Second Appeal No. 534 of 1995

16th October, 1995

Petitioner Counsel: M/s. V.P.SHINTRE and A.G.DAMLE
Respondent Counsel: Mr. N.B.SHAH, Mrs.SHOBHA MANDLIK

JUDGMENT

JUDGMENT :- This appeal is being disposed off at the stage of admission itself. As substantial question of law is involved in respect of proper construction of Order 6 Rule 17 of the Code of Civil Procedure as amended to be considered by this Court, Appeal stands admitted. Learned advocate for Respondents waives service. By consent appeal made returnable forthwith. Printing of paperbooks so also the record and proceedings of the lower Court dispensed with. By consent appeal taken up for hearing.

2. It is unnecessary to burden the judgment with the facts in the matter suffice it however to state that the appellant herein is the original defendant No.2, a contestant-defendant. Respondent No.1 is the original plaintiff. Respondent No.2 is the mother of defendant No.2.

3. Parties are described as in the original cause.

4. The plaintiff filed a suit seeking injunction simpliciter against defendant No.2 the present appellant. The writ of summons was served and the 2nd appellant defendant caused his appearance to be filed through his advocate. However he did not file any written statement.

5. Thereafter the plaintiff moved application for amendment of the plaint. The amendment related to seeking of possession of the disputed property in the suit. It appears that the process of the amendment was served upon the advocate of applicant No.2 on record. No reply was filed therefor and eventually the amendment came to be granted. It is noticed that after grant of amendment no further process as and by way of amended writ of summons was served upon the 2nd defendant. The 2nd defendant also did not file his written statement in response to the original writ of summons or even after the amendment. Matter proceeded ex-parte and decree came to be passed in favour of the plaintiff.

6. The 2nd defendant filed appeal before the district Court, Pune which also came to be dismissed. Inasmuch as it is noticed that the 2nd defendant contended that after the amendment he was not served with any process as and by way of amended writ of summons which was mandatory and since there was no proper service of amended writ of summons the matter should not have been proceeded ex-parte. It is asserted that for want of service he was deprived of the opportunity of presenting his case before the Court.

7. However, the Appellate Court rejected the said contention of the 2nd defendant which noted that the 2nd defendant was served with the writ of summons initially and although he appeared through his advocate did not file written statement. The process of the amendment application was also served upon the 2nd defendant through his advocate but even then he did not respond and since amendment was granted in these circumstances further service of amended writ of summons was not necessary.

8. On proper construction and on reading Order 6 Rule 17 as per Bombay Amendment it would show and mean that if the amendment to the plaint is of substantial and material nature then the amended writ of summons has to be served upon the defendant to enable and/or facilitate him to file further written statement in response to amendment granted in the plaint. To that extent the first Appellate Court is not right in its view that since defendant was represented through his advocate and did not appear the service of amended writ of summons was not necessary. In a given case when there is express waiver of the service of amended writ of summons by and on behalf of the defendant then the position will be different but in the instant case this was not the case.

9. Mr.Shah, learned advocate appearing for the plaintiff submitted that the 2nd defendant has been negligent all throughout. In the event he pointed out that there is lack of bonafide and diligence on the part of 2nd defendant. To some extent learned advocate for the plaintiff may be right and also justified in his comments. But in the matter herein since there is failure to comply with the mandatory provisions of service of amended writ of summons this appeal has to be allowed. The condition upon which the appeal is allowed will be indicated in the operative part of the judgment.

10. Mr.Shah learned advocate for the plaintiff submitted that the matter is pending since long and it is because of negligence on the part of 2nd defendant that this situation has arisen.

11. In the circumstances following order is passed:-

i) Appeal is allowed and decrees of both the Courts below are set aside and suit being Regular Civil Suit No.4 of 1989 is restored to the tile,

ii) Matter is remanded back for consideration afresh on merits by the trial Court;

iii) Learned advocate appearing for the defendant No.2 appellant-herein Mr.Shintre and Mr.Shah appearing for the original defendant No.1, Mrs.Shobha Mandlik for respondent No.2 waive service of amended writ of summons in the suit and the Court records the said statement of the learned counsel;

iv) The original defendants shall file their written statement before the trial Court on or before 20.11.1995. The said defendant shall also file their list of documents/affidavit of documents by the same time. Defendants shall also furnish copies of written statement as also list of documents/affidavit of documents of the plaintiff by same time.

v) Trial Court shall dispose off the matter as expeditiously as possible, in any event within four months of the filing of the written statement.

vi) The appellant-defendant No.2 shall pay costs in this appeal to the Respondent No.1-original plaintiff quantified at Rs.1000/- being condition precedent. Costs to be paid within four weeks. C.C. expedited.

Order accordingly.