SHANKAR DHONDU SALAMVADEversusANSELM FABIAN MISQUITTA AND ORS

                      Sonali Mane                                                  11-IA-7255-2026.docx



                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                            CIVIL APPELLATE JURISDICTION

                                            WRIT PETITION NO. 4293 OF 2011
                                                          WITH
                                        INTERIM APPLICATION NO. 7255 OF 2026
                                                            IN
                                            WRIT PETITION NO. 4293 OF 2011


                      Shankar Dhondu Salamvade And Ors.                     … Petitioners
                               Versus

                      Anselm Fabian Misquitta And Ors.                      … Respondents



                      Mr. Sudhir Sadavarte, for Petitioners/Applicants.
                      Ms. Leena Patil, 'B' Panel a/w Ms. S. R. Crasto, AGP for Respondent-
                      State in IA.


                                                        CORAM        : SANDEEP V. MARNE, J.

                                                        DATE         : 1 OCTOBER 2026.

                      P.C. :


                      1)            The Petition challenges Judgment dated 20 June 2009 passed
                      by the Small Causes Court at Bombay, rejecting the Miscellaneous
                      Notice No. 143 of 2009 filed by the Petitioners/Defendant No.1 under
                      provisions of Order 9 Rule 13 of the Code of Civil Procedure, 1908 for
                      setting aside ex parte decree dated 21 December 2006.



                      2)              I have heard Mr. Sadavarte, the learned counsel appearing
                      for Petitioners and have considered the submissions canvassed by him.
   MANE
   SONALI
                      None has appeared on behalf of the Respondents.
   DILIP
Digitally signed by
MANE SONALI DILIP
Date: 2026.10.05
11:07:05 +0530
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3)            The Petition has been admitted by Order dated 21 December
2011. While admitting the Petition itself, this Court has made an
observation that possession of the premises was already taken over by
the Plaintiff.



4)            Petitioners claim to be the original tenants in respect of the
suit premises. The suit was filed by the Plaintiffs seeking eviction of the
Petitioners from suit premises, inter alia, on the grounds of arrears of
rent and also parting with possession of premises to Defendant No.2.
The findings recorded by the Trial Court would indicate that before
filing of the suit, the Plaintiffs attempted to serve a notice on the
Petitioners but the packets containing the notice were returned as
'unclaimed and refused'. Therefore, Plaintiff personally visited the suit
premises and attempted to serve the notice, when he found Defendant
No.2 occupying the suit premises. When suit summons was attempted
to be served, it appears that the bailiff did not find Petitioners present
in the suit premises. Accordingly, the suit summons was pasted at the
premises. It appears that a substituted service was also attempted in
respect of the suit summons, but the packet containing the summons
was returned with a remark 'intimation posted'.



5)            Though Petitioners sought to set up a case that the bailiff was
managed, they did not bother to apply for conducting cross-
examination of the bailiff. More importantly, when decree was sought
to be executed and the bailiff approached the property for execution of
warrant of possession, once again, Defendant No.2 was fond occupying
the suit premises. The Plaintiff was again not present in the suit
premises. The possession of the suit premises is ultimately taken over
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from Defendant No.2 and not from the Petitioners. It cannot be a
matter co-incidence that, on three different occasions, Petitioners were
not found in the suit premises i.e. when pre-suit notice was sought to
be served, when summons in the suit was sought to be served and when
possession was taken away by the Plaintiff.



6)            In my view, therefore, no case was made out for setting aside
ex parte decree. The Small Causes Court has rightly rejected
Miscellaneous Notice No. 143 of 2009. The Writ Petition is accordingly
dismissed. Rule is discharged. There shall be no order as to costs.



7)            In view of dismissal of the Writ Petition, nothing would
survive in the Interim Application and the same stands disposed of.




                                                       [SANDEEP V. MARNE, J.]




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