Karnataka High Court
Smt. M.K. Thangam vs Sri. R. Satish on 12 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:20089
MFA No. 3185 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.3185 OF 2016 (CPC)
BETWEEN:
1. SMT. M.K. THANGAM
W/O T.R.VENUGOPAL
AGE: 63 YEARS
R/AT NO.23, 3RD MAIN ROAD
SIR.M.VISHVESWARAYA LAYOUT
KODIGEHALLI
BENGALURU-560 098
2. SMT. PRIYA
W/O ANIL KUMAR
Digitally signed
by SHARANYA T AGE: 39 YEARS
Location: HIGH NO.61/3, NANJAPPA LAYOUT
COURT OF
KARNATAKA DODDABOMMASANDRA MAIN ROAD
VIDHYARANYAPURA POST
BENGALURU-560 097
3. SRI. V.ARUN KUMAR
S/O T.R.VENUGOPAL
AGE: 33 YEARS,
R/AT NO.23, 3RD MAIN ROAD
SIR.M.VISHVESWARYA LAYOUT
KIDOGEHALLI
BANGALORE-560 098
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NC: 2023:KHC:20089
MFA No. 3185 of 2016
REP. BY HIS SPECIAL POWER OF ATTORNEY
T.R.VENUGOPAL
S/O RAGHAVAN
AGE: 66 YEARS
SIR.M.VISHVESWARAYA LAYOUT
KODIGEHALLI
BENGALURU-560 098
...APPELLANTS
(BY SRI K MANJUNATHA RAO BHONSLE, ADVOCATE)
AND:
SRI. R. SATISH
S/O LATE RAMALINGE GOWDA
AGED ABOUT 51 YEARS
NO.319, 5TH CROSS
1ST BLOCK, R.T.NAGAR
BENGALURU-560 032
...RESPONDENT
(BY SRI. P M NARAYANA SWAMY, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(d) OF CPC,
AGAINST THE ORDER DATED 05.03.2016 PASSED ON
MIS.NO.25173/2011 ON THE FILE OF THE IV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT,
BENGALURU AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 3185 of 2016
JUDGMENT
This appeal is filed against the order dated
05.03.2016 passed in Misc.No.25173/2011 on the file of IV
Additional City Civil an Sessions Judge, Mayohall,
Bengaluru.
2. This appeal is listed for admission. Heard the
learned counsel appearing for the respective parties.
3. The factual matrix of the case is that the
respondent herein has filed a suit in O.S.No.17516/2016
wherein obtained an order of permanent injunction in
respect of the suit schedule property. Being aggrieved by
the said order, the appellants herein have filed an
application under Order IX Rule 13 of CPC wherein it is
contended that while obtaining the judgment and decree,
different address of the appellants herein has been shown
hence, by suppressing the facts, the restraining herein has
obtained the decree even though the appellants are
residing in the very same property which they have
purchased after construction of the building. The counsel
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MFA No. 3185 of 2016
also vehemently contend that in respect of the very same
address which has been shown in the cause title of the
miscellaneous petition, the respondent also sent the copy
of caveat petition and the same is also served and hence,
it is evident that the appellants are residing in the very
same address but decree is obtained in respect of other
address.
4. The counsel for the appellants submits that only
the paper publication was taken and no service is made
against the appellants herein in the original suit and
hence, it requires interference. It is also contended that
and the Trial Court committed an error in coming to the
conclusion that the dispute is in respect of the title hence,
ought to have file the suit for the relief of declaration thus,
the very approach of the Trial Court is erroneous.
5. Per contra, the learned counsel for the
respondent would submits that while filing the suit, the
address of the appellants/defendants has given as that of
the address mentioned in the power of attorney as well as
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MFA No. 3185 of 2016
in the sale deed. The counsel also submits that the
appellants are in possession of the suit schedule property
and they are watching the proceedings since the
appellants who gave evidence in other case, also as a
witness in the suit and knowingfully well that there was a
proceeding which is pending for consideration, they did not
appear before the Court and only after the decree, they
came up with an application under Order IX Rule 13 of
CPC and the said fact is also taken note by the Trial Court.
Hence, the Trial Court has not committed any error in
dismissing the application of the appellants herein.
6. In reply to the arguments, the counsel for the
appellants submits that appellant Nos.2 and 3 have also
filed the suit in O.S.No.27035/2016 and the suit was
decreed in the year 2019 and the very same address is
mentioned in that suit also hence, it is clear that they are
residing in the address which is shown in the cause title of
the miscellaneous petition. The counsel also submits that
even electricity connection also taken and copy of the bill
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MFA No. 3185 of 2016
is produced as additional document before the Court to
evident the fact that they are in possession of the said
property and also produced the copy of the sanction order
for taking the electricity connection. But the Trial Court
fails to take note of the material on record particularly,
which are placed before the Trial Court at Ex.P1 to P15
and hence, the Trial Court committed an error in
dismissing the miscellaneous petition.
7. Having heard the learned counsel for the
respective parties and also on perusal of the material on
record, it discloses that the decree which was obtained in
the original suit, the address is shown in terms of Ex.P1
i.e., Ramachandrapuram and Kamalanagar and not shown
the address of petition schedule premises. No doubt, the
summons was not served against the
appellants/defendants and only through paper publication,
the summons was served on them hence, they have not
appeared and contested the suit. But they have filed an
application under Order IX Rule 13 of CPC wherein a
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MFA No. 3185 of 2016
witness has been examined as PW1 and got marked the
documents at Ex.P1 to P15 and the respondent also
examined as RW1. No doubt, the Trial Court while
considering the material on record, taken note of the
averments pleaded in paragraph 14 of the affidavit of PW1
and in detail discussed the same and comes to the
conclusion that the appellants/defendants have not
appeared in the said suit till its disposal and they were
placed exparte and immediately after delivering the
judgment, they appeared and filed the miscellaneous
petition for setting aside the exparte order and there was
a delay of two months in filing the miscellaneous petition.
And also it is observed that if they are claiming the title,
ought to have filed the suit for declaration instead of filing
the suit for the relief of injunction hence, the very
approach of the Trial Court is erroneous.
8. The Court has to take note that when the
petition is filed under Order IX Rule 13 of CPC, they have
to give sufficient cause. Admittedly, the suit summons
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MFA No. 3185 of 2016
were not served on the appellants herein and only paper
publication was published and hence, they were placed
exparte. The counsel for the appellants are also claims
that they are in possession of the property. The counsel
for the respondent would submits that respondent also
sent the copy of the caveat petition in the address as
shown in the miscellaneous petition i.e., No.23, 3rd main
road, Vishweshwaraya Layout, Kodigehalli, Bengaluru i.e.,
in respect of appellant No.1 and 3 and in respect of
appellant No.2 she is a married daughter and wife of
appellant No.3. Hence, it is clear that the appellants are in
possession of the property.
9. Now, the question is that who is in possession
of the suit property and the same is a matter of trial and
both of them can make their claim before the Trial Court
to prove the fact that who are in possession of the suit
schedule property as on the date of filing of the suit.
Once, the suit summons have not been served on the
appellants herein, the Trial Court ought to have taken note
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of the said fact instead of making erroneous approach
while giving the reasons that the appellants ought to have
filed a suit for declaration and the very approach of the
Trial Court is erroneous. Whether the suit has to be filed
for declaration or for injunction and whether they are
established their possession is a matter of trial. However,
taking note of the fact that the suit was filed in the year
2006 and the same was decreed in the year 2008 and
miscellaneous petition was filed in the year 2011 and this
appeal is pending from 2016 and the documents are also
produced under Order 41 Rule 27 of CPC before this Court
and same can be produced before the Trial Court to
establish their respective contention and the matter can be
considered on merits by giving an opportunity to both the
parties. Hence, impugned order dated 05.03.2016 passed
in Mis. No.25173/2011 requires to be set aside.
10. In view of the discussions made above, I pass
the following:
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MFA No. 3185 of 2016
Order
The impugned order dated 05.03.2016 passed in
Miscellaneous No.25173/2011 is set aside and
consequently, the application filed under Order IX Rule 13
of CPC is allowed and original suit in O.S.No.17516/2006
is restored.
The Trial Court is directed to dispose off the suit
within a time bound of six months since the suit is only for
the relief of bare injunction. The Trial Court is directed to
take up the matter on 03.07.2023.
The counsel for the appellant is directed to file
written statement on 03.07.2023. The parties are directed
to appear voluntarily before the Trial Court without
expecting notice from it and also assist the Trial Court in
disposal of the matter within the stipulated time.
Sd/-
JUDGE
SN
