Sri T Kariyappa vs Sri T V Damodar
2022 Latest Caselaw 8484 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 09TH DAY OF JUNE, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.1735/2021(CPC)

BETWEEN:

SRI. T. KARIYAPPA
S/O LATE THIMMAIAH
AGED ABOUT 55 YEARS
R/A NO.162, RACHENAHALLI
SHIVARAMAKARANTH NAGARA
BANGALORE - 77.
                                          ... APPELLANT
(BY SRI. T. SHESHAGIRI RAO, ADVOCATE)

AND:
SRI T. V. DAMODAR
S/O P R VENKAPPAIAH
AGED ABOUT 60 YEARS
R/A NO.124
II CROSS, VARMA LAYOUT
BHUVANESHWARINAGAR
BANGALORE - 73.
                                        ... RESPONDENT
(BY SRI.RANJAN KUMAR.K, ADVOCATE)
     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER.43 RULE 1(d) OF THE CPC,1908 AGAINST THE ORDER
DATED 19.06.2020 PASSED IN MISC.NO.25047/2012 ON THE
FILE OF THE LXXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, MAYO HALL UNIT, BENGALURU CCH-74, DISMISSING
THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                            JUDGMENT

This appeal is by the defendant in

O.S.No.16949/2006 on the file of the XIII Additional

City Civil and Sessions Judge, Mayohall, Bengaluru (for

short, 'the Civil Court'). The respondent's suit for

permanent injunction restraining the appellant from

interfering with his possession of the immovable

property which is described as bearing No.215, Katha

No.1870 A No.172 of Rachenahalli village, K.R.Puram,

Bengaluru South Taluk and measuring east to west and

north to south 55'x40' feet (the subject property) is

decreed on 17.12.2007. The appellant has commenced

proceedings in Misc.No.25047/2012 under the Order IX

Rule 13 of Code of Civil Procedure 1908, and the Civil

Court has rejected this miscellaneous petition by the

impugned order dated 19.06.2020.

2. The appellant and the respondent have rival

claims to the subject property. The Civil Court, in

deciding the merit of appellant's case for restoration of

the suit for adjudication on merit, should have

considered the question whether the appellant was duly

served with the suit summons and if duly served, has

the appellant shown sufficient cause to explain his

absence in the proceedings.

3. On appreciation of the material on record,

the civil Court has opined that the appellant was served

with suit summons because of the Bench Clerk's note in

the order sheet on 22.02.2007. This note dated

22.02.2007 reads that RPAD is duly served, and the

suit summon is returned unserved. The Bench Clerk's

note dated 22.02.2007 is not based on the actual

acknowledgment received from the Postal Department,

and admittedly, the postal acknowledgement is not even

part of the record. When it is undisputed that the Court

bailiff has not served the suit summons on the

appellant, and the acknowledgment from the Postal

Department is not part of the record, the civil Court

could not have dismissed the appellant's application for

restoration of the suit. Therefore, the civil Court has

erred in dismissing the appellant's miscellaneous

proceedings.

4. The judgment in O.S.No.16949/2006, given

the rival claims to the subject property, has serious

repercussions. When queried, Sri Ranjan Kumar K., the

learned counsel for the respondent, submits that the

respondent has had the benefit of temporary injunction

for over 15 years now and if the judgment is set aside

on any ground, the respondent's right would be

seriously prejudiced. This apprehension must be

accepted while disposing of the appeal in the light of

this Court's view that the Civil Court has erred in

rejecting the appellant's request for restoration of the

suit. The suit must be restored for consideration on

merits, and this Court is of the considered view that the

respondent must continue to have the benefit of

temporary injunction against the appellant until

disposal of the suit on merits but on the condition that

the respondent shall not undertake any construction to

change the nature of the subject property. For the

foregoing, the following

ORDER

(a) The appeal is allowed, and the Civil

Court's order dated 19.6.2020 in

Misc.No.25047/2012 and the exparte

judgment and decree dated 17.12.2007 in

O.S.No.16949/2006 are set aside and the

suit in O.S.No.16949/2006 are restored for

re-consideration on merits;

(b) The respondent, who shall have

the benefit of temporary injunction against

the appellant insofar as the use and

enjoyment of the subject property during

subsistence of the suit, shall not change the

nature of the subject property;

(c) The appellant and the respondent

shall without further notice appear before

the Civil Court on 11.7.2022 and they shall

appear without waiting even for the certified

copy of this order.

(d) The appellant shall file written

statement within four [4] weeks from the

date of first hearing without seeking further

extension of time and the suit shall be

disposed of within an outer limit of twelve

(12) weeks from the date of first appearance.

SD/-

JUDGE

SA Ct:sr