Smt Gayathri vs Smt Leela
2022 Latest Caselaw 7508 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF MAY, 2022

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      WRIT PETITION NO. 9275 OF 2017 (GM-CPC)

BETWEEN:
SMT. GAYATHRI
W/O LATE D.NANJUNDASWAMY
AGED ABOUT 47 YEARS
HOMBALE RANGAIAHNA THOTA
SEWAGE FARM, FORT MOHALLA
VIDYARANYAPURAM
MYSURU-570008

                                      ...PETITIONER
(BY SRI.J.D.KASHINATH, ADVOCATE)

AND

SMT.LEELA
W/O M.VIJAYASHANKAR
AGED ABOUT 58 YEARS
R/AT NO.737/1
5TH CROSS, RAMANUJA ROAD
MYSURU-570004
                                    ...RESPONDENT

(BY SRI.P.NATARAJU, ADVOCATE)


     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO CALL FOR RECORDS, SET ASIDE OR QUASH THE
IMPUGNED ORDER DATED 01.02.2017 PASSED BY II
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ADDL.SR.CIVIL JUDGE AT MYSURU IN M.A.NO.20/2016 AT
ANNEX-G AND THE FINAL ORDER DATED 4.2.2016
PASSED BY PRL. FIRST CIVIL JUDGE AT MYSURU IN
MISC.3/2014 AT ANNEX-F AND THEREBY RESTORE THE
O.S.379/2012 BY PERMITTING THE PETITIONER TO
PROCEED IN THE ORIGINAL SUIT AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        ORDER

The captioned writ petition is filed by

unsuccessful defendant who has suffered an exparte

decree passed in O.S.379/2012 against which the

petitioner has filed a miscellaneous petition under

Order IX Rule 13 of CPC in Mis. No.3/2014, which was

rejected by the Trial Court and same is confirmed by

the First Appellate Court in M.A.No.20/2016.

2. Facts leading to the case are as under;

The respondent/plaintiff filed a suit in

O.S.379/2012 seeking relief of declaration of title and

for consequential relief of possession. The

respondent/plaintiff claimed that defendant is the

absolute owner of the suit schedule property, which is

a site bearing No.62/A, measuring 30x20 feet. The

respondent/plaintiff contended that the present

petitioner/defendant purchased the suit schedule

property from the registered owner namely Ningamma

under registered sale deed dated 10.04.2000 for

valuable sale consideration and has constructed a

residential house. The respondent/plaintiff further

pleaded that the suit schedule property is a self

acquired property of present petitioner/defendant. The

plaintiff/respondent has purchased the suit property

from the defendant/petitioner under the sale deed

dated 01.06.2006.

3. The present petitioner failed to contest the

proceeding and therefore, the suit was decreed

exparte and exparte decree was passed by judgment

and decree dated 03.10.2012. Feeling aggrieved by

the exparte decree, the present petitioner filed

miscellaneous petition in Mis.No.03/2014. In the said

miscellaneous petition, petitioner claimed that she was

suffering from illness and as such she was bedridden

and therefore, she failed to contest the suit. The

petitioner also claimed that the respondent/plaintiff

has consciously given wrong address and he has

managed to secure an exparte decree. At paragraph 9

of the miscellaneous petition, the present

petitioner/defendant also claimed that the

respondent/plaintiff has come up with a false claim

with mala-fide intent to knock the property owned by

petitioner herein. The Court of first instance which has

passed exparte decree having examined the ocular

documents and also materials placed on record,

answered the point No.1 in negative, by recording a

finding that the petitioner/defendant has failed to offer

sufficient cause to condone the delay and also failed

to assign satisfactory reasons to set aside the exparte

decree passed in O.S.379/2012.

3. Feeling aggrieved by the said order,

petitioner/defendant preferred an appeal before the

Appellate Court in M.A.20/2016. Before the First

Appellate Court, petitioner claimed that the suit

summons was not served on her. It was also

contended that the respondent/plaintiff had managed

to obtain a wrong shara on the Court summons issued

in O.S.379/2012 and that petitioner came to know

about the exparte decree, only when she was served

with notice in Ex.P.121/2013. The Appellate Court

having perused the material placed on record found

that though the petitioner/defendant appeared in

Execution proceedings on 16.03.2013 but she had

filed a miscellaneous petition only on 08.01.2014 i.e.,

after lapse of eight months. The medical evidence let

in by petitioner was also not accepted by the First

Appellate Court. The First Appellate Court also drew

adverse inference against the petitioner for having not

examining the Doctor, who has issued medical

certificate. The First Appellate Court has also taken

judicial note of the fact that when respondent/plaintiff

went along with bailiff on 14.03.2013 for recovery of

possession, the present petitioner/defendant remained

absent and later on prayed for a week's time to hand

over possession. Having examined all these significant

details, the Appellate Court has concurred with

reasoning's and at conclusions arrived at by the Trial

Court rejecting the Miscellaneous application filed

under Order IX Rule 13 of CPC.

5. Against this concurrent orders, the

petitioner/defendant is before this Court.

6. Heard learned counsel appearing on behalf of

petitioner/defendant and learned counsel appearing

on behalf of respondent/plaintiff.

7. Learned counsel appearing on behalf of

petitioner would vehemently argue and contend that

the concurrent orders passed by the Courts below is

contrary to material placed on record and therefore,

the Court below committed an error while rejecting

the Miscellaneous petition and Courts have virtually

declined to grant an opportunity to the present

petitioner to contest the suit and therefore the same

has resulted in miscarriage of justice. Learned counsel

referring to the averments made in petition would

contend that the summons was served on the mother

of the petitioner, who was not at all alive at the time

of serving summons which is alleged to be served on

elder member of the family and therefore he would

contend that the said documents dated 20.11.2009

indicating that petitioner's mother died on 20.11.2009

could have been taken on record. Both the Courts for

the reasons best known to them, have declined to

entertain the said documents which would have a

bearing on the conclusion in Miscellaneous petition

filed under Order IX Rule 13 of CPC. He would further

contend that respondent/plaintiff has deliberately

given wrong address and has obtained exparte

decree. To substantiate his claim, learned counsel

appearing on behalf of petitioner referred to the cause

title in the plaint and in the judgment and as well as in

the decree. Placing reliance on the wrong address

given in the plaint he would contend that summons

was never served on the petitioner.

8. Per contra, learned counsel appearing on behalf

of respondent would contend that the petitioner

herself has sold the suit property infavour of the

respondent/plaintiff under registered sale deed dated

01.06.2006 for valuable sale consideration and in

terms of the sale deed, petitioner has failed to hand

over possession. He would contend that having

received entire sale consideration, petitioner instead

of delivering possession has however indulged in

unfair tactics, which compelled respondent/plaintiff to

approach this Court seeking relief of declaration and

possession. He would contend that both the Courts

having meticulously examined material on record and

have come to conclusion that petitioner has failed to

satisfy the Court that she was prevented by sufficient

cause in not contesting the suit and therefore this

concurrent orders cannot be reversed under Article

227 of Constitution of India.

9.     Perused   the      material     on      record.     The

Miscellaneous    petition    is   seriously    contested    by

petitioner on two grounds. The petitioner asserts and

claims that the "Shara" on the summons which is

under dispute shows that summons is served on the

mother of the petitioner by name Chennamma. To

counter this , though petitioner while adducing ocular

evidence has made an attempt. However, there are no

specific pleadings indicating that petitioner's mother

was also residing with her and she was not alive on

the said date when summons was sought to be served

on the mother of the petitioner. An attempt is made

before this Court, indicating that petitioner mother

died on 20.11.2009 and summons was served on

03.04.2012. This aspect is dealt by the Court of first

instance which has passed exparte decree. At para 15

of the order under challenge the Court of first instance

has recorded a categorical finding that absolutely no

oral evidence is let-in in support of the document.

Therefore, there is absolutely no reference in the

Miscellaneous petition and the said fact is not stated in

the ocular evidence. This document dated 20.11.2009

cannot be looked into and both the Courts have rightly

discarded this document while considering the claim of

petitioner.

10. The second limb of argument canvassed by the

petitioner, that the suit was filed by deliberately giving

wrong address. I find some force in the said

submission. In that regard, as rightly pointed out by

the learned counsel appearing on behalf of the

petitioner, this Court would find that the house

number is wrongly shown as 51/A in place on 62/A.

However, that in itself would not create confusion

while serving the summons. The petitioner is not

disputing her residential address which is shown as

No.E.W.S, No.62/A, Sewage Farm, Vidyaranyapuram,

Fort Mohalla, Mysuru. There is no error in mentioning

the address of the petitioner herein. Of course there is

some error in mentioning the property number. That

in itself would not create any doubt in service of

summons. Prima facie no material is placed by the

petitioner by leading cogent evidence in that regard.

The presumption that is available under the provision

of Section 27 of General Clause Act, 1897 is not at all

refuted by petitioner. Both the Courts have

concurrently held that petitioner has failed to make

out a case and no sufficient cause is shown for having

failed to contest the proceedings. The concurrent

orders of the Courts below cannot be said to bad in

law and material placed on record cannot be re-

appreciated under Article 227 of Constitution of India.

Accordingly, writ petition is devoid of merits and

stands dismissed.

Sd/-

JUDGE

HDK