Karnataka High Court
Sri Venkateshwar Rathod vs Sri T Hemantha Kumar on 8 April, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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CRP No. 147 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CIVIL REVISION PETITION NO. 147 OF 2023 (IO)
BETWEEN:
1. SRI.VENKATESHWAR RATHOD,
S/O LATE SAJU RATHOD,
AGED ABOUT 54 YEARS,
R/AT FLAT No.404, NEELANJANE
APARTMENT IGEC MN RD,
NAGARABHAVI, BENGALURU-560 072.
No.77/A, 9TH MAIN ROA,
4TH CROSS, HAMPINAGAR,
VIJAYNAGAR II STAGE,
BANGALORE-560 104.
...PETITIONER
(BY SRI.CHIKKANAGOUDAR.L.S, ADVOCATE)
Digitally AND:
signed by
KIRAN
KUMAR R 1. SRI.T.HEMANTHA KUMAR,
Location:
HIGH S/O LATE T.THIPPESWAMY,
COURT OF SINCE DECEASED
KARNATAKA
REPRESENTED BY HIS LR
SMT.ROOPA HEMANTH,
W/O LATE T.HEMANTHA KUMAR,
AGED ABOUT 46 YEARS,
STATED TO BE RESIDING AT
No.5573, VILLAGE CENTRE DRIVE CENTRE VILLE,
VA 20120, UNITED STATES OF AMERICA,
REPRESENTED BY HER DULY CONSTITUTED
ATTORNEY HOLDER
SRI.MANJUNATHA NAGARPPA,
S/O S.NAGAPPA,
-2-
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CRP No. 147 of 2023
AGED ABOUT 49 YEARS,
R/AT No.133, BLOCK-I, SHOBHA DEW FLOWER,
JK.P.NAGAR I STAGE,
BANGALORE-560 078.
2. SRI.T.VEERABHADRAPPA,
S/O LATE T.THIPPESWAMY,
ABED ABOUT 62 YEARS,
R/AT FLAT No.404, "NEELANJANA APARTMENTS'
ISEC MAIN ROAD, NAGARABHAVI,
BANGALORE-560 072.
...RESPONDENTS
(BY SRI. JAI PRAKASH RAO, ADVOCATE FOR R-1 & R-2)
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 03.12.2022 PASSED IN
MISC.No.2082/2017 ON THE FILE OF THE XIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT,
BANGALORE, ALLOWING THE PETITION FILED UNDER ORDER 9
RULE 13 OF CPC.
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. These facts are not in dispute:
(a) On 01.09.2008, deceased T.Hemantha Kumar--
respondent No.1 herein, instituted a suit in O.S.
No.5889 of 2008 for eviction against the petitioner.
(b) It was his case that the suit property--a residential
house belonged to him and his brother, and under a
registered partition deed dated 28.02.2008, the
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entire property bearing Site No.77/A was given to his
share.
(c) It was stated that he and his brother had in fact
inducted the petitioner as a tenant in the year 2004
and since, he was a chronic defaulter. While in the
United States of America, he was constrained to
terminate the tenancy through his duly constituted
Power of Attorney holder S.Nagappa (his father-in-
law).
(d) It may be pertinent to state here that T.Hemanth
Kumar, at the relevant point in time, was a citizen of
the United State of America and was residing there.
(e) On 16.12.2010, the suit for ejectment filed in O.S.
No.5889 of 2008 was decreed and the petitioner was
directed to quit and deliver the vacant possession of
the suit property within six months.
(f) The petitioner challenged the said decree of eviction
by filing an appeal before this Court in R.F.A.
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No.1019 of 2011 which was also dismissed on
18.08.2011.
(g) The petitioner, on 28.03.2013 i.e., nearly two years
after he lost possession, instituted a suit in O.S.
No.25557 of 2013 seeking for specific performance of
an agreement of sale stated to have executed on
06.12.2004 in his favour in respect of the suit
property by T.Hemanth Kumar and stated that he
had paid a sum of Rs.84,60,000/- out of the agreed
sale consideration of Rs.85,00,000/-.
(h) In the said suit, the petitioner stated that T.Hemanth
Kumar and his brother were residing at No.109, 9th
Main road, 2nd "A" Cross, RPC Layout, Vijayanagar II
Stage, Bangalore-560040".
(i) In this suit, the summons ordered to T.Hemanth
Kumar and his brother was returned with an
endorsement stating that "no such person in the
furnished address" and on the basis of the said
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endorsement, the suit summons by way of paper
publication was taken and thereafter, T.Hemanth
Kumar and his brother were place ex parte.
(j) On the basis of this ex parte decree passed on
25.02.2014, the petitioner proceeded to file an
execution proceeding in E.P. No.25041 of 2014 and
also obtained a sale deed from the Court.
(k) On 28.04.2016, T.Hemanth Kumar passed away in
the United State of America leaving behind his wife,
who had succeeded to his estate.
(l) It is stated that his wife--Smt.Roopa Hemanth came
across a notice issued regarding undervaluation of
the sale deed from the District Registrar's office and
immediately after verification, she learnt about the
filing of the suit in O.S. No.25557 of 2013 against her
husband--T.Hemanth Kumar, in which he was placed
ex parte and decree was obtained.
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(m) Smt.Roopa, on 09.01.2017, instituted a suit in O.S.
No.249 of 2017 through her Power of Attorney holder
seeking for a declaration that the judgment and
decree obtained against her husband in O.S.
No.25557 of 2013 was null and void.
(n) As the matter stood thus, on 04.02.2017, the
petitioner herein filed another execution proceedings
in E.P. No.25015 of 2017 seeking for delivery of
possession, without even disclosing the death of
T.Hemanth Kumar.
(o) The petitioner also entered appearance in O.S.
No.249 of 2017 which was filed by the wife of
T.Hemanth Kumar and he ultimately filed a written
statement but even in the written statement, he did
not disclose the filing of E.P. No.25015 of 2017.
(p) On 24.04.2017, the petitioner broke open the lock of
the petition premises with the aid of Police and took
possession.
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(q) Immediately thereafter, on 25.04.2017, Roopa
Hemanth filed an application for restitution of
possession in E.P. No.25015 of 2017 on the ground
that she was dispossessed by playing fraud on the
Court.
(r) The Executing Court by an order dated 14.07.2017
directed restitution of possession to Roopa Hemanth
and she was immediately given possession of the
premises on 09.10.2017.
(s) Roopa Hemanth thereafter proceeded to file a
petition in Misc.Petition No.25082 of 2017 as the
legal representative of T.Hemanth Kumar seeking to
set aside the ex parte decree for specific performance
obtained by the petitioner in O.S. No.25557 of 2013.
(t) This Misc. Petition has been allowed by the impugned
order and hence, the petitioner has present preferred
the instant civil revision petition.
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2. As could be seen from the above narration of facts, it
is clear that that the petitioner was inducted as a tenant
into the suit premises by the deceased T.Hemanth Kumar
and his brother. It is also clear that from the above that
T.Hemanth Kumar instituted a suit in O.S. No.5889 of
2008 against the petitioner seeking for his eviction and the
said suit was decreed after contest.
3. The appeal filed thereafter by the petitioner in R.F.A.
No.1019 of 2011 was also dismissed and ultimately,
Hemanth Kumar secured possession of the property
through the process of the Court.
4. The Trial Court, in the impugned order, has noticed
that in these proceedings, which were initiated in the year
2008 and was pending till 2011, the petitioner did not set
up the plea that he had agreements of sale dated
06.12.2004 and 15.09.2007 executed in his favour.
5. The Trial Court has noticed that the petitioner had
instituted a suit seeking for enforcement of the agreement
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of sale on 28.03.2013 and in this suit, the summons of the
suit were served on T.Hemanth Kumar and ultimately,
notice was held to be served on the basis of a paper
publication.
6. The Trial Court in the impugned order also recorded
a clear finding that T.Hemanth Kumar was a resident of
the United States of America and despite this, the address
was furnished as if he was residing in Bengaluru and as a
consequence, the placing of T.Hemanth Kumar ex parte
and passing the judgment and decree granting a specific
performance could not be sustained.
7. The Trial Court, by the impugned order, has found
that the delay in filing the Miscellaneous Petition was
minor and taking note of the fact that T.Hemanth Kumar's
wife had instituted a suit, she was entitled to exclusion of
time that has been spent in prosecution of the suit and the
appeal filed thereafter, and the delay was hence required
to be condoned.
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8. In my view, the reasoning of the Trial Court in
setting aside the ex parte decree passed against
T.Hemanth Kumar cannot be found fault with, especially
when it is noticed that the suit summons were not served
on T.Hemanth Kumar and he was a resident of the United
States of America.
9. The further fact that the notices were held to be
served on him on the basis of the paper publication also
goes to show that he was not given an opportunity to
defend himself. Having regard to the fact that the suit
was one for specific performance filed by the tenant after
he had been dispossessed under a valid decree, the Trial
Court was justified in passing the impugned order in
setting aside the ex parte decree.
10. The observations of the Trial Court that the petitioner
herein did not choose to contend that the suit filed for
ejectment that an agreement of sale has been executed in
his favour in the year 2004 and 2007, would also indicate
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that the Trial Court has taken note of the fact that the
conduct of the petitioner was not proper.
11. It may be pertinent to state here that in the suit for
ejectment filed by T.Hemanth Kumar, he had clearly
stated that he was being represented by S.Nagappa, who
is a resident of Mysore.
12. Even in the appeal filed by the petitioner against the
decree of ejectment in RFA No.1019 of 2011, the address
of Hemanth Kumar was shown to be at Mysore and he was
admittedly represented by his General Power of Attorney
holder.
13. However, in the suit filed for specific performance,
the petitioner has chosen to given the address of Hemanth
Kumar as being a resident of Bengaluru.
14. In this suit, there was a clear evidence recorded that
Hemanth Kumar was being represented by his father-in-
law as a General Power of Attorney holder and that he was
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a resident of the United State of America and this is also
reflected in the judgment.
15. In the light of the fact that the Civil Court in the suit
filed for ejectment against the petitioner had recorded that
T.Hemanth Kumar was a resident of USA, it is obvious that
the address of T.Hemanth Kumar was falsely shown to be
in Bengaluru. On this score alone, the ex parte decree
passed against T.Hemanth Kumar was liable to be set
aside.
16. If a plaintiff is aware that the defendant is not
residing in India and is actually a resident of the United
States, by virtue of the earlier litigation between them, it
becomes apparent that an attempt was being made to
obtain an ex part decree by furnishing an address of the
defendant being a resident of Bengaluru.
17. The relevant portion of the judgment and decree
passed in O.S. No.5889 of 2008 reads as follows:
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"7. ... ... It has come in evidence of PW-1
that the plaintiff is his son-in-law and the
plaintiff is residing in USA. ... ..."
18. In the result, I find no error in the reasoning offered
by the Trial Court and the Civil Revision Petition is
therefore dismissed.
19. The Trial Court shall endeavour to dispose of the suit
as expeditiously as possible, at any rate within a period of
six months from the date of receipt of a copy of this order.
20. As both the parties are present before this Court,
they are directed to appear before the Trial Court on
03.06.2024 and take further instructions.
Sd/-
JUDGE
RK
CT: SN
