Karnataka High Court
Smt Neelamma vs Sri J Shankar on 9 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:5542
MFA No. 8204 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 8204 OF 2018 (CPC)
BETWEEN:
1. SMT. NEELAMMA
D/O LATE K.KRISHNA REDDY,
AGED ABOUT 67 YEARS,
RESIDING AT NO.8/208, SFS,
1ST MAIN ROAD, AJIT MOTHER DAIRY,
YELAHANKA NEW TOWN,
BENGALURU-560064.
...APPELLANT
(BY SRI RAVI L.VAIDYA, ADVOCATE)
AND:
1. SRI J. SHANKAR
Digitally signed S/O LATE UMMANNA POOJARI,
by SHARANYA T AGED ABOUT 83 YEARS,
Location: HIGH MANAGING DIRECTOR,
COURT OF
KARNATAKA SOLAR AUTOMOBILE
INDIA PRIVATE LIMITED.,
NO.6, ST. JOHNS ROAD,
BENGALURU-560 042.
2. SMT. GOWRAMMA
SINCE DEAD BY HER LRS
2(a) SMT. USHA D/O LATE SRINIVASA REDDY,
AGED ABOUT 39 YEARS,
RESIDING AT NO.29,
1ST CROSS, 1ST STAGE,
-2-
NC: 2024:KHC:5542
MFA No. 8204 of 2018
OPP SAI MEDICALS, OKALIPURAM,
BENGALURU-21
2(b) SMT. SUNANDA
D/O LATE SRINIVASA REDDY,
AGED ABOUT 53 YEARS,
2(c) SMT. SAROJA
D/O LATE SRINIVASA REDDY,
W/O SRI. SURESH REDDY
AGED ABOUT 45 YEARS,
NOS.2(b) AND 2(c) ARE RESIDING
AT NO.6, GARVEBHAVI PALYA,
BEHIND BRIGHT FUTURE
ENGLISH SCHOOL, BEGUR HOBLI,
BENGALURU SOUTH TALUK
BENGALURU-560068.
2(d) SMT. VIMALA
W/O AYAPPA REDDY
D/O LATE SRINIVASA REDDY,
AGED ABOUT 51 YEARS
R/AT NO.442, 10TH MAIN ROAD,
2ND CROSS, DODDABANASWADI,
KALYANANAGAR 1ST BLOCK
BENGALURU-560 043
2(e) SMT. BHAGYA
W/O SRI. MUNI REDDY
D/O LATE SRINIVASA REDDY,
AGED ABOUT 49 YEARS
R/AT ALANAYAKANAHALLI,
SARJAPURA HOBLI,
BENGALURU SOUTH TALUK
BENGALURU.
2(f) SMT. S. ANASUYAMMA
AGED ABOUT 43 YEARS
D/O. LATE SUNDER RAM REDDY,
-3-
NC: 2024:KHC:5542
MFA No. 8204 of 2018
2(g) SRI.S.MANJUNATH REDDY
S/O LATE SUNDER RAM REDDY,
AGED ABOUT 43 YEARS
2(h) SMT. CHANDRAKALA
D/O LATE SUNDER RAM REDDY,
AGED ABOUT 40 YEARS
NOS.2(f) TO 2(h) ARE
RESIDING AT NO.61,
SOUTH END MAIN ROAD,
BASAVANAGUDI,
BENGALURU-04.
...RESPONDENTS
[BY SRI B.L. ACHARYA, SENIOR COUNSEL FOR
SRI ROHAN BABU JOSEPH, ADVOCATE FOR R1;
NOTICE TO R2(a & b) ARE DISPENSED WITH
VIDE ORDER DATED 15.12.2018;
NOTICE TO R2 (c to h) ARE DISPENSED WITH
VIDE ORDER DATED 19.12.2018]
THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CPC,
AGAINST THE ORDER DT.19.07.2018 PASSED IN
MISC.NO.616/2013 AND ALSO JUDGMENT AND DECREE (IN
O.S.NO.4911/2012) ON THE FILE OF THE 24TH ADDITIONAL
CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY (CCH-6),
DISMISSING THE PETITION FILED U/O.9 RULE 13 R/W SEC.151
OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-4-
NC: 2024:KHC:5542
MFA No. 8204 of 2018
JUDGMENT
1. Heard learned counsel for appellant and also
learned counsel for respondents.
2. This Miscellaneous First Appeal is filed rejection
of the petition filed by the appellant under Order 9 Rule 13
R/w Section 151 of CPC wherein the appellant prayed the
Court to set-aside judgment and decree passed in
O.S.No.4911/2012.
3. The factual matrix of the case of the plaintiff
before the Trial Court in O.S.No.4911/2012 against the
appellant herein for the relief of declaration and
permanent injunction that he had purchased the property
and he has been put in possession and inspite of it the
defendant/appellant herein causing obstruction and
interfering with the possession and hence he has sought
for the relief of declaration and permanent injunction. The
notice was issued against the appellant herein and the
same was returned with an endorsement that he has
NC: 2024:KHC:5542
refused to receive the suit summons and the said
endorsement is made by the Court Ameena. The Trial
Court proceeded to consider the case of
respondent/plaintiff and decreed the suit vide judgment
dated 30.10.2012 granting the relief of permanent
injunction and declined to grant the relief of declaration.
Being aggrieved by the said order, miscellaneous
proceedings initiated by the appellant herein and the same
is resisted by the respondent by filing the objections.
Hence, the present appellant has been examined as PW1
and got marked document Ex.P1 to Ex.P5 and also the
respondent No.1 has been examined as RW1.
4. The Trial Court having considered the material
on record, particularly evidence of PW1, comes to the
conclusion that he has not taken any steps to examine the
said Ameena and ought to have examined the Court bailiff
to prove the allegation made against him. The petitioner
has not taken any pain to call said bailiff to Court and
putting in witness box for the purpose of
NC: 2024:KHC:5542
cross-examination for the reason best known to her. The
Trial Court also taken note of admission given by PW1 in
the cross-examination wherein he has stated that she
came to know about the filing of suit on 30.08.2012 and
respondent No.1 filed police complaint and hence the very
contention of the appellant herein is falsified in view of
admission and also considered the Ex.P5, the same
falsifies the case of the petitioner and material shows that
the petitioner has knowledge regarding disposal of
O.S.No.4911/2012 as on 30.08.2012 and not on the date
as contended by her in the miscellaneous petition and that
much prior to filing of miscellaneous petition, the
petitioner has the knowledge about passing of judgment
and hence, not made out any ground and dismissed the
miscellaneous Petition.
5. The counsel appearing for the appellant would
vehemently contend that the Trial Court committed an
error in relying upon the stray admission with regard to
the knowledge of the suit filed by the respondent and also
NC: 2024:KHC:5542
the counsel would vehemently contend that in order to
prove the fact that the respondent is colluding with the
Court Ameena, got the endorsement and in the cross-
examination of RW1, he categorically admitted that he is
not having acquaintance with Ameena who had been
appointed in the said case and also never met the said
Ameena and not assisted him and also do not know as to
when the Ameena served the notice and also not signed
the said summons, but when the document Ex.P5 is
confronted to the witness, he admits the signature found
in the Ex.P5, but he says he do not remember where he
has signed the Ex.P5 and he did not know at which
address the notice was served to the present appellant
and also does not know the contents of shara in Ex.P5.
The counsel referring this admission contend that when he
was cross examined he says that he was not having any
acquaintance with the Ameena and denied everything
even with regard to the fact that he had not assisted the
Ameena in service of notice. The signature of the plaintiff
found in Ex.P5 and there is no any explanation and what
NC: 2024:KHC:5542
made to get the signature of plaintiff in the summons
issued against the defendant is not been explained.
6. The counsel in support of his argument he relies
upon the judgment 1975 SCC ONLINE KAR 125 in case
of B.Padmavathi Rai V/s V.Parvathiamma and the
counsel brought to notice of this Court paragraph No.4
wherein this Court taken note of Court below has
proceeded on the assumption that letter tendered by the
postman to the defendant about 8 months earlier, was the
summons issued in the suit. That conclusion was reached
on the knowledge attributed to the defendant about the
pending suit. It seems to me that conclusion is untenable.
There was no basis to hold that letter tendered by the
postman was the registered notice containing the suit
summons. The defendant was examined on 30.07.1974.
Eleven months earlier, goes back to the month of
30.08.1973, whereas the alleged date of refusal of
summons was on 04.06.1973. Secondly, the indirect
knowledge of the defendant about the pending litigation is
NC: 2024:KHC:5542
irrelevant for the purpose of determining the sufficiency of
the service. The service may be held to be sufficient only
on the proof of delivery of, or refusal to receive the
summons. The counsel also brought to notice of this Court
paragraph No.5 wherein also the Court observed that
there was one other error committed by the Court below.
It has put the burden on the defendant to examine the
postman in order to rebut the presumption available on
under Order 5 Rule 10 of CPC. But the law is other way
about. When the defendant has examined herself and
stated that she had not refused to receive the letter, the
prima facie presumption of the proof of service has
disappeared, and it would be then for the plaintiff to
produce cognet evidence to prove the 'shara' made by the
postman. The counsel by referring these paragraph Nos.4
and 5 would vehemently contend that the Trial Court
committed an error in not considering the evidence of RW1
while rejecting the petition and not discussed anything
about the evidence of RW1 except considering the
evidence of PW1 and even not relied upon the evidence of
- 10 -
NC: 2024:KHC:5542
RW1 in the order passed by the Trial Court. Hence, it
requires interference.
7. Per Contra, the counsel appearing for the
respondent in his argument would vehemently contend
that the property was purchased in the year 1993 from the
mother who represented through a power of attorney
holder and also counsel would submits that after 10 years,
the very same mother gifted the property in favour of the
appellant herein. The Trial Court having taken note of the
material, though not granted the relief of declaration and
granted the relief of permanent injunction in coming to the
conclusion that the respondent is in possession of the
property. The counsel would vehemently contend that
when the appellant contend that the judgment and decree
is obtained by fraud, the burden is on the appellant to
prove the same.
8. The counsel for respondents relied upon the
judgment reported in (2011) 3 SCC 545 in case of
Parimal V/s Veena Alias Bharti wherein the Apex Court
- 11 -
NC: 2024:KHC:5542
held that no attempt made to establish that there had
been fraud and collusion between the appellant's husband
and postman. The counsel also brought to notice of this
Court the relevant paragraph i.e., para No.11 wherein
discussion is made with regard to the proviso Order 9 Rule
13 of CPC and also paragraph No.12 wherein an
observation is made that however the Court shall not
set-aside the said decree on mere irregularity in the
service of summons or in a case where the defendant had
notice of the date and sufficient time to appear in the
Court. The legislature in its wisdom, made the second
proviso mandatory in nature. Thus, it is not permissible for
the Court to allow the application in utter disregard of the
terms and conditions incorporated in the second proviso
herein.
9. The counsel also brought to notice of this Court
paragraph No.22 wherein held that High Court held that
the presumptions stood rebutted by a bald statement
made by the respondent wife that she was living at
- 12 -
NC: 2024:KHC:5542
different address with her brother and this was duly
supported by her brother who appeared as a witness in
the Court. The High Court erred in not appreciating the
facts in the correct prospective as substituted service is
meant to the resorted to serve the notice at the address
known to the parties where the party had been residing
last. The counsel also brought to notice of this Court with
regard to the fraud and collusion wherein held that it is
nobodies case that respondent's wife made any attempt to
establish that there had been a fraud and collusion
between the appellant and postman. Not a single
document had been summoned from the post office. No
attempt has been made by the respondent's wife to
examine the postman. The counsel referring this also
contend that no attempt is made to examine the Ameena
against whom an allegation is made that he colluded with
the plaintiff and made an endorsement. The counsel also
brought to notice of this Court paragraph Nos.27 and 29
wherein clear discussion is made in coming to the
conclusion that the matter does not fall within the four
- 13 -
NC: 2024:KHC:5542
corners of Order 9 Rule 13 of CPC, the court has no
jurisdiction to set-aside an ex-parte decree. The counsel
referring this judgment would vehemently contend that
when the specific allegation is made against the Ameena,
he has not been examined and judgment of the Apex
Court is aptly applicable to the case on hand.
10. Having heard the appellant's counsel and also
the counsel appearing for the respondents and also taking
into note of the principles laid down in the judgment of
this Court as well as the judgment of the Apex Court, no
doubt in the case when any allegation is made with regard
to fraud or collusion, the person who pleads has to prove
the same. In the case on hand, no doubt the appellant has
not examined the Ameena with regard to the allegation of
making an endorsement that the defendant has refused to
receive the summons. In the cross-examination also the
PW1 admits with regard to notice of suit wherein it is
admitted that on 30.08.2012 when respondent No.1 filed
police complaint, she came to know regarding
- 14 -
NC: 2024:KHC:5542
O.S.No.4911/2012, the same has been considered by the
Trial Court in paragraph No.12 of order of miscellaneous
petition.
11. Having perused the evidence of PW1 and also
the order of the Trial Court and the fact that even the
respondent/plaintiff is also examined before the Trial
Court, the Trial Court even not touched upon the evidence
of RW1 while considering whether ex-parte judgment and
decree passed in O.S.No.4911/2012 is liable to be set-
aside and the Trial Court did not choose to even rely upon
the evidence of RW1 and nothing is discussed in the order
passed by Trial Court with regard to the evidence of RW1.
It is important to note that the RW1/plaintiff has been
examined before the Trial Court. No doubt an affidavit is
filed in support of his contention and he was also cross
examined and in the cross-examination, he admits that
after obtaining exparte judgment, he has filed complaint
dated 10.09.2013 against present petitioner before
Madivala Police Station and hence the admission of PW1 is
- 15 -
NC: 2024:KHC:5542
immaterial with regard to earlier knowledge. It is
important to note that when the specific allegation is made
against the Ameena and cross-examination was made in
respect of whether he was having any acquaintance with
Ameena, but in paragraph No.3 of cross-examination, RW1
categorically admits that he does not know the name of
Ameena who was appointed to serve the summons in
O.S.No.4911/2012. He further says that he never met the
said Ameena. He had not assisted the said Ameena, he
does not know as to when the said Ameena served notice.
He has also not signed the shara written by the Ameena.
When the document of summons was confronted to RW1
which is marked as Ex.P5 wherein the Ameena has made
an endorsement that the defendant was refused to receive
the notice, but found the signature of plaintiff. RW1 admits
the same in the cross-examination that Ex.P5 contains his
signature, but no explanation on the spot as and when he
signed the Ex.P5. He does not know at which address the
notice has to be served to present appellant. He does not
know the contents of shara on Ex.P5. This admission has
- 16 -
NC: 2024:KHC:5542
not been discussed by the Trial Court and even not looked
into the evidence of RW1. Even inspite of non examination
of Ameena, the very answer elicited from the mouth of
RW1 is very clear that though he contend that he never
met Ameena and also not assisted him in service of notice,
but, when the document is confronted to him, he
categorically admitted that the signature found in the
Ex.P5. The Ex.P5 is the summons which was issued to the
defendant. No explanation how come he has signed the
document of Ex.P5. Hence, the very answer elicited from
the mouth of RW1 is very clear that an endorsement is
obtained with the collusion with the Ameena, the same has
even not been discussed by the Trial Court. Even in the
absence of evidence of Ameena, if answer elicited from the
mouth of RW1 is considered by the Trial Court and the
Trial Court in a ingenious method not discussed the
evidence of RW1. The Trial Court only discussed the
evidence of the PW1 and taking note of admission given
that when respondent No.1 has filed police complaint, she
came to know about O.S.No.4911/2012 comes to the
- 17 -
NC: 2024:KHC:5542
conclusion that he had a knowledge and also not examined
the Ameena, but not considered the material available on
record particularly the admission given by RW1. The said
circumstances goes against the plaintiff in one breath he
says that he is not having acquaintance with Ameena and
even he does not know who was appointed as Ameena,
but he signed the summons issued against the defendant,
when it was in the custody of Ameena. This fact has not
been considered by the Trial Court. Hence, the Trial Court
committed an error in not considering the evidence of RW1
and erroneously comes to the conclusion that Ameena has
not been examined. When the answer elicited from the
mouth of RW1 itself is sufficient to comes to the conclusion
that there is a force in the contention of the appellant that
endorsement is obtained at the instance of the Ameena
that the defendant has refused to receive the suit
summons. Hence, the Trial Court ought to have granted
the relief as sought by invoking provision under Order 9
Rule 13 of CPC and sufficient reason has been shown and
answer elicited from the mouth of RW1 itself is sufficient
- 18 -
NC: 2024:KHC:5542
to set-aside the judgment and decree of the Trial Court.
Hence, it is a fit case to exercise the power under Order 9
Rule 13 of CPC and the Trial Court committed an error.
12. In view of the discussions made above, I pass
the following:
ORDER
i) The Miscellaneous First Appeal is allowed.
ii) The impugned order passed by the Trial Court
in Misc.No.616/2013 is set-aside.
iii) The judgment and decree passed by the Trial
Court in O.S.No.4911/2012 is also set-aside.
iv) The Trial Court is directed to give an
opportunity to the appellant herein and
consider the case of appellant by giving an
opportunity to file written statement within one
month from the first appearance, since the suit
is of the year 2012. Hence, it is appropriate to
give a direction to the Trial Court to decide the
same in a time bound period that is within a
period of one from 11.03.2024.
- 19 -
NC: 2024:KHC:5542
v) The parties are directed to appear before the
Trial Court on 11.03.2024 without expecting
any notice from the Trial Court. Both parties
and respective counsel are directed to assist
the Trial Court in disposal of suit within
stipulated time.
vi) The appellant is directed to pay the cost of
Rs.10,000/-(Rupees Ten Thousand only) to the
respondent on or before 11.03.2024.
vii) The appellant counsel has filed an application
under Order 41 Rule 27 of CPC and the same
does not require for consideration of the case
and that is only an endorsement with regard to
the non filing of the complaint before the
concerned police. Hence, I.A is rejected.
Sd/-
JUDGE
RHS
