Gangaram Babu Kule v. Ashok Mastakar & Anr.

Mr. Sachin B. Shette for the petitioner. Mr. P.M. Gaonkar for the respondents. CORAM : D.G. KARNIK, J. DATE : 13TH JULY 2010 : P.C.

Heard. By this petition, the petitioner challenges the judgment and order dated 18 February 2009 passed by the appellate bench of the Small Causes Court confirming the order dated 20 October 2007 passed by the learned single Judge of the Small Causes Court dismissing the motion of the petitioner for setting aside an exparte decree.

The respondent filed a suit against the petitioner, bearing R.A.E. Suit No.1001/1824 of 2004 for possession. The petitioner 2 WP 995/10 remained absent despite service of writ of summons. Consequently, the suit proceeded exparte and after hearing the respondent, the Court passed a decree for possession. After receipt of the notice of the execution petition, the petitioner applied to the Small Causes Court for setting aside the exparte decree on the ground that the form in which the suit summons served on him was not proper. That application was rejected and the order has been upheld by the appellate bench.

It is undisputed that a writ of summons of the suit was served on the petitioner. Counsel for the petitioner, however, submitted that the writ of summons was issued in English language which is not the language of the Court and, therefore, the service of writ of summons was not proper. In the alternative, he submitted that the petitioner does now know English and, therefore, he was not aware what the contents of the writ of summons were and, therefore, he did not remain present in the Court.

Appendix “B” to the Code of Civil Procedure (for short “the Code”) contains forms of different process to be issued by the Court. Form-1 relates to the summons for disposal of suit and 3 WP 995/10 Form-2 relates to the summons of the suit for settlement of issues. Both the proformas are in English. Counsel for the petitioner submitted that since Marathi is the language of the Court in the State of Maharashtra, the form of summons provided in Appendix “B” to the Code stands modified and all processes of the Court must be issued in Marathi. Counsel was, however, unable to point out any notification issued by the State of Maharashtra effecting any modification to the Form-1 and Form-2 of Appendix “B” to the Code. Counsel was unable to point out any other material to show that the State of Maharashtra has prescribed the writ of summons shall be issued only in Marathi language. Consequently, the contention that the writ of summons, which was issued in English, was not as per the law is rejected.

Counsel for the petitioner then submitted that the petitioner does not know English and, therefore that was a sufficient cause for his non-appearance. I am unable to agree. Take a case of a litigant who is illiterate. Even if a writ of summons is served on him in Marathi or any other language, he would not know its contents without taking aid of any literate person. The Court would never be able to serve any process on him which is 4 WP 995/10 intelligible to him without the help of anybody else. Therefore, whenever a writ of summons is issued to him in English, which is the language used in the forms prescribed in the Code, it is the duty of the person who receive the process to ascertain either from the officer serving the process or from anybody else of his choice and confidence its contents. He cannot ignore the process lawfully served upon him and then complain absence of knowledge.

No other point was urged. There is no merit in the writ petition which is hereby rejected.

Learned counsel for the petitioner submits that the execution of the decree may be stayed for some time. Execution of the decree is stayed for 3 months subject to the petitioner filing an undertaking in usual form in the Court within 10 days. If the undertaking is not filed within 10 days, the stay shall stand vacated and the decree can be executed forthwith.

(D.G. KARNIK, J.)