Sri D H Ramanjinappa @ D H Dhruva ... vs Sri H S Shankar
2023 Latest Caselaw 4733 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JULY, 2023

                      PRESENT

      THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                        AND

       THE HON'BLE MR. JUSTICE C.M. POONACHA

            R.F.A. No.627 OF 2019 (SP)

BETWEEN:

SRI D H RAMANJINAPPA
@ D H DHRUVA RAMANJI
S/O DODDA HANUMANTHAPPA
AGED ABOUT 37 YEARS
R/A KALKERE VILLAGE
HORAMAVAU PO
BANGALORE-560043
                                         ... APPELLANT
(BY SRI CHANDRA SHEKAR R, ADVOCATE)

AND

1 . SRI H S SHANKAR
    S/O LATE H SRINIVAS
    AGED ABOUT 39 YEARS
    R/A NO.D-386
    EAST 5TH LANE
    ITI COLONY, DOORAVANINAGAR POST
    BANGALORE-560016

2 . SRI THIMMESH PRABHU
    S/O LATE MUNIYAPPA
    AGED ABOUT 40 YEARS
    R/A MARIYAPPA BUILDING
    SHANTHI LAYOUT, 1ST CROSS
                             2




    OPP:TO KANAKA VINAYAKA TEMPLE
    RAMAMURTHY NAGAR
    BANGALORE-560016

3 . SRI H K PRATHAP
    S/O M C KRISHNAPPA
    AGED ABOUT 39 YEARS
    GURUKRUPA NILAYA
    OPP:M M CHOULTRY
    NEW POLICE STATION ROAD
    KRISHNARAJAPURA
    BANGALORE-560036
                                        ...RESPONDENTS
(BY SRI M S VARADARAJAN, ADVOCATE FOR R1 & R3)

      THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.07.2014 PASSED IN OS
NO.9327/2013 ON THE FILE OF THE XXXIX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY DECREEING
THE SUIT FOR SPECIFIC PERFORMANCE AND ETC.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.03.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, POONACHA J., DELIVERED THE
FOLLOWING:


                       JUDGMENT

The above first appeal is filed by the Defendant

under Section 96 of the Code of Civil Procedure, 1908

(hereinafter referred to as the 'CPC') challenging the

judgment and decree dated 26.7.2014 passed in OS

NO.9327/2013 on the file of the XXXIX Additional City Civil

and Sessions Judge, Bangalore (hereinafter referred to as

the 'Trial Court), whereunder the suit filed by the Plaintiffs

for specific performance is decreed.

2. Along with the above appeal IA.I/2019 is filed

under Section 5 of the Limitation Act to condone the delay

of 1606 days in filing the appeal and IA.2/2019 is filed

under Order XLI Rule 5 of the CPC read with Section 151

of CPC for stay.

3. The Respondents have filed their detailed

objections along with 6 documents to IA.1/2019 and also

to IA.2/2019.

4. For the sake of convenience, the parties herein

are referred as per their rank before the Trial Court.

5. A few necessary background facts are required

to be noticed before consideration of IA.1/2019.

6. It is the case of the Plaintiffs that the

Defendant being the owner of the suit property agreed to

sell the same to the Plaintiffs for a total sale consideration

of `55 lakhs and the parties entered into registered

Agreement of Sale dated 5.5.2011 and also received an

advance sale consideration of `45 lakhs. The Sale Deed

was agreed to be executed within two years. The balance

sale consideration of `10 lakhs was to be paid and the

possession of the property was to be handed over at the

time of registration of the Sale Deed. Thereafter, the

parties also entered into a registered Rectification Deed

dated 7.5.2011. It is the further case of the Plaintiffs that

despite they being ready and willing to perform their part

of the contract, the Defendant failed to perform his part of

the contract despite several requests and demands.

Hence, the Plaintiffs filed a suit for specific performance.

7. The notice sent to the Defendant was received

by his wife. However, since the Defendant did not enter

appearance, he was placed ex parte. The Plaintiff No.1

examined himself as PW.1 and marked Exs.P1 to P5.

Since the Defendant was placed ex parte, no evidence was

adduced on his behalf. The Trial Court, upon an

appreciation of the oral and documentary evidence

available on record, by its judgment and decree dated

26.7.2014 decreed the suit of the Plaintiffs and passed the

following order:

"The suit of the Plaintiffs is hereby decreed against the Defendant.

The Defendant is hereby directed to execute registered sale deed in favour of Plaintiffs by receiving balance consideration of `10 lakhs within 90 days from the date of this order.

In case of failure, the Plaintiffs got right to get the sale deed in respect of the suit property according to law.

Draw a decree accordingly."

8. Being aggrieved the present appeal is filed.

9. The learned Counsel for the Appellant-

Defendant contended that:

i) The Judgment and decree passed by the Trial

Court is without granting an opportunity to the

Defendant to contest the suit. That if an

opportunity is afforded to the Defendant, he

would substantiate his case by producing

sufficient material;

ii) The Plaintiffs have not issued any demand

notice to the Defendant asking him to execute

the registered Sale Deed which is a mandatory

requirement, in the absence of which there

was no cause of action to file the suit;

iii) There was no legal necessity for the Defendant

to sell the ancestral property in which the

children have also got a definite share;

iv) The Plaintiffs did not satisfy the ingredients of

Sections 16 and 20 of the Specific Relief Act,

1963, and the Trial Court ought not to have

decreed the suit of the Plaintiffs;

v) He was not aware of the pendency of the suit

and became aware of the same only when the

decree was executed.

10. In support of his contentions, the learned

Counsel relied on the following judgments:

          i)    GNR    Babu      @                    S.N.Babu          v.

          Dr.B.C.Muthappa & Ors., ;


          ii)     Pratibha Singh v. Shanti Devi Prasad 2.




          11.     Per     contra,        the     learned     Counsel    for    the

Respondents/Plaintiffs contended that:

i) The Defendant cannot be permitted to plead

the aspect regarding non service of suit

summons in view of the fact that the said

contention is required to be urged in a

proceedings under Order IX Rule 13 of the CPC

which the Defendant has not initiated;

ii) Consequent to the decree passed by the Trial

Court the Plaintiffs filed Execution Case

No.261/2017 and the Executing Court through

its Commissioner has executed the registered

Sale Deed dated 31.5.2018 and the Plaintiffs

have also been put in possession of the suit

Civil Appeal No.6228/2022, DD 6.9.2022

(2003) 2 SCC 330

property through process of the Executing

Court on 12.3.2019;

iii) The Plaintiffs have acquired a vested right over

the property in question and the delay cannot

be condoned;

iv) The Defendant has suppressed the fact that

during the pendency of the registered

Agreement of Sale dated 5.5.2011 executed in

favour of the Plaintiffs, he has executed

another agreement in favour of one

K.Prashanth Reddy vide registered Sale

Agreement dated 3.9.2012 which is cancelled

by a registered Cancellation Deed dated

13.12.2013 and subsequently the Defendant

has executed another registered Sale Deed

dated 13.12.2013 in favour of Dr.K.C.Raju

Reddy;

v) The suit summons has been duly served on the

Defendant and the Defendant has not given

sufficient reasons to condone the delay;

Hence, he seeks for dismissal of IA.1/2019 as well as

the above appeal.

12. We have considered the submissions made by

both the learned Counsel and perused the material

available on record. The questions that arise for

consideration are:

i) Whether IA.1/2019 is required to be allowed?

ii) Whether the judgment and decree passed by the trial court is liable to be interfered with?

13. In support of IA.1/2019 for condonation of

delay, the Appellant/Defendant has sworn to an affidavit

stating that notice was not issued to him in accordance

with law by the Trial Court and that an ex parte judgment

and decree was passed. It is further stated that when

some persons claiming to be Ameena from the Court came

to the residence of the Defendant i.e., the suit property

and locked the house in the second week of March 2019

and when the Defendant questioned them, he was

informed that in execution of the decree passed in the suit

filed by the Plaintiffs, delivery warrant has been issued.

That immediately he contacted his Advocate on 12.3.2019

and upon verification he learnt of the judgment and decree

and accordingly, applied for certified copies and handed

over the same to the Advocate on 14.3.2019 and filed the

above appeal. That the delay in filing the appeal is bona

fide and unintentional.

14. The Respondents/Plaintiffs in their objections

to IA.1/2019 have stated that consequent to the decree

the Plaintiffs filed Execution Case No.261/2017 and the

Executing Court through its Commissioner has executed

the registered Sale deed dated 31.5.2018. Further,

pursuant to the delivery warrant issued by the Executing

Court, the Plaintiffs have been put in possession of the

property on 12.3.2019. It is further averred by the

Plaintiffs that the suit summons has been received by the

Defendant and the contention that the Defendant was not

served with the suit summons is contrary to the material

on record.

15. It is further placed on record that though the

Defendant executed the registered Sale Agreement dated

5.5.2011 in favour of the Plaintiffs, he has executed

another registered Sale Agreement dated 3.9.2012 which

was cancelled by a registered Deed of Cancellation dated

13.12.2013 and on the same day, the Defendant has

executed another registered Sale Deed dated 13.12.2013

in favour of Dr.K.C.Raju Reddy. That although the

Defendant has alienated the property, the said aspect has

not been disclosed in the above appeal nor in the affidavit

filed in support of IA.1/2019.

16. The suit summons issued through the Court

was served on the wife of the Defendant on 20.2.2014 as

is forthcoming from the endorsement issued by the Bailiff

and the suit summons sent by RPAD has been received by

the Defendant on 30.4.2014 as is forthcoming from the

postal acknowledgement card. Although the suit summons

has been served as noticed above, the Defendant, apart

from merely denying the fact that he was not served with

the notice in the suit, he has not averred with regard to

the aspect regarding service of notice of the suit as is

forthcoming from the record.

17. Order V Rule 15 of the CPC stipulates as

follows:

"15. Where service may be on an adult member of defendant's family.-Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation-A servant is not a member of the family within the meaning of this rule."

(emphasis supplied)

18. It is relevant to note that Order V Rule 15 of

the CPC has been substituted by Act 104 of 1976 w.e.f.,

1.2.1977.

19. A learned Single Judge of this Court

considering the substitution made for Order V Rule 15 of

the CPC in the case of Mahantesh v. Manjunath3 has

held has as under:

"27. Remedy of Order IX Rule 13 of CPC should be always availed before the court of first instance which passed an ex-parte order. In the present case on hand, the trial court records clearly indicate that summons was duly served on the wife of the respondent/defendant. Therefore, even otherwise, the finding of the first appellate court that summons was duly served on respondent/defendant is perverse and palpably erroneous. If the respondent/defendant had any grievance in regard to due service of summons and if he seriously disputes, then he ought to have initiated proceedings under Order IX Rule 13 of CPC before the court at the first instance. The material on record would clearly indicate that summons was served on the wife of respondent/defendant and therefore, there is due compliance of Order V Rule 15 of CPC. Prior to 1956 amendment, the summons was always required to be served either on the defendant or on the male members of the family. By way of 1976 amendment, the same is substituted and now service may be on adult member of defendant's

ILR 2022 KAR 3435

family. Admittedly, the summons was served on respondent/defendant's wife. Therefore, a presumption would arise that summons was duly served on respondent/defendant. Even if respondent/defendant were to deny and place some evidence and if presumption is refuted, in that event, the burden shifts on the plaintiff to prove due service by leading evidence. There is absolutely no material 29 placed on record by respondent/defendant that no honest attempt was made to personally serve on the defendant at his residential address and therefore, service on the family member cannot be held as sufficient service. It is a trite law that in view of amendment to Rule 15 of Order V of CPC, service effected on the wife of the defendant is sufficient service. .........."

(emphasis supplied)

20. Countering the submissions of the learned

counsel for the Plaintiffs that the aspect regarding service

of notice is required to be contended only in a proceedings

under Order IX Rule 13 of the CPC the learned Counsel for

the Defendant has relied on the judgment of the Hon'ble

Supreme Court in the case of G.N.R. Babu1 to contend

that the aspect regarding non service of suit summons can

be contended even in a first appeal.

21. In the case of G.N.R. Babu1 the Hon'ble

Supreme Court, after relying on its earlier judgment in the

case of Bhanu Kumar Jain v. Archana Kumar & Anr.,4

has held as follows:

"7. ........... This Court held that though after dismissal of an appeal under Section 96 of CPC against ex parte decree, application under Rule 13 of Order IX of CPC will not be maintainable, there is no bar on unsuccessful defendant adopting both the remedies simultaneously. In such a case, if the regular appeal against the decree is dismissed, obviously the application under Rule 13 of Order IX of CPC cannot proceed. The reason is that explanation to Rule 13 of Order IX of CPC lays down that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than withdrawal, application for setting aside ex parte decree will not lie. However, in the event an application under Rule 13 of Order IX of CPC is dismissed, the defendant can prosecute the appeal against the decree as a right to prefer appeal under Section 96 cannot be taken away in absence of any express provision to the contrary in CPC. In paragraph 38 of the aforesaid decision, this Court held that when application under Rule 13 of Order IX of CPC filed by a defendant is dismissed, the defendant cannot be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing and/or existence of a sufficient cause for nonappearance of the defendant.

8. In this case, the question is when the defendant did not avail the remedy under Rule 13 of Order IX of CPC, whether it is open for him to agitate in the regular appeal against the decree that the trial court had no justification for proceeding ex parte against the appellant. In such a case, though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before

(2005) 1 SCC 787

the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him. The reason is that under Section 105 of CPC, when a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the Memorandum of Appeal. Thus, in such a case, the appellant can always urge in an appeal against the decree that an interim or interlocutory order passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal. As held in the case of Bhanu Kumar Jain1, only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect. However, in this case, the appellant has not filed application under Rule 13 of Order IX of CPC. Therefore, such a contention can be raised by him."

(emphasis supplied)

22. In view of the settled position of law as noted

in the case of G.N.R. Babu 1, the aspect regarding non

service of summons can be adjudicated in the present

appeal having regard to the fact that the Defendant has,

admittedly not initiated any proceedings under Order IX

Rule 13 of the CPC.

23. It is a settled proposition of law that while

seeking condonation of delay, the Appellant is required to

explain every day's delay. That while considering the said

aspect Courts ought not to adopt a pedantic approach.

However, there must be a reasonable explanation for the

delay. (see: Ajay Dabra v. Pyare Ram & Ors.,5 ).

24. As noticed above, the suit summons was

served on the wife of the Defendant on 20.2.2014 and on

the Defendant on 30.4.2014 as is forthcoming from the

RPAD acknowledgement card. As held in the case of

Mahantesh3 the summons served on the wife of the

Defendant is required to be held as sufficient service. It is

required to be presumed that the Defendant had

knowledge of the suit as on the said date. The delay for

the period when the Defendant was served with the suit

summons in February/April, 2014 till March, 2019 remains

unexplained. Hence, the Appellant has failed in

demonstrating sufficient cause to condone the delay in

filing the above appeal. In the absence of the Defendant

specifically refuting the service of suit summons as noticed

above, the cause of action shown for condonation of delay

only from March, 2019, is liable to be rejected.

25. Another aspect which is required to be taken

note of is that due to the passage of time, valuable rights

in immovable property has stood vested with the Plaintiffs,

as also the fact that the Defendant has also not disclosed

the true and correct facts regarding the alienation of the

suit property while filing the present appeal.

26. The judgment relied upon by the Appellant

Pratibha Singh2 will not aid the case of the Appellant as

in the said case the Hon'ble Supreme Court has held that

the map of the property should be filed with the plaint,

when sub-plot numbers mentioned to describe the

property were not capable of being identified merely by

2023 SCC Online SC 92

boundaries nor by numbers. However, in the present

case, the decree having been executed and the Plaintiff

having been put in possession of the property, the said

judgment will not aid the case of the Appellant.

27. It is forthcoming from a perusal of the order

sheet dated 28.10.2022 that this Court directed the

Appellant to deposit a sum of `45 lakhs which he received

under the Agreement of Sale with interest at 6% p.a.

Accordingly, the Appellant has deposited a total sum of

`75,82,500/- lakhs (`15 on 2.12.2022 and ` 37 lakhs and

`23,82,500/- on 6.1.2023) which has been kept in Fixed

Deposit pursuant to the orders dated 2.12.2022 and

6.1.2023.

28. In view of the findings recorded above, the

questions framed for consideration are answered in the

negative. The appellant is entitled to refund of the

amounts deposited by him before this Court.

29. In view of the aforementioned, we pass the

following:

ORDER

i. IA.1/2019 is dismissed;

ii. Consequently, the above appeal is also dismissed;

iii. IA.2/2019 for stay does not survive for consideration

in view of the dismissal of the appeal;

iv. Registry to refund the amount deposited by the

Appellant upon due verification.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

nd