Karnataka High Court

Shantaram S/O Vishwanath Rane vs Smt.Vijaya Vishwanath Rane on 6 December, 2023

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                                                                 NC: 2023:KHC-D:14288
                                                                   RSA No. 100508 of 2019




                               IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

                                      DATED THIS THE 6TH DAY OF DECEMBER, 2023
                                                        BEFORE
                                       THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
                                   REGULAR SECOND APPEAL NO.100508 OF 2019 (PAR)
                              BETWEEN:
                              SHANTARAM S/O. VISHWANATH RANE,
                              AGE: 73 YEARS, OCC: PENSIONER AND AGRICULTURIST,
                              R/O: 'RANE NILLAY' DURGAWADI, TALEGAON,
                              TISWADI, GOA, GOA STATE,
                              NOW-R/O: SARMUDGERI, MUDGERI VILLAGE,
                              TQ: KARWAR, DIST: UTTARA KANANDA,
                              PIN CODE: 581302.
                                                                             ...APPELLANT
                              (BY SRI. S.H. MITTALKOD, ADVOCATE AND
                                    SRI. SURESH S.BHAT, ADVOCATE)
                              AND:
                              1.    SMT. VIJAYA, D/O: VISHWANATH RANE,
                                    W/O: PRAKASH AIGAL, AGE: 67 YEARS,
                                    NOW AT: SHRISTHAL, CANACON-403502,
                                    GOA, GOA STATE R/O: HOUSE NO.1501/4,
                                    REGOBHAG, ALTO SANTACRUZ,
                                    BOMBOLIAM, GOA, GOA STATE-403702.
                              2.    SMT. CHAYA, D/O: VISHWANATH RANE,
                                    W/O: ANANT GAONKAR, AGE: 58 YEARS,
           Digitally signed         R/O: FATHIMA COLONY, ALTO DABOLIEUM,
           by VISHAL
VISHAL     NINGAPPA                 VASCO, GOA-403702.
           PATTIHAL
NINGAPPA   Date:              3.    SRI. SHIVANAND, S/O: VISHWANATH RANE,
PATTIHAL   2023.12.21
           15:04:07                 AGE: 65 YEARS, R/O: SHRISTHAL,
           +0530
                                    CANCONA, GOA-403702.
                                                                            ...RESPONDENTS
                              (BY    SMT. PADMAJA S.TADAPATRI, ADVOCATE FOR R1 AND R2;
                                     NOTICE TO R3 IS SERVED)

                                   THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
                              100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
                              JUDGEMENT AND DECREE DATED 21.02.2019 PASSED IN
                              R.A.NO.7/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
                              JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
                              JUDGMENT AND DECREE DATED 02.06.2012, PASSED IN O.S.
                              NO.59/2011 ON THE FILE OF THE CIVIL JUDGE (JUNIOR DIVISION),
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                                   NC: 2023:KHC-D:14288
                                     RSA No. 100508 of 2019




KARWAR, DECREEING THE SUIT FILED FOR DECLARATION AND
PARTITION.

     THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Defendant No.1 is before this Court, assailing the

Judgment and decree of the first appellate Court in RA

No.7/2017 on the file of the Principal Senior Civil Judge,

Karwar dated 21.02.2019, confirming the Judgment and

decree dated 02.06.2012 passed in OS No.59/2011 on the

file of the Civil Judge (Junior Division), Karwar.

2. The parties herein are referred to as per their

rankings before the Trial Court.

3. Facts of the case are that:

Plaintiffs instituted suit for partition and separate

possession contending that the plaintiffs are the sisters of

defendant Nos.1 and 2, daughters of defendant No.3. It is

averred that the suit schedule properties are the joint

family ancestral properties of the plaintiffs and defendants

and the plaintiffs are entitled for share in the suit schedule

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properties, that there is no partition effected between the

plaintiffs and defendants.

4. The summons were issued to the defendants,

defendant Nos.1 and 3 did not appear personally nor

through their counsel and they were placed ex-parte.

Defendant No.2 appeared through his counsel and filed

written statement admitting the claim of the plaintiffs.

5. The trial Court proceeded with the suit and on

examination of the evidence let-in by the plaintiffs,

decreed the suit holding that the plaintiffs are entitled for

1/4th share each in the suit schedule properties. Civil Misc.

No.5/2012 was preferred by defendant No.1 under Order

IX Rule 13 r/w Section 151 the Code of Civil Procedure,

1908 (hereinafter referred to as 'CPC' for short) seeking

for setting aside the ex-parte decree passed in OS

No.59/2011. The concerned Court by recording the

evidence of the parties dismissed Civil Misc. No.5/2012 on

24.06.2017. After the dismissal of Civil Misc. No.5/2012,

the appellant-defendant No.1 preferred regular appeal in

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R.A.No.7/2017 before the first appellate Court against the

judgment and decree of the trial Court in O.S.No.59/2011.

6. The first appellate Court, while reconsidering

and re-appreciating the entire oral and documentary

evidence, arrived at the conclusion that the regular appeal

filed by the appellant under Order XLI Rules 1 and 2 r/w

Section 151 CPC is not maintainable and consequently,

dismissed the application filed by the appellant under

Section 5 of the Limitation Act and Order XLI Rule 3A CPC.

Aggrieved by the same, the present second appeal by

defendant No.1.

7. Heard Sri. S.H.Mittalkod for Sri.Suresh S.Bhat,

learned counsel for the appellant and Smt. Padmaja S.

Tadapatri, learned counsel appearing for the respondents.

8. An ex-parte decree passed in OS No.59/2011

was assailed in Civil Misc. No.5/2012 and by the impugned

order held that the applicant-defendant No.1 has not

satisfied the Court about the sufficient cause for non-

appearance in the suit. The order passed in Civil Misc.

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No.5/2012 has remained unchallenged by defendant No.1

and what was assailed by defendant No.1 was the

correctness of the judgment and decree of the trial Court

passed in O.S.No.59/2011.

9. Before the first appellate Court, the appellant

addressed the ground that the summons though was

served upon him, he could not make his appearance

before the Court as he was unwell and he had authorized

his brother to appoint an advocate and to make necessary

arrangements. It is the ground of the appellant that, his

brother had obtained his signature on vakalath and he was

under the bonafide impression that the proceedings were

contested by his brothers. The very contention urged

before the appellate Court was also the ground raised by

the appellant in Civil Misc. No.5/2012, which invariably

came to be dismissed by taking note that the defendant

has not made out sufficient cause for his non-appearance

before the trial Court.

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10. In the appeal under Section 96 of CPC, wherein

the Judgment and decree of the Trial Court was assailed

by the defendant, the first appellate Court observed that

the final decree proceedings have been concluded and the

shares have been allotted to the plaintiffs and defendants

and also held that Civil Misc. No.5/2012 seeking to set-

aside the ex-parte judgment and decree has been

dismissed by the trial Court.

11. It is a settled proposition of law that, when an

appeal is filed under Section 96(2) CPC, questioning of an

ex-parte order is not before the first appellate Court, what

is questioned before the appellate Court is the correctness

of the Judgment of the trial Court and seeking to set-aside

the ex-parte decree is to be assailed under Order IX Rule

13 CPC and thus, the contention of the appellant was with

sufficient cause, which cannot be urged before the

appellate Court under Section 96(2) CPC nor before this

Court. To question the correctness of the decree in a first

appeal is a statutory right and when an application under

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Order IX Rule 13 CPC is dismissed, the remedy available

to the defendant there against is to prefer an appeal in

terms of Order XLIII Rule 1 CPC.

12. The Apex Court in the case of N. Mohan Vs.

R. Madhu1 has held that, if an application filed under

Order IX Rule 13 CPC is rejected, that would not take

away the right of an appeal, which is available to the

defendant under Section 96(2) CPC. In light of the

judgment of the Apex Court stated supra, it can be held

that, even if an application under Order IX Rule 13 CPC is

rejected, the remedy available to the defendant under

96(2) CPC is not taken away, however, the question of

summons, whether duly served or not, is not for

consideration before the first appellate Court under the

spirit and object contemplated under Section 96 (2) CPC.

13. In Civil Misc. No.5/2012 filed under Order IX

Rule 13 CPC, the existence of a sufficient cause for non-

appearance of the defendant before it was considered. In

AIR 2020 SC 41

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the petition, it has been held that the defendant has not

made out any genuine grounds for his non-appearance

and the very contention, or otherwise on the same ground,

cannot be urged in the appeal under Section 96(2) CPC.

14. The Apex Court in the case of Bhanu Kumar

Jain Vs. Arhana Kumar and Another2 (Bhanu Kumar

Jain), wherein the Apex Court at para Nos.37 & 38 has

held as under:

"37. We have, however, no doubt in our mind that when an application under Order 9 Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst viz. to prefer an appeal in terms of Order 43 Rule 1 of the Code. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law.

38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be

(2005) 1 SCC 787

NC: 2023:KHC-D:14288

permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr Chaudhari that the "Explanation" appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury, P. Kiran Kumar and Shyam Sundar Sarma v. Pannalal Jaiswal ."."

15. The Coordinate Bench of this Court in the case

of Mahantesh Vs. Manjunath3 placing reliance on the

judgment of the Apex Court in the case of Bhanu Kumar

Jain has given deliberate consideration about the scope

and ambit of Section 96 (2) and Order IX Rule 13 CPC and

at para No.29 has held as under:

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"29. Conclusions:

(i) If defendant is questioning the correctness of the order posting the case for ex-

parte hearing and consequentially raises several contentions indicating that he was not served with summons, the said contentions have to be raised in a petition filed under Order IX Rule 13 before the court of first instance who has passed the order of posting the case for ex-parte hearing and consequentially has passed an ex-parte decree. In view of the principles laid down by the Apex Court in Bhanu Kumar Jain (supra), the conditions enumerated under clause (a) and (b) of Order IX Rule 13 of CPC cannot be raised in a first appeal against the ex-parte decree under Section 96(2) of CPC.

(ii) In an appeal under Section 96(2), the defendant on merits of suit can contend that the material brought on record by the plaintiff were not sufficient for passing a decree in his favour, which necessarily presupposes that defendant even in the absence of defence or rebuttal evidence can still argue that evidence available on record is not sufficient to grant any reliefs to the plaintiff.

(iii) The principles laid down by the Apex Court in the case of Bhanu Kumar Jain (supra), clearly indicate that defendant cannot be permitted to raise contention as regard to correctness or other

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wise of order posting the suit ex-parte hearing; conversely can be inferred that appellate court also cannot examine the existence of sufficient case for non- appearance of the defendant in an appeal filed under Section 96(2) and has to only confine its adjudication on merits.

(iv) There is no legal impediment in filing the appeal against the ex-parte decree. Though remedies under Order IX Rule 13 and Section 96(2) are concurrent but their scope is entirely different. The two remedies provided against ex-parte decree are in respect of two different situations and can be resorted to only if the facts of the situations are available to litigant.

(v) If the there is denial of service by defendant, the presumption raised under Section 27 of the General Clauses Act on the basis of expression 'may presume' stands refuted and burden would shift upon the plaintiff to prove due service by leading evidence and also by examining the process server and this exercise has to be done before the court of first instance which has proceeded to place the defendant ex-parte and consequentially ex-parte decree is passed.

(vi) An enquiry under Rule 13 of Order IX necessarily involves adducing of evidence either to show that summons was not duly served or that he was prevented from appearing by any sufficient

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cause. The correctness of an order under that provision can be considered by appellate court in an appeal under Order XLIII Rule 1(d) of the Code. The petition to set aside ex-parte decree is a less expensive remedy than an appeal for which court fee on the subject matter of the appeal has to be paid.

(vii) An error, defect or irregularity which has affected the decision of the case may be challenged in an appeal against the decree whether ex parte or otherwise. But an appeal against the ex parte decree under Section 96(2) CPC cannot be converted into proceedings for setting aside the decree with the concomitant duty of affording to the parties an opportunity of adducing evidence for and against any ground that may be raised in support thereof under Order IX Rule 13, CPC. Nor can such an appeal be converted into an appeal under Order XLIII Rule 1(d), CPC. The reason is that when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set aside, these remedies and none other must be followed."

16. The Apex Court in the case of Bhanu Kumar

Jain stated supra has clearly held that the conditions

enumerated under Clauses (a) and (b) of Order IX Rule 13

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CPC cannot be raised in a first appeal against the ex-parte

decree under Section 96(2) CPC. The Court of first

Instance, wherein defendant No.1 initiated proceedings

under Order IX Rule 13 CPC, has taken the material on

record and held that defendant No.1 has made no

sufficient cause for his non-appearance and the very

ground urged in the appeal under Section 96(2) CPC,