus, in the facts and circumstances of the case, no interference under Article 227 of the Constitution of India is warranted. In view of the conduct of the Petitioner, the Writ Petition is dismissed with costs of Rs.10,000/-. [MADHAV J. JAMDAR, J.] Note: This Order is corrected as per the Speaking to the Minutes Order dated 11th December 2025.