Karnataka High Court
Mahadeva vs P S Reddy on 3 December, 2021
Bench: K.S.Mudagal
M.F.A.No.198/2013
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.198/2013 (CPC)
BETWEEN:
MAHADEVA
S/O KARIGOWDA,
AGED ABOUT 41 YEARS,
R/AT NO.444, HOSABEEDI
BELAVADI,
YELAVALA HOBLI,
MYSORE TALUK. ...APPELLANT
(BY SRI S.N BHAT, ADVOCATE)
AND:
1. P.S.REDDY S/O RANGAPPA.P
AGED ABOUT 64 YEARS,
R/AT NO.1, K. BLOCK,
KUVEMPUNAGAR,
MYSORE-570024.
2. Y.G. CHINNASWAMY
S/O Y.S.GOVINDARAJA SHETTY,
AGED ABOUT 63 YEARS,
NO.5, 4TH MAIN,
JAYALAKSHMIPURA
MYSORE-570012. ...RESPONDENTS
(BY SRI P.N.MANMOHAN, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(D) OF
CIVIL PROCEDURE CODE PRAYING TO SET-ASIDE THE ORDER
DATED 17.10.2012 PASSED BY THE 3RD ADDITIONAL SENIOR
CIVIL JUDGE MYSORE IN MISC.NO.32/2010 FILED UNDER
ORDER 9 RULE 13 OF CPC
M.F.A.No.198/2013
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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
With consent of both parties, the matter is taken up
for final disposal.
Heard.
2. Aggrieved by the rejection of his petition
under Order 9 Rule 13 of CPC to set-aside the exparte
decree passed in OS No.183/2008 on the file of III
Additional Civil Judge (Senior Division) at Mysuru, the
defendant has preferred the above appeal.
3. The respondents filed OS No.183/2008
against the appellant for Specific Performance of
Agreement of sale said to have been executed by the
appellant in their favour on 30.06.2005 in respect of land
bearing Survey.No.133/2 measuring 1 acre 7 guntna and
Survey No.133/3 measuring 33 guntas of Madagalli
village, Yelewala Hobli, Mysuru Taluk.
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4. The respondents contended that the appellant
agreed to sell the property for consideration of
Rs.16,20,000/- and received an advance consideration
Rs.4,00,000/-. They further contended that they were
ready to perform their part of contract, but the appellant
failed to execute the sale deed. Therefore they sought
decree for Specific Performance of Contract.
5. In the said suit, summons was served on the
appellant in March 2008. He did not appear to contest
the suit. Therefore on 05.09.2009 the suit came to be
decreed exparte. The appellant filed Miscellaneous
No.32/2010 before the trial Court against the respondents
under Order 9 Rule 13 of CPC to set-aside the exparte
decree passed against him.
6. In the petition he contended that due to his
ill-health he could not appear before the Court to contest
the suit in OS No.183/2008. Respondents opposed the
petition claiming that the petition lacks bonafides and the
appellant despite having knowledge of the proceedings
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did not contest the same. They disputed the medical
ground urged by the appellant.
7. In support of the alleged medical ground, in
his evidence, the appellant produced Ex.P4 the medical
certificate said to have been issued by the Medical officer
of Primary Health Center, Yelewala, Mysuru Taluk. As per
the said certificate, the appellant was suffering with viral
fever from 24.02.2008. Though the genuineness of the
said document was disputed, the author of the said
document was not examined.
8. During the course of evidence, the appellant
deposed that he was suffering from mental depression
and some allergy. He also deposed that he does not know
the contents of Ex.P4 and about O.S.No.797/2008
between the same parties. In OS No.797/2008 the
respondents had sued the appellant for recovery of
money. The appellant admitted that he had appeared in
that suit. Considering such aspects, the trial Court
dismissed the petition observing that he failed to show
sufficient cause for his non appearance.
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9. Sri.S.N.Bhat, learned Counsel for the
appellant submits that the valuable property is involved in
the case and the appellant is not well versed with the
legal proceedings, therefore lenient view may be taken
and the impugned order may be set-aside subject to any
terms.
10. Referring to the proviso to Order IX Rule 13 of
CPC, Sri.P.N.Manmohan, learned counsel for respondents
submits that if the defendant knew the date of hearing
and had sufficient time to appear and answer the
plaintiff's claim, the Court shall not set-aside the decree.
11. It is true that in the case on hand the
appellant has admitted the service of summons. However
the rights of the appellant for valuable property is
involved in the case. The records show that there was
another money recovery suit between the parties.
12. Under such circumstances, to meet the ends
of justice, it is just and appropriate to grant one more
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opportunity subjecting him to appropriate terms.
Therefore the appeal is allowed with costs.
13. The impugned order of the trial Court is
hereby set-aside.
Miscellaneous No.32/2010 filed by the appellant
before trial Court is hereby allowed subject to payment of
cost of Rs.50,000/- to be deposited before the trial Court
within four weeks from the date of receipt of copy of this
order.
The exparte decree dated 05.09.2009 in OS
No.183/2008 passed by the III Additional Civil Judge
(Senior Division) at Mysuru is set-aside. OS No.183/2008
is restored to the file.
The parties shall appear before the trial Court on
05.01.2022 without any further notice. The appellant
shall file his written statement in the suit within two
weeks there from otherwise he loses his right of defence.
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The trial Court shall dispose of the suit as
expeditiously as possible, at any rate within six months
from the date of appearance of the parties.
In view of disposal of the appeal, pending IAs stood
disposed of.
Sd/-
JUDGE
PKN
