Ashokkumar vs Abdul Kharim
2021 Latest Caselaw 4032 Kant

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               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

          DATED THIS THE 12TH DAY OF NOVEMBER, 2021

                            BEFORE

               THE HON'BLE MRS.JUSTICE M.G.UMA

                      M.F.A.NO.20277/2010
BETWEEN

ASHOKKUMAR S/O NARASINGARA,
AGE: 56 YEARS, OCC AGRIL
R/O MUNIRABAD, TQ and DIST KOPPAL.
                                                  ...APPELLANT
(BY SRI.P.G.MOGALI, ADV.)
AND

1.    ABDUL KHARIM
      S/O LATE ABDUL RAHIMANSAB @ ABDUL RAHEEM
      AGE: 42 YEARS,
2.    ABDUL LATIF
      S/O -DO-
3.    KHAJA MOINUDDIN
      S/O -DO-
      ALL ARE LEGAL REPRESENTATIVES OF LATE ABDUL
      RAHIMANSAB @ ABDUL RAHEEM.

      ALL ARE R/O MUNIRABADTQ and DIST KOPPAL.
                                                 RESPONDENTS
(BY SRI.A.S.PATIL, ADV. FOR R1,
    SRI.Y.LAKSHMIKANT REDDY, ADV. FOR R2 & R3)

      THIS APPEAL IS FILED UNDER ORDER XLIII RULE 1(d) OF CPC
PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED CIVIL
JUDGE (JR.DN.) & JMFC AT KOPPAL IN CIVIL MISC.NO.1/2006 DATED
19.12.2009 AND ALLOW THE CIVIL MISC.NO.1/2006 WITH COST
THROUGH OUT.
     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                             JUDGMENT

The appellant was the petitioner in Civil Misc.No.1/2006 on

the file of the learned Civil Judge and JMFC, Koppal filed under

Order IX Rule 13 of CPC praying to set aside the ex-parte

judgment and decree dated 22.10.2005 passed in

O.S.No.18/2005, granting permanent injunction against the

appellant in respect of the property bearing Sy.No.6 measuring

9.17 acres situated at Kanakapur village of Koppal Taluk.

2. Brief facts of the case are that, respondents herein

filed the suit in O.S.No.18/2005 seeking permanent injunction in

respect of the property mentioned above, against the appellant

herein. The suit summons was issued to the appellant. The

process server submitted a report stating that appellant refused

to receive the suit summons. Therefore, the trial court placed

the appellant ex-parte and proceeded to decree the suit after

holding the trial. Thereafter, Civil Misc.No.1/2006 was filed by

the appellant seeking to set aside the ex-parte judgment and

decree passed by the trial court. The trial court after taking into

consideration the rival contentions of both the parties, proceeded

to dismiss the petition vide order dated 19.12.2009, which is

under challenge before this court.

3. Heard the learned counsel Sri.P.G.Mogali for the

appellant and learned counsel Sri.A.S.Patil for respondent No.1

and learned counsel Sri.Y.Lakshmikant Reddy for respondent

Nos.2 and 3.

4. Learned counsel for the appellant submits that no

summons was not served on the appellant by the trial court in

the suit in O.S.No.18/2005. Under such circumstances, he could

not appear before the trial court and thus, the ex-parte

judgment and decree came to be passed. Even the affidavit of

the Power of Attorney holder of the appellant was filed before

the trial court to contend that the process server had not

approached the appellant and there was no refusal of the

summons. In spite of that, the trial court proceeded to dismiss

the civil miscellaneous petition without any basis. Therefore, he

prays for allowing the appeal and consequently, allow the Civil

Misc.No.6/2006 and to set aside the impugned judgment and

decree passed by the trial court in O.S.No.18/2005.

5. Per contra, learned counsel for the respondents

opposing the appeal submits that, as per the judgment passed in

O.S.No.18/2005, there is specific reference that the summons

issued to the appellant herein was refused. Even the report

submitted by the process server was marked as Ex.P12 and

produced before this court. According to which, the appellant

specifically refused to receive the summons. Further, the

appellant had never entered the witness box. On the other hand,

he examined his Power of Attorney holder. The evidence of the

Power of Attorney holder discloses that the appellant was not

bedridden as contended by the appellant and his version is not

believable. Therefore, the trial court has rightly dismissed the

civil miscellaneous petition as devoid of merits. No grounds are

made out to allow the appeal. Hence, he prays for dismissal of

the appeal.

6. Perused the material on record. The point that would

arise for my consideration is:

Whether Civil Misc.No.1/2006 filed under Order IX Rule 13 of CPC praying to set aside the ex-parte judgment and decree dated 22.10.2005 passed in

O.S.No.18/2005 is liable to be set aside under Order XLIII Rule 1(d) of CPC.?

My answer to the above point is in the 'Negative' for the

following:

REASONS

7. The admitted facts are that, respondents filed the

suit in O.S.No.18/2005 before the trial court seeking permanent

injunction. The said suit was came to be dismissed vide

judgment and decree dated 22.10.2005. In the judgment, it is

specifically stated that, even though summons was issued to the

appellant herein, the same was refused. The appellant filed civil

miscellaneous petition seeking to set aside the ex-parte

judgment and decree passed in O.S.No.18/2005. The appellant

got examined his brother as his Power of Attorney holder. During

cross-examination, the witness specifically stated that, for the

purpose of executing the Power of Attorney deed, the appellant

had visited the Koppal. He deposed that only on the basis of the

say of his brother, he deposed that the summons was not

tendered to his brother. The witness categorically admits that his

brother was served with notice of caveat. The report submitted

by the process server is produced as per Ex.P12. The appellant

has not chosen to summon the process server concerned, who

has made the endorsement regarding refusal of the summons.

There is absolutely no reason to suspect the report submitted by

the process server. No valid reasons are assigned as to why the

said process server was not summoned for cross-examination by

the appellant. Merely saying that notice was not served on the

appellant will not serve any purpose. Moreover, the appellant

has not probabilize his contention for seeking the relief. The

impugned judgment and decree was passed on 22.10.2005.

8. In view of these facts and circumstances, I am of the

opinion that there are no merits in the appeal. Accordingly, I

answer the above point in the "Negative" and proceed to pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MBS/-