KALAWATI DANIYAL KHANDAGLE THROUGH GPA MICHAEL DANIYAL KHANDAGALEversusRAMBHABAI NATHA KHANDAGALE DECEASED THR LRS DADU NATHA KHANDAGLE DECEASED AND OTHERS

2026:BHC-AUG:41242



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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                     WRIT PETITION NO. 5463 OF 2024

                       Kalawati Daniyal Khandagle Through Gpa Michael Daniyal
                                             Khandagale
                                               VERSUS
                      Rambhabai Natha Khandagale Deceased Thr Lrs Dadu Natha
                                   Khandagle Deceased And Others
                                                   ...
                     Mr. P. R. Nangare, Advocate for the Petitioner
                                                  …..
                                         CORAM : AJIT B. KADETHANKAR, J.
                                             DATED : 04TH SEPTEMBER, 2026

                     P.C. :-

                     .         This matter was on yesterday’s board. Nobody appeared

                     for the respondent’s side. This Court after hearing Mr. P. R.

                     Nangare, learned Advocate for the petitioner passed an

                     extensive order wherein the conduct of the respondent was

                     recorded. It is evident fact that despite service of notice from

                     the Trial Court, the respondents/defendants did not appear

                     and hence, the suit was decreed observing that the defendants

                     were served and yet did not appear.

                     2.        Subsequently, an application under Order IX Rule 13 of

                     the Civil Procedure Code was filed by the defendants which,

                     after hearing all the parties came to be allowed. The petitioner
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has taken exception to the said order. Yesterday, this Court

has passed a detailed order. For the sake of convenience and

to avoid repetition of the sequence of facts, the order dated

03.09.2026 is reproduced as follows:



                   Petitioner’s suit for declaration of
      title of ownership filed in 2010 came to be
      decreed by the trial court. It is an undisputed
      fact that the suit summons were issued by the
      trial court. However nobody appeared for the
      defendants. Ultimately after hearing the
      petitioner/plaintiff the trial court decreed the
      suit. Two years later, an application under
      Order 9 Rule 13 of the Code of Civil Procedure
      was moved by the defendants seeking setting
      aside of the decree that was passed by the trial
      court. Said application was strongly opposed by
      the petitioner. The petitioner demonstrated that
      there was sufficient service of notice to the
      defendants. However, they chose not to appear
      before the court.
      2.           After hearing both the parties, the
      trial court has been pleased to pass the
      impugned judgment and order dated 13.02.2024
      in Civil Misc. Application No.13 of 2012 whereby
      the application was allowed and the judgment
      and decree passed by the court in R.C.S. No.105
      of 2010 was set aside. Cost of Rs.3000/- was
      imposed on the applicant therein. At clause no.4
      of the order, the defendants were directed to file
      written statement within statutory period from
      the date of their appearance and to proceed with
      the suit as early as possible. Feeling aggrieved
      by the said order, the petitioner has filed present
      petition.
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3.           Mr.Nangare, learned advocate for
the petitioner submits that the service of suit
summons was complete and falls under the
caption of “duly served” within the meaning of
Order 5 Rule 15 of C.P.C. He would submit that
the trial court erred in holding that the
defendants were not duly served. Apart from
this, he would submit that the defendants have
not adhered to the directions given by the trial
court at clause no.4 of the operative order. The
defendants till today have not filed written
statement. Further contention is that after the
suit is restored, the defendants never turned to
the trial court to prosecute the suit. He produces
on record a copy of the case-status report fetched
from the official Website of District and Sessions
Court, Ahmednagar. Said copy is taken on
record and marked as “X” for identification. He
submits that even in the present Writ Petition
also nobody appeared despite having been
served by High Court notice. He submits that
even the petitioner has served the respondents
taking recourse to public notice under Order 5
Rule 20 of C.P.C. under the orders of this court.
The notices were published and copies of the
newspaper were also deposited in this court. He
would submit that it is apparent that the
respondents/defendants do not want to proceed
with the suit. In view of this, he submits that the
Writ Petition be allowed observing firstly that
the defendants were duly served in the trial
court. Secondly, there was no necessity to set
aside the decree as is ordered in the impugned
order,       and        thirdly       that      the
defendants/respondents have lost their interest
in defending the suit.
4.     This matter was listed from time to time.
The first notice was issued on 12.06.2024. On
05.08.2024 permission was given to the
petitioner to serve respondent nos.1D, 1E and 1F
by private service. Fresh notice was also issued
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to these respondents.       Again, notices were
reissued to respondent nos.1D to 1F on
11.11.2024 observing that the earlier notices
were not received by them. Thereafter, the
petitioners sought to furnish full address of
respondent nos.1D to 1F with a prayer to issue
notice to these respondents. Said request was
accepted.     In the meantime, for want of
submitting such fresh address the Writ Petition
was ordered to be dismissed against respondent
nos.1D to 1F. On 16.07.2025 this court issued
fresh notice to respondent nos.4 and 5. In the
meantime the petitioner got the Writ Petition
restored against respondent nos.1D to 1F. Under
the orders of this court, they were served by
paper publication. Thereafter, as per the order
date 06.08.2026 the petitioner issued notice by
paper publication to respondent no.1D, 1F, 4
and 5 and submitted copies of the newspaper in
the Registry.
5.     Mr.Nangare, learned advocate for the
petitioner submits that as such even after service
of notice to the respondents by various modes,
none of them caused their appearance. In the
meantime, Mr.L.B.Pallod - learned advocate for
the respondent has filed his `no instructions
purshis’ and has also submitted that he has even
intimated his client that he will be filing `no
instructions purshis’ for want of instructions. It
is reported that notice by advocate is served on
the respondents.

6.   Today when the matter was called out in
the morning session, none appeared for the
respondents. Hence, the matter was kept in the
second session. In the second session also, none
appeared for the respondents.

7.   Place the matter tomorrow           i.e.   on
04.09.2026. for passing order.
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3.    With an intention to give another chance to the

responding side, the matter was kept today for passing order.

Today also when the matter is called out, nobody appears for

the respondents. In view of the above, I record my findings as

under:

4.    The bailiff reports placed on record by Mr. Nangare,

learned Advocate for the petitioner would clearly show that

there was sufficient notice upon the defendants under Order V

Rule 15 of the Civil Procedure Code. I could not see any

convincing reasoning in the order passed by the Trial Court

allowing application under Order IX Rule 13 of the Civil

Procedure Code whereby the service effected on the family

members of the defendants was held to be invalid under

Order V Rule 15 of the Civil Procedure Code. Besides this, it is

necessary to take into consideration the conduct of the

defendants/respondents.

5.    I have already extensively recorded that even after

restoration of the suit to its original position, the defendants

never turned to the Court to defend the suit further. They also

did not seek any amendment to the operative part of the order

restoring the suit. Even when the Writ Petition is filed, they
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did not respond any of the notice issued by this Court. The

respondents were sought to be served by the various modes by

the petitioner and even by taking recourse to Order V Rule 20

of the Civil Procedure Code. The notices are deemed to be

served on the respondents.

6.      In view of this, I find that the defendants/respondents

have misused the concession granted by the Trial Court to

them by allowing the application below Order IX Rule 13 of

the Civil Procedure Code.

7.      Mere pendency of suit in this contingencies is nothing

but an abuse of process. Recording my disapproval to the

reasoning rendered by the Trial Court in the impugned order,

I find that the Writ Petition deserves to be allowed. Hence,

Writ     Petition   stands   allowed.   Impugned   order   dated

13.02.2024 passed in Civil Misc. Application No.13 of 2012 by

the learned Civil Judge Junior Division Pathardi, Dist.

Ahmednagar stands quashed and set aside.




                                     ( AJIT B. KADETHANKAR, J. )

Rushikesh/2026