Karnataka High Court
Sri Kumar vs Smt Gowramma N on 4 April, 2024
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MFA No. 6284 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 6284 OF 2014 (CPC)
BETWEEN:
SRI. KUMAR
S/O LATE RAMASWAMY R,
AGED ABOUT 50 YEARS,
R/AT NO.107, 2ND MAIN,
6TH CROSS, VINAYAKA NAGARA,
ADUGODI VILLAGE,
BANGALORE-560 030.
...APPELLANT
(BY SRI. P.S. GURMURTHY, ADVOCATE FOR
MANASA B. RAO, ADVOCATE )
AND:
1. SMT. GOWRAMMA N
W/O SRI A. NARAYAN RAO,
AGED ABOUT 71 YEARS,
Digitally
signed by BS
RAVIKUMAR 2. SHRI NAGARAJ N.
Location: S/O A. NARAYANA RAO,
HIGH AGED ABOUT 57 YEARS,
COURT OF
KARNATAKA
3. SHRI SHANKARA N
S/O A. NARAYANA RAO,
AGED ABOUT 51 YEARS,
4. SHRI RAVI PRAKASH N
S/O A. NARAYANA RAO,
AGED ABOUT 49 YEARS,
5. SHRI ARUN KUMAR N,
S/O A NARAYANA RAO,
AGED ABOUT 40 YEARS
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MFA No. 6284 of 2014
6. SHRI GOPAL N
S/O A NARAYANA RAO,
AGED ABOUT 40 YEARS,
RESPONDENTS NO.1 TO 6 ARE
R/AT NO.102, 1ST CROSS,
(NEW CORPORATION CROSS NO.6),
2ND MAIN, VINAYAKA NAGARA,
AUDUGODI VILLAGE,
BANGALORE-560 012.
7. SHRI SHIVALINGAPPA,
S/O LATE HONNAPPA,
AGED ABOUT 69 YEARS,
R/AT NO.107, 2ND MAIN,
VINAYAKA NAGAR,
ADUGODI VILLAGE,
BANGALORE-560 012.
...RESPONDENTS
(BY SRI. A.G.SRIDHAR, ADVOCATE FOR RESPONDENT NOS.2 TO 6;
VIDE ORDER DATED 19.04.2021 SERVICE OF NOTICE TO
RESPONDENT NOS.1 AND 7 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER ORDER 43, RULE 1(d) OF CPC,
AGAINST THE ORDER DATED 11.09.2014 PASSED IN MISC.PETITION
NO.989/2010 ON THE FILE OF 24TH ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE, DISMISSING THE MISC.PETITION
FILED UNDER ORDER 9, RULE 13, READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner in Misc.No.989/2010 on the file of the XXIV
Additional City Civil and Sessions Judge, Bengaluru City
(henceforth referred to as 'Trial Court') has filed this appeal
challenging an order dated 11.09.2014 in terms of which, a
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petition filed by him under Order IX Rule 13 read with Section
151 of CPC was rejected.
2. The respondents herein/plaintiffs filed
O.S.No.1089/2009 for perpetual injunction in respect of a
vacant site. The respondents claimed to be the owners of the
said property. The suit summons was served on the appellant
herein, who was arrayed as defendant No.3 in the suit and he
entered appearance through his advocate on 04.12.2009 and
the case was adjourned to 05.06.2010. At the request of the
plaintiffs, the suit was advanced to 28.01.2010 and the suit
was ordered to be called on 01.02.2010. On 01.02.2010, the
Court noted that the notice issued to the defendant No.1 was
served. It therefore, posted the case for appearance of the
defendant No.1. On the same day, the plaintiffs filed a memo
to delete the defendant No.2 from the array of the parties.
Consequently, the Court allowed the memo and permitted the
plaintiffs to delete the defendant No.2. The suit was listed for
amendment of the plaint and to furnish an amended plaint on
05.06.2010. On the said day, the defendant No.1 was placed
ex-parte and again notice was ordered to the defendant
No.3/appellant herein. The case was adjourned to 21.09.2010.
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On the said day, the statement of the defendant No.3/appellant
herein was taken as "Not filed" and case was listed for plaintiffs
evidence on 28.09.2010. On 28.09.2010, PW.1 was examined
and exhibits were marked. The Court heard the arguments on
the same day and posted the case for judgment on 30.09.2010.
3. After the judgment was pronounced, the appellant
herein filed a Miscellaneous Petition under Order IX Rule 13
read with Section 151 of CPC contending that he was prevented
by sufficient cause from not filing the statement in time since
he was suffering from enteric fever.
4. This petition was opposed by the respondents
herein/plaintiffs in the suit, who contended that the cause
shown was imaginary and false.
5. Based on these contentions, Miscellaneous Petition
was set down for trial. The appellant herein was examined as
PW.1 and he marked a copy of the judgment and decree
passed in O.S.No.1089/2009 as Ex.P1 and medical certificate
as Ex.P2. The respondent No.2 herein was examined as RW.1
and he marked a copy of the order sheet in O.S.No.1089/2009
as Ex.R1, a copy of the order sheet in O.S.No.2993/2009 filed
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by the appellant herein as Ex.R2, a copy of the memo filed to
withdraw O.S.No.2993/2009 as Ex.R3 and the objections filed
by the respondents herein to the memo as Ex.R4.
6. Based on the oral and documentary evidence, the
Trial Court held that the appellant herein had not made out a
case for recalling the judgment and decree passed in
O.S.No.1089/2009. It held that though Ex.P2 was marked to
establish that the appellant/petitioner was unwell and was
suffering from enteric fever from 15.09.2010 to 20.10.2010, he
did not examine the doctor who had issued certificate and did
not produce any material to show that he was under treatment.
It further held that the appellant/petitioner avoided appearing
before the Court for nearly 9 ½ months and did not participate
in the proceedings and therefore, his absence was not justified.
Consequently, it dismissed the petition in terms of the
impugned order.
7. Being aggrieved by the said order, this appeal is
filed.
8. The learned counsel for the appellant submits that
the suit which was listed on 05.06.2010 was advanced without
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notice and knowledge of the appellant/defendant
No.3/petitioner and the case stood advanced to 01.02.2010.
He contends that the Court for whatever reason directed fresh
summons to be issued to the defendant No.3. However, even
before the process fee was paid and even before the notice was
issued, it construed that the defendant No.3 had not filed
statement and hence, posted the case for evidence and
thereafter, without loss of much time, posted the case for
pronouncement of judgment. He submits that the suit is filed
for perpetual injunction in respect of a vacant site which
continues to be vacant even as on date. He contends that
since the appellant was prevented by sufficient cause from
appearing before the Court and instructing his advocate to file
statement on time, the Court must have considered the case
sympathetically and liberally having regard to the
consequences of the ex-parte judgment and decree. He
contended that the Trial Court doubted the certificate issued by
the doctor declaring that the appellant was suffering from
enteric fever on the ground that Doctor was not examined. He
contends that there was no reason to doubt the correctness of
the certificate issued by the doctor, which was marked as
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Ex.P2. Even otherwise, he contends that the Trial Court must
have put the appellant on terms and must have granted an
opportunity to the appellant to contest the suit on merits. In
support of this contention, the learned counsel relied upon the
judgment of the Hon'ble Apex Court in the case of G.P.
Srivastava vs. R.K. Raizada and others [(2000) 3 SCC
54], judgment of the Madras High Court in the case of Minor
Palniammal vs. Pichiyan [1998-1-LW-438] and an
unreported judgment of this Court in MFA No.3722/2022.
9. Per contra, learned counsel for the respondent
Nos.2 to 6 contends that the appellant has unnecessarily
prolonged the proceedings before the Court by not
participating. He submits that the appellant had the liberty to
file a written statement from 04.12.2009 till 05.06.2010 when
the case was listed. He submits that the advancement of the
suit from 05.06.2010 to 01.02.2010 did not prejudice the
appellant in any manner as between 01.02.2010 and
05.06.2010, the case was listed only on 01.02.2010 on which
day, the case was posted for appearance of the defendant No.1
and for deletion of the defendant No.2. He contends that on
05.06.2010, the appellant was bound to appear before the
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Court and file his written statement. He submits that since the
appellant did not appear on 05.06.2010, notice was issued to
the appellant/defendant No.3 and the case was posted on
21.09.2010. He submits that after the Court noticed that the
defendant No.3 had entered appearance through an advocate,
it took that defendant No.3 did not file written statement. He
contends that therefore, from 05.06.2010 till 21.09.2010, the
appellant had dragged on the proceedings without filing written
statement. He therefore, contends that the Court was justified
in not granting any indulgence to the appellant.
10. I have considered the submissions made by the
learned counsel for the appellant/defendant No.3 as well as the
learned counsel for the respondent Nos.2 to 6/plaintiffs.
11. The order sheet placed on record shows that the
case was adjourned from 04.12.2009 to 05.06.2010 awaiting
the service of notice to the defendant Nos.1 and 2. The Court
did not post the case for filing the written statement by the
defendant No.3. The respondents/plaintiffs seems to have
advanced the suit from 05.06.2010 to 01.02.2010 on which
day, the Court noticed that notice issued to the defendant No.1
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was served but the defendant No.1 did not appear. Therefore, it
posted the case for appearance of the defendant No.1. On the
same day, the respondents/plaintiffs filed a memo to delete the
defendant No.2 from the array of the parties, which was
permitted and case stood adjourned to 05.06.2010. Ideally,
the learned counsel for the defendant No.3/appellant must
have appeared on 05.06.2010 but the records disclose that
there was no appearance for the defendant No.3/appellant
herein. The Court held that service of notice to the defendant
No.1 was sufficient and since he was not present, placed him
ex-parte. The Court under the bonafide impression that
defendant No.3 had not appeared before it, had issued fresh
notice to defendant No.3. Thereupon on 21.09.2010, the Court
realized that defendant No.3 had already entered appearance
through counsel and held that the statement of the defendant
No.3 was not filed. When the appellant had brought out these
facts before the Trial Court and had sought for setting aside the
ex-parte judgment and decree, the Trial Court instead of
allowing the petition and directing the parties to obtain decree
on merits, went about witch-hunting and holding that the cause
shown by the appellant herein for not appearing before the
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Court was incorrect. This too was on the basis that the Doctor,
who issued certificate was not examined and therefore, medical
certificate was unreliable. It is hence clear that the Trial Court
had adopted a hyper technical approach while considering the
petition under Order IX Rule 13 of CPC. The judgment of the
Hon'ble Apex Court in the case of Parimal vs. Veena [AIR
2011 SC 1150] relied upon by the learned counsel for the
respondent Nos.2 to 6, was in the context of an ex-parte
judgment of dissolution of marriage and therefore, the Court
felt that the test whether the defendant was honest and
necessary had to be applied strictly. Consequently, the
judgment relied upon by the learned counsel for the respondent
Nos.2 to 6 is inapplicable to the facts and circumstances of this
case.
12. In the present case, it is stated by both the learned
counsel for the appellant and the learned counsel for the
respondent Nos.2 to 6 that the property in question is still a
vacant site and none of them have constructed any building
thereon. Therefore, directing the parties to face trial and
obtain judgment and decree on merits would be in the best
interest of both the parties. Likewise, in the judgment of this
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Court relied upon by him in the case of Kenchappa and
others vs. Smt. Yellamma and another [2010 (5) KCCR
SN 621], it was held that the question whether the cause
shown is sufficient or not depends on the facts and
circumstances set out in the case. In view of the above, an
opportunity deserves to be granted to the appellant to contest
the suit on merits.
13. Hence, this appeal is allowed. The impugned
order dated 11.09.2014 passed by the XXIV Additional City Civil
and Sessions Judge, Bengaluru City in Misc.No.989/2010 is set
aside. Consequently, the ex-parte judgment and decree dated
30.09.2010 passed by the XXIV Additional City Civil and
Sessions Judge, Bengaluru in O.S.No.1089/2009 is set aside,
which is however, subject to payment of cost of Rs.25,000/-
(Rupees Twenty Five Thousand only) payable by the
appellant/defendant No.3 to the respondent Nos.1 to
6/plaintiffs before the Trial Court. The cost of Rs.10,000/-
already paid shall be transmitted to the Trial Court to pass
suitable orders and the appellant/defendant No.3 shall deposit
remaining sum of Rs.15,000/- before the Trial Court or tender
it to the respondent Nos.1 to 6/plaintiffs before the Trial Court.
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It is made clear that the appellant/defendant No.3 shall file
written statement without fail before the Trial Court on the date
stipulated below and go on with the case without unduly
dragging the proceedings.
14. The appellant/defendant No.3 and the respondent
Nos.1 to 6/plaintiffs are directed to appear before the Trial
Court on 03.06.2024. It is made clear that if the
appellant/defendant No.3 does not file written statement on the
said date, the Trial Court may proceed to pass a fresh
judgment on the available evidence.
15. The Trial Court is requested to dispose off the suit
in accordance with the Karnataka (Case Flow and Management
in Subordinate Courts) Rules, 2005.
Sd/-
JUDGE
PMR
