Sri. C Premraj vs Sri. S B Bhaskar
2022 Latest Caselaw 8152 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 06TH DAY OF JUNE, 2022

                           BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     CIVIL REVISION PETITION NO.210 OF 2020

BETWEEN:

SRI C.PREMRAJ,
S/O LATE CHAMPALAL,
AGED 76 YEARS,
OCC:MONEY LENDER,
PROP: RATHNA FINANCIER,
ROBERTSONPET,
K.G.F. KOLAR DISTRICT - 563 113.                     ...PETITIONER

(BY SRI.M.B.CHANDRA CHOODA, ADVOCATE)

AND:

SRI S.B.BHASKAR
S/O BHAGAWAN DASS,
AGED 49 YEARS,
BEML LTD., EMPLOYEE,
BEARING BADGE NO.B-332-23350,
BEML NAGAR, KOLAR GOLD FIELDS,
R/AT NO.1260, S.M. GOWDA ROAD,
BANGARPET TALUK,
KOLAR DISTRICT - 563 114.                       ...RESPONDENT

(SERVED)

       THIS   CIVIL   REVISION       PETITION   IS   FILED   UNDER
SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908.
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      THIS   CIVIL    REVISION       PETITION   COMING   ON   FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Sri.M.B.Chandrachooda, learned counsel for

petitioner has appeared in-person.

2. The parties are referred to as per their ranking

in the Trial Court.

3. The brief fats of the case are stated as under:

It is the case of the plaintiff - the defendant

borrowed a sum of Rs.3,00,000/- (Rupees Three Lakhs

only) on executing On Demand Promissory and agreed to

pay interest @ 16% per annum. Since he did not pay the

principal amount nor the interest, a legal notice was issued

to him and in spite of service of notice, the defendant did

not pay the amount, hence the plaintiff filed a suit on the

file of the Additional Civil Judge at KGF on 27.04.2016 in

O.S.No.166/2016 for recovery of sum of Rs.3,57,000/-

(Rupees Three Lakhs Fifty-Seven Thousand only).

Upon service of the summons, the defendant entered

appearance through Advocate on 16.06.2016 day after the

case was posted to enable the defendant to file written

statement fixing the hearing date 15.07.2016, 22.08.2016,

16.09.2016 and 20.09.2016. Since the defendant did not

file the written statement on 20.09.2016, the Trial Court

recorded the written statement of the defendant as not

filed and posted the case to plaintiffs' evidence on

15.12.2016. On 15.12.2016, the plaintiff was examined as

PW1 and produced six documents which were marked as

Exhibits P-1 to P-6. The defendant did not choose to cross

examine PW-1 and the plaintiff had no further evidence,

since there was no written statement filed by the

defendant, the case was posted for arguments on

02.01.2017 on that day, arguments on behalf of plaintiff

was heard and the case was posted for judgment on

16.01.2017.

It is stated that on 09.01.2017 the defendant moved

an application in I.A.No.3 under Section 151 of CPC

seeking permission to file written statement. The plaintiff

filed objection to the said application and the Court posted

the case for arguments on 16.01.2017, 25.03.2017,

07.04.2017. 02.06.2017, 13.06.2017, 03.07.2017. The

Trial Court after hearing the arguments, dismissed the

application vide order dated:21.07.2017. The defendant

did not challenge the dismissal order. Thereafter, the Trial

Court decreed the suit on 28.07.2017.

The defendant filed Miscellaneous Petition in

No.22/2017 invoking Order IX Rule 13 of CPC. The Court

dismissed the application vide order dated:02.04.2019. As

against the dismissal order, the defendant filed Appeal

before the Appellate Court in M.A.No.11/2019. The

Appellate Court allowed the appeal on 02.03.2020 and

consequently the suit in O.S.No.166/2016 has been

restored. It is this order which is challenged in this

Revision Petition on several grounds as set out in the

Revision Petition.

4. Learned counsel for petitioner has urged

several contentions.

5. Heard the contentions urged on behalf of

petitioner and perused the order with care.

6. The short point which arises for consideration

is whether the Appellate Court is justified in restoring the

suit and permitting the defendant to present written

statement?

The facts have been sufficiently stated. In the

present case, the Trial Court decreed the suit on

28.07.2017. It is significant to note that the defendant

entered appearance but did not choose to file written

statement. It is relevant to note that an application was

also moved for presentation of written statement but the

same was rejected. After the decree, the defendant

invoked the provision of Order IX rule 13 of CPC to set

aside the judgment and decree of the Trial Court.

Suffice it to note that the said Miscellaneous petition

was presented before the Trial Court on 16.09.2017,

though the petition was barred by limitation the defendant

did not file any application for condonation of delay. The

Trial Court dismissed the application vide order

dated:02.04.2019.

Aggrieved by the said order the defendant preferred

an Appeal before the Appellate Court invoking the

provision of Order XLIII rule 1 of CPC. The Appellate Court

allowed the appeal and restored the suit and also

permitted the defendant to file written statement.

As already noted above the defendant filed an

application under Order IX Rule 13 of CPC to set aside the

judgment and decree of the Trial Court.

Suffice it to note that the provision of Order IX Rule

13 be invoked in any case in which a decree is passed ex-

parte against a defendant, he may apply to the Court by

which the decree was passed for an order to set aside; and

if he satisfies the Court that the summons was not duly

served, or that he was prevented by any sufficient cause

from appearing when the suit was called on for hearing,

the Court shall make an order setting aside the decree as

against him upon such terms as to costs.

But in the present case, the decree of the Trial Court

is not an ex-parte decree. The facts of the present case do

not illustrate that the defendant was not duly served with

summons and he was prevented from appearing when the

suit was called on for hearing.

On the contrary, the defendant entered appearance

in the suit. He did not choose to file written statement. It

is also noticed that he tried to present the written

statement but the same was rejected by the Trial Court.

The defendant did not challenge the said dismissal order.

Hence, invoking provisions of Order IX Rule 13 of CPC was

impressible. The Trial Court rightly rejected the

application.

However, on appeal, the Appellate Court proceeded

to allow the appeal as if the suit is decreed ex-parte and

set aside the order of the Trial Court passed in

Misc.No.22/2017 and erroneously proceeded to permit the

defendant to file written statement. As already noticed

above, this is not a case of ex-parte decree and further the

application seeking permission to file or present written

statement was already rejected by the Trial Court vide

order dated:21.07.2017. It is relevant to note that the

order has become final since the defendant did not

challenge the same. Hence, the order granting one more

opportunity for the defendant to file written statement is

wholly unsustainable in law.

The Appellate Court has failed to have regard to

relevant considerations and disregarded relevant matters.

In my considered opinion, the order passed by the

Appellate Court is unsustainable in law.

Resultantly, the Revision Petition is allowed. The

Order dated:02.03.2020 passed in M.A.No.11/2019 by the

Senior Civil Judge and Prl., JMFC, K.G.F. is hereby set

aside. The judgment and decree dated:28.07.2017 passed

in O.S.No.166/2016 by the Court of the Additional Civil

Judge, K.G.F, is hereby confirmed.

Sd/-

JUDGE TKN