Karnataka High Court

Sri. V. Bheemappa vs V. Kotteshappa on 8 February, 2024

                                          -1-
                                                 NC: 2024:KHC-D:2826
                                                  RSA No. 100863 of 2019




                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                     DATED THIS THE 8TH DAY OF FEBRUARY, 2024

                                        BEFORE

                         THE HON'BLE MR JUSTICE R.NATARAJ

                  REGULAR SECOND APPEAL NO.100863/2019(SP)
            BETWEEN:

            SRI V. BHEEMAPPA S/O. LATE RAMAPPA,
            AGED ABOUT 66 YEARS, OCC: COOLIE AND AGRICULTURE,
            R/O: WARD NO.7 BEHIND P.L.D. BANK,
            MADDER ONI, KOTTUR - 583 134,
                                                          -       APPELLANT
            (BY SRI VIDYAVATI M. KOTTURSHETTAR, ADVOCATE)

            AND:

                 V. KOTTESHAPPA S/O. LATE RAMAPPA SINCE DEAD BY LRS.

            1.   SMT. HULIGEMMA W/O. LATE V. KOTTRESHAPPA
                 AGED ABOUT 58 YEARS, OCC: HOUSEHOLD WORK.

            2.   SMT. SUNITHA D/O. LATE V. KOTTRESHAPPA,
                 AGED ABOUT 36 YEARS, OCC: HOUSEHOLD.

            3.   SRI RAMAJJA S/O. LATE V. KOTTRESHAPPA,
                 AGED ABOUT 32 YEARS, OCC:NIL.
Digitally
signed by   4.   SMT. BHUVANESHWARI D/O. LATE V. KOTTRESHAPPA,
VINAYAKA         AGED ABOUT 37 YEARS, OCC: HOUSEHOLD WORK.
BV
            5.   SMT. VINUTHA D/O LATE V. KOTTRESHAPPA
                 AGED ABOUT 27 YEARS, OCC: HOUSEHOLD WORK,
                 R/O WARD NO.7, BEHIND OLD P.L.D BANK,
                 KOTTUR TOWN, KUDALAGI-583134,
                                                       -    RESPONDENTS
            (BY SRI T. BASAVANAGOUD, ADVOCATE FOR R2 TO R5;
            R1 IS DECEASED)

                  THIS R.S.A. IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT
            & DECREE DATED 11.10.2019 PASSED IN R.A. NO. 07/2017 BY THE SR.
            CIVIL JUDGE & JMFC, KUDLIGI, DISMISSING THE APPEAL AND
            CONFIRMING THE JUDGMENT AND DECREE DTD 02.09.2015 PASSED IN
            O.S. NO.76/2015 BY THE CIVIL JUDGE & JMFC, KUDLIGI, DECREEING
            THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT & ETC.
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                                         NC: 2024:KHC-D:2826
                                            RSA No. 100863 of 2019




      THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This regular second appeal is filed by the defendant in

O.S. No. 76/2015 challenging the judgment and decree dated

02.09.2015 passed therein as well as the order dated

11.10.2019 passed by the learned Sr. Civil Judge & JMFC,

Kudligi in R.A. No. 7/2017 by which an application filed by him

under Section 5 of the Limitation Act, 1963, was rejected and

the appeal stood dismissed.

2. The parties shall henceforth be referred to as they were

arrayed before the trial court.

3. The suit in O.S. No. 76/2015 was filed for specific

performance of an agreement of sale dated 21.06.2014 for a

total sale consideration of Rs.2,00,000/- out of which a sum of

Rs.1,00,000/- was allegedly paid by the plaintiff to the

defendant. The plaintiff claimed that the defendant was his

younger brother who even after receipt of a sum of

Rs.1,00,000/- did not comply his part of the contract and did

not conclude the transaction. As a result the plaintiff caused a

notice on 07.01.2015 which was acknowledged on 12.01.2015.

However, the defendant did not comply with the demand made

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in the notice. On the contrary, he tried to alienate the suit

property in favour of third parties which compelled the plaintiff

to seek for specific performance of the agreement.

4. The suit summons was allegedly refused by the defendant

and therefore he was placed exparte. The trial court recorded

the evidence of the plaintiff who marked Exs.P.1 to P.7. It also

recorded the evidence of two other witnesses in proof of the

execution of the agreement and as there was no challenge to

the evidence, decreed the suit in terms of the judgment and

decree dated 02.09.2015.

5. Being aggrieved by the said judgment and decree, the

defendant filed a belated appeal in R.A. No. 7/2017 and also

filed an application under Section 5 of the Limitation Act for

condonation of delay of 510 days in filing the appeal.

6. The first appellate court recorded the evidence of the

defendant and in terms of its order dated 11.10.2019 held that

the cause shown for the delay was not satisfactory and

therefore rejected the application and consequently, dismissed

the appeal in terms of the order dated 11.10.2019. Being

aggrieved by the said judgment and decree of both the Courts,

the defendant has filed this appeal.

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7. The learned counsel for the defendant submitted that the

defendant did not refuse to accept the notice as alleged and

therefore the trial court committed an error in placing the

defendant exparte. She contended that the defendant was

completely unaware of the judgment and decree passed by the

trial court and that he came to know of the said judgment only

on 03.02.2017. She therefore contended that since the parties

are closely related, an opportunity be granted to the defendant

to contest the suit on merits.

8. Per contra, learned counsel for the plaintiff contended

that the defendant had refused to accept the suit summons and

he did not contest the suit and therefore there was no other

alternative for the trial court than to decree the suit. He

contends that both the plaintiff and the defendant are residing

in the same village and therefore the defendant cannot claim

that he was not aware of the proceedings. He further submits

that the defendant did not even take steps to cross examine

the plaintiff and also to lead evidence and therefore there is no

error in decreeing the suit. He further contends that since the

defendant knew about the decree granted by the trial court, the

cause shown for seeking condonation of delay was false and

NC: 2024:KHC-D:2826

therefore the first appellate court was justified in rejecting the

application and consequently dismissing the appeal.

9. This appeal was admitted to consider the following

substantial question of law.

Whether the trial court had violated the procedure prescribed under Order V Rule 17 and 19 CPC before accepting that the defendant had refused to accept the summons?

10. The copy of the order sheet furnished by the learned

counsel for the defendant shows that on 30.06.2015, the

summons issued to the defendant was refused. The trial court

therefore placed the defendant exparte. It is necessary to note

that under Order V Rule 17, whenever a defendant refuses

service of summons, the serving Officer shall enclose a copy of

the summons on the outer door or some other conspicuous part

of the house in which the defendant ordinarily resides or carries

on business or works for gain and shall then return the original

to the Court from which it was received with a report endorsed

therein stating that he has so affixed the copy, the

circumstances under which he did so and the name and

address of the person by whom the house was identified and in

whose presence the copy was affixed.

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11. Whenever a summons is refused it is incumbent upon the

court to comply Order V Rule 19 CPC which reads as under:

"19. Examination of serving serving officer.- Where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit."

12. In the present case, there is nothing on record to show

that the provisions or Order V Rule 19 CPC was complied and

therefore, the trial court must have been cautious while placing

the defendant exparte as that would result in serious civil

consequences.

13. If the aforesaid procedure was not complied with by the

trial court, the order placing the defendant exparte was

improper and therefore no notice or knowledge of the pendency

of the proceedings could be attributed to the defendant. The

first appellate court must have considered this and must have

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relegated the parties back before the trial court with