Karnataka High Court
Sri. Shamanna vs Mrs. Rajini T on 2 April, 2024
-1-
NC: 2024:KHC:13523
MFA No. 901 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 901 OF 2023 (CPC)
BETWEEN:
SRI. SHAMANNA
AGED ABOUT 71 YEARS,
S/O. LATE SEETHARAMAIAH,
RESIDING AT NO. 53,
JAYARAMSHETTY LAYOUT,
RAJARAJESHWARI TEMPLE STREET,
9TH CROSS, K.R. PURAM,
BANGALORE-560 036.
REPRESENTED BY HIS SPECIAL
POWER OF ATTORNEY HOLDER,
MR. DHRUV. P,
AGED ABOUT 31 YEARS,
S/O. MR. PRAKASH,
RESIDING AT NO. 11,
Digitally
3RD CROSS, BACHANNA LAYOUT,
signed by BS KASTURI NAGAR,
RAVIKUMAR B. CHANNASANDRA, KALYAN NAGAR,
Location:
HIGH BANGALORE-560 043.
COURT OF ...APPELLANT
KARNATAKA (BY SRI. BHARADWAJ K.R., ADVOCATE)
AND:
MRS. RAJINI T
AGED ABOUT 61 YEARS,
D/O. SRI. P. SUBRAMANI,
RESIDING AT NO. 23,
GOKULAM,
PANCHAVATI LAYOUT,
VIDYANANGAR (SAAIPALYA),
-2-
NC: 2024:KHC:13523
MFA No. 901 of 2023
THANISANDRA MAIN ROAD,
BANGALORE-560 045.
...RESPONDENT
(BY SRI. VIJAY A.M., ADVOCATE)
THIS MFA FILED UNDER ORDER 43 RULE 1(d) OF CPC,
AGAINST THE ORDER DATED 13.03.2020 PASSED IN
MISC.NO. 304/2018 ON THE FILE OF THE XX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH.32), DISMISSING THE PETITION FILED UNDER ORDE IX
RULE 13 READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner in Miscellaneous Petition No.304/2018
on the file of the XX Additional City Civil and Sessions
Judge, Bengaluru City has filed this appeal challenging an
order dated 13.03.2020 by which, a petition filed by him
under Order IX Rule 13 of CPC was rejected.
2. The respondent herein had filed
O.S.No.2601/2015 for declaration of his title to a suit
property and for consequential relief of injunction to
restrain the appellant herein from interfering with his
possession. The appellant was served with the summons
and he appeared through his power of attorney holder.
NC: 2024:KHC:13523
However, he did not file his written statement and did not
contest the suit for reasons unknown. The Trial Court
therefore left with no other alternative, recorded the
evidence of the plaintiff/respondent herein and decreed
the suit for declaration of title and granted consequential
injunction to restrain the appellant from interfering with
the possession of the respondent.
3. Being aggrieved by the said ex parte judgment
and decree, the appellant filed a petition under Order IX
Rule 13 of CPC to recall the ex parte judgment and decree.
The appellant contended that he was 65 years old and was
suffering from various ailments and was therefore unable
to venture out of his house. Hence, he requested his
power of attorney to contest the suit on his behalf. He
contended that he was under the bona fide impression
that his power of attorney was diligently pursuing the
case, but he realised that the suit was decreed ex parte
after receiving a copy of the records in O.S.No.2601/2015.
He claimed that the suit property was the only property
NC: 2024:KHC:13523
that he had earned out of the savings in life and the ex
parte judgment and decree affected his property rights in
the suit schedule property and therefore, an opportunity
be granted to contest the suit.
4. The notice of the petition was issued to the
respondent herein and since the respondent did not
appear, he was placed ex parte and the case was posted
for evidence of the petitioner. The power of attorney of the
petitioner was examined as PW.1 and he marked Exs.P.1
to 6. The Trial Court after perusing the material on record
held that when the power of attorney of the petitioner
appeared in the suit through an advocate, he cannot
contend that he was placed ex parte. It also held that the
petitioner made a serious allegation that his power of
attorney had colluded with the respondent, but the
petitioner did not take any steps to cancel the power of
attorney. Therefore, it held that action or inaction on the
part of the power of attorney also bound the petitioner.
The Trial Court therefore rejected the petition filed by the
NC: 2024:KHC:13523
petitioner in terms of the impugned order. Being aggrieved
by the said order the petitioner is before this Court.
5. The learned counsel for the petitioner submits
that the suit is filed for declaration and injunction in
respect of an immovable property, in which, the appellant
was interested and therefore having regard to the
contentions urged in the miscellaneous petition, the Court
below must have granted an opportunity to the appellant
to contest the suit on merits, by imposing conditions that
were just and reasonable.
6. Per contra, the learned counsel for the
respondent submits that the notice of the suit in
O.S.No.2601/2015 was admittedly served on the
appellant and his power of attorney had engaged the
services of an advocate. He submits that the appellant did
not dispute that he had appointed a power of attorney and
therefore if the power of attorney was no diligent, the
appellant cannot escape the effect of not defending the
suit.
NC: 2024:KHC:13523
7. I have considered the submissions made by the
learned counsel for the petitioner and the learned counsel
for the respondent.
8. Ex.P.6 which was marked before the Trial Court
did establish that the appellant was unwell and therefore,
was forced to appoint a power of attorney. The impugned
order passed by the Court discloses that the power of
attorney had entered appearance through an advocate,
but later did not defend the suit effectively by filing written
statement and by cross-examining the witnesses for the
respondent. Therefore, though the cause shown for
recalling the ex parte judgment and decree is not
completely satisfactory, yet since the suit is filed for the
declaration and injunction in respect of an immovable
property, where the appellant is interested, an opportunity
deserves to be granted to the appellant to contest the suit
on merits by suitably compensating the respondent for the
loss of time and money. Since a doubt was expressed by
the respondent that the appellant is not alive, the
NC: 2024:KHC:13523
appellant was directed to be present before the Court. The
appellant did not appear on the ground that he was on
dialysis. This Court therefore appointed an Advocate to
visit the house of the appellant and ascertain the
correctness of the claim of the respondent. The Advocate
Commissioner has reported that the appellant is doing
fine. Therefore, the appellant shall appear in person before
the Court at the time of giving his evidence or he shall
record his evidence in the presence of a Commissioner
who may be appointed by the Court and shall not under
any circumstance authorize the power of attorney to
appear and adduce evidence on his behalf.
9. In view of the above, this appeal is allowed
and the impugned order passed by the Trial Court is set
aside, which is however subject to the condition
mentioned above and also subject to payment of cost of
Rs.25,000/- payable by the appellant to the respondent
before the Trial Court on the next date. The petitioner
NC: 2024:KHC:13523
shall appear before the Trial Court on 22.04.2024 and file
his written statement on the said date.
Sd/-
JUDGE
GSR
