Karnataka High Court
Smt Y Sunitha vs Sri Rajesh Chhabria on 12 November, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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RFA No. 327 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 327 OF 2012 (DEC/INJ)
BETWEEN:
SMT Y SUNITHA
W/O M. HARI KIRSHANA
D/O Y.GURUSWAMI
AGED ABOUT 34 YEARS
R/AT NO. 198A, 6th CROSS
ACES LAYOUT, SANJAYANAGAR
BENGALURU - 560 094
NOW R/AT NO.1
FLAT NO.1, SARADAMANSION
2ND MAIN, GMRLAYOUT
BEHIND UJWALA RESTAURANT
SANJAY NAGAR
BENGALURU - 560 094
Digitally signed
by
MARIGANGAIAH ...APPELLANT
PREMAKUMARI
Location: HIGH (BY SRI.M.M.SWAMY & SRI ASHOK KUMAR., M.C. ADVOCATES)
COURT OF
KARNATAKA
AND:
1. SRI RAJESH CHHABRIA
S/O. INDER CHHABRIA
AGED ABOUT 37 YEARS
R/AT SIJ ENTERPRISES
NO.112/6, G.P. ROAD
CHENNAI
2. SRI. MANOHAR VENUGOPAL
S/O VENUGOPAL
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RFA No. 327 of 2012
AGED ABOUT 41 YEARS
R/AT NO.D2, 4TH FLOOR,
CHANDRA ENCLAVE
KAMALABAISTREET
T. NAGAR, CHENNAI
BOTH ARE REP.BY THEIR
SPECIAL POWER OF ATTORNEY HOLDER
SRI PRAKASH G. MAKHIJA
S/O LT GOPAL DAS MAKHIJA
AGED ABOUT 61 YEARS
NO.622, AVENUE ROAD
BENGALURU - 560 002
3. M/S. KALASAM PROPERTIES
REP.BY ITS MANAGING PARTNER
SRI T.SHASHIDHAR REDDY
S/O P. SUDHAKARREDDY
AGED ABOUT 35 YEARS
HAVING ITS OFFICE AT NO.417
1ST FLOOR, 12TH CROSS
OPP.TO SWIMMING POOL
SADASHIVANAGAR
BENGALURU
4. SRI P. RAMAKRISHNA
S/O PUTTAIAH
AGED ABOUT 54 YEARS
5. SMT. D. YESHODAMMA
W/O P. RAMAKRISHNA
AGED ABOUT 49 YEARS
6. KUMARI JAMUNA
D/O P. RAMAKRISHNA
AGED ABOUT 27 YEARS
7. SRI. R. GURUPRASAD
D/O P. RAMAKRISHNA
AGED ABOUT 25 YEARS
8. KUMARI RANJINI
D/O RAMAKRISHNA
AGED ABOUT 19 YEARS
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RFA No. 327 of 2012
RESPONDENT NOS. 4 TO 8
ALL ARE REP.BY THEIR
GPA HOLDER
M/S KALASAM PROPERTIES
REP.BY ITS MANAGING PARTNER
SRI T.SHASHIDHAR REDDY
S/O.P.SUDHAKAR REDDY
AGED ABOUT 35 YEARS
HAVING ITS OFFICE AT
NO.417, 1ST FLOOR
12TH CROSS
OPP. TO SWIMMING POOL
SADASHIVANAGAR
BENGALURU - 560 080
9. SMT. Y. SUSHEELAMMA
W/O Y. GURUSWAMI
AGED ABOUT 60 YEARS
R/AT NO.198A, 6TH CROSS
AECS LAYOUT
SANJAYNAGAR
BENGALURU - 560 094
...RESPONDENTS
(BY SRI.G.B.MANJUNATH., ADVOCATE FOR R1 & R2;
SRI. PRAKASH.R & SRI RAVIKUMAR.M.R., ADVOCATES FOR R-7
NOTICE TO R-3 TO R-9 ARE DISPENSED WITH V/O DATED
07.02.2024)
THIS RFA IS FILED UNDER SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 22.02.2011 PASSED IN
O.S.1734/2009 ON THE FILE OF THE XI-ADDL. CITY CIVIL
JUDGE, BANGALORE CITY, PARTLY DECREEING THE SUIT FOR
DECLARATION, INJUNCTION AND POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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RFA No. 327 of 2012
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT)
Appellant/defendant No.2 before the XI Additional
City Civil Judge, Bangalore City (CCH.No.8) (for short,
'Trial Court') in O.S.No.1734/2009 is before this Court in
this appeal under Section 96 of CPC, questioning the
correctness or otherwise of the judgment and decree
dated 22.02.2011, by which respondent No.1 and 2's suit
for declaration, injunction and possession is decreed,
placing the defendants ex-parte.
2. The parties would be referred to as per the
ranking before the Trial Court for the sake of convenience.
3. The plaintiffs filed suit with a prayer to declare
the sale deed dated 12.11.2008 in respect of the suit
schedule property executed in favour of first defendant by
defendant Nos.3 to 8 and also document dated 07.12.2008
in respect of suit schedule property executed in favour of
second defendant by first defendant as not binding on the
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plaintiffs and to declare that the sale deeds would not
come in the way of plaintiffs obtaining sale deeds from
defendant Nos.3 to 8 in respect of the suit schedule
property as per the agreement of sale dated 14.05.2007;
to direct defendant Nos.1 and 2 to deliver the vacant
possession to the plaintiffs; and also to issue permanent
injunction against the defendant Nos.1 and 2 from
interfering with the peaceful possession and enjoyment of
the plaintiffs.
4. In the said suit, Trial Court ordered issuance of
summons on 12.03.2009 returnable by 13.04.2009. On
13.04.2009, service was awaited in respect of defendants
and the suit was adjourned to 25.06.2009. On
25.06.2009, suit summons in respect of defendant Nos.4,
5, 7 and 8 returned duly served and suit summons issued
to defendant No.6 was served on his daughter.
Accordingly, defendant Nos.4 to 8 were treated as absent.
Suit summons issued to defendant Nos.1 to 3 returned un-
served. For the purpose of paying process fee as well as
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covers and acknowledgement to defendant Nos.1 to 3, suit
was adjourned to 05.08.2009. On 05.08.2009, plaintiffs
filed an application under Order V, Rule 20A of CPC
requesting the Court to issue suit summons to defendant
Nos.1 to 3 by way of paper publication, which was allowed
on the same day. On 06.10.2009, service of suit summons
on defendant Nos.1 to 3 were held sufficient.
5. The plaintiffs, in order to prove their case,
examined their Special Power of Attorney holder
Sri.Prakash G. Makhija as PW-1, got marked Ex.P1 to
Ex.P20. Since none of the defendants had appeared before
the Trial Court no evidence was led and the Trial Court
proceeded to pass the judgment ex-parte, decreed the suit
by granting the prayers sought by the plaintiffs.
Questioning the said ex-parte judgment and decree,
appellant/defendant No.2 is before this Court in this
appeal.
6. Heard learned counsel Sri.M.M.Swamy for
appellant/defendant No.2 and learned counsel
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Sri.G.B.Manjunath for contesting respondent Nos.1 and 2/
plaintiff Nos.1 and 2. Perused the appeal papers as well as
original records in O.S.No.1734/2009.
7. Learned counsel Sri.M.M.Swamy for
appellant/defendant No.2 would submit that suit summons
was not served on appellant/defendant No.2 and she had
no opportunity to defend herself before the Trial Court in
the suit. The suit summons was ordered on 13.04.2009
and admittedly suit summons was not served on
defendant Nos.1 to 3. When the suit was posted for taking
fresh steps to 05.08.2009, the plaintiffs instead of taking
fresh steps for issuance of suit summons, filed application
for substituted service by way of paper publication under
Order V Rule 20A of CPC. He submits that Trial Court
without recording its satisfaction with regard to keeping
out of the way for the purpose of avoiding service of
summons by defendant No.1 to 3, proceeded to allow the
application permitting the plaintiffs to serve suit summons
on defendant Nos.1 to 3 by way of paper publication.
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8. Learned counsel Sri.M.M.Swamy submits that
unless the Court is satisfied with regard to avoidance of
notice by the defendants, the Court would not be in a
position to order service through paper publication.
Moreover, he submits that the plaintiffs have not made any
efforts to get the suit summons served on defendant Nos.1
to 3 either by Registered Post Acknowledgement Due or
through the Court. Learned counsel also submits that on
merits also, appellant/defendant No.2 has good case and
he submits that when the suit was pending, simultaneously
the plaintiffs also initiated arbitration proceedings and
obtained award on 14.10.2010. Learned counsel would also
submit that they had become the owners of suit schedule
property under registered sale deed and as on that date,
the plaintiffs were only agreement holders in respect of the
suit schedule property. Thus learned counsel would submit
that impugned judgment is without providing any
opportunity to defendant No.2, appellant herein and the
same requires to be set aside to provide an opportunity to
appellant/defendant No.2. However, learned counsel
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Sri.M.M.Swamy prays for an opportunity to participate in
the proceedings in O.S.N.1734/2009 and to urge all the
contentions raised herein before the Trial Court.
9. Per contra, learned counsel Sri.G.B.Manjunath
vehemently opposes the prayer of the appellant/defendant
No.2. He submits that appellant/defendant No.2 without
filing miscellaneous petition under Order 9 Rule 13 of CPC,
straightaway has filed appeal under Section 96 of CPC,
which she could not have filed. Learned counsel would also
submit that she could have proved before the Trial Court
by filing Miscellaneous Petition that suit summons was not
duly served on her. Without doing so, she could not have
filed appeal and if at all appeal is filed, she is estopped
from urging the ground that she is not served with suit
summons and it is open for her to argue the matter only
on merits.
10. Further, learned counsel Sri.G.B.Manjunath
would submit that subsequent to decree passed, the
plaintiffs have got executed sale deed in their favour and
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possession of the suit schedule property is also handed
over to them. They are enjoying the suit schedule property
as on this day. Further, learned counsel would submit that
defendant Nos.1 to 3 deliberately avoided receiving of suit
summons and as the suit summons returned un-served,
plaintiffs had no other option but to take paper
publication. Thus, he defends the action of taking paper
publication for service of suit summons on defendant
Nos.1 to 3. Thus, he prays for dismissal of the appeal.
11. Having heard the learned counsel appearing for
the parties and on perusal of the appeal papers, the
following points would arise for our consideration:
"1. Whether the Trial Court is justified in
allowing IA filed under Order V, Rule 20 of CPC
without recording its satisfaction with regard to
keeping out of the way for the purpose of avoiding
service by defendant Nos. 1 to 3?
2. Whether the appellant/defendant No.2
needs to be provided an opportunity to defend
herself in the suit?"
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12. Answer to the above points would be in the
negative and positive respectively, for the following
reasons:
13. The suit of the plaintiffs is one for declaration,
possession and injunction. Admittedly, Trial Court ordered
suit summons to the defendants on 12.03.2009,
returnable by 13.04.2009. On 13.04.2009, suit was
adjourned to 25.06.2009, awaiting service of notice. On
25.06.2009, the following order was passed:
"IA filed for extension of IO. IO extended till
next date of hearing. SS issued to D4, 5, 7 and 8
returned duly served. SS of D6 served on his
daughter. D4 to 8 called out absent. Service on
them held sufficient. They are placed exparte.
SS issued to D1 to 3 returned unserved. Fee
and CA of D1 to 3 by 5.8.09"
14. Trial Court in the above order recorded that the
suit summons to defendant Nos.4 to 8 is served and they
are absent, holding that the service of summons on them
is sufficient and placed them ex-parte. However, in respect
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of defendant Nos.1 to 3, it ordered for Fee, Cover and
Acknowledgement by 05.08.2009. On 05.08.2009,
plaintiffs instead of depositing process fee and covers with
acknowledgement for issuance of suit summons to
defendant Nos.1 to 3, filed an IA under Order V Rule 20 of
CPC, praying to issue suit summons to defendant Nos.1
to 3 by way of paper publication. The order portion dated
05.08.2009 reads as follows.
"Case called out. Plaintiffs' counsel files IA
under Order V, Rule 20A of CPC to issue suit
summons to defendant Nos.1 to 3 through paper
publication. IA is allowed."
15. From the above portion of the order dated
05.08.2009, it is clear that the Trial Court allowed IA for
service of notice by way of paper publication without
recording its satisfaction as to defendant Nos.1 to 3 were
deliberately avoiding service of summons. Order V, Rule
20 of CPC reads as follows:
"20. Substituted service.-- (1) Where the
Court is satisfied that there is reason to believe that
the defendant is keeping out of the way for the
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purpose of avoiding service, or that for any other
reason the summons cannot be served in the
ordinary way, the Court shall order the summons to
be served by affixing a copy thereof in some
conspicuous place in the Court-house, and also upon
some conspicuous part of the house (if any) in which
the defendant is known to have last resided or
carried on business or personally worked for gain, or
in such other manner as the Court thinks fit.
(1A) Where the Court acting under sub-rule
(1) orders service by an advertisement in a
newspaper, the newspaper shall be a daily
newspaper circulating in the locality in which the
defendant is last known to have actually and
voluntarily resided, carried on business or
personally worked for gain."
16. A careful reading of the above provision makes
it abundantly clear that if the Court is satisfied that there
is reason to believe that the defendant is keeping out of
the way for the purpose of avoiding service, or that for
any other reason summons cannot be served in the
ordinary way, the Court could order substituted service by
way of affixture or by way of paper publication.
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17. In the instant case, learned Trial Judge has not
recorded his satisfaction with regard to avoidance of
service by defendant Nos.1 to 3. Without recording
satisfaction, that too for the non-service of suit summons
on defendant Nos.1 to 3 for the first time, could not have
allowed the plaintiffs to take out notice through paper
publication.
18. The Hon'ble Apex Court in a decision reported
in the case of NEERAJA REALTORS PRIVATE LIMITED VS.
JANGLU (DEAD) THROUGH LEGAL REPRESENTATIVE1, an
appeal arising out of ex-parte Judgment and Decree in a
suit for specific performance, considering Order V, Rule
20(1) and (1-A) of CPC at paragraphs 14 to 17, it is held
as follows:
"14. Evidently as the report of the bailiff
indicates, he was unable to find the defendant at the
address which was mentioned in the summons. The
report of the bailiff does not indicate that the
summons were affixed on a conspicuous part of the
(2018) 2 SCC 649
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house, at the address mentioned in the summons.
There was a breach of the provisions of Order 5 Rule
17. When the application for substituted service was
filed before the trial court under Order 5 Rule 20, a
cryptic order was passed on 2-9-2011. Order 5 Rule
20 requires the court to be satisfied either that there
is reason to believe that the defendant is keeping
out of the way for the purpose of avoiding service or
that for any other reason, the summons cannot be
served in the ordinary way. Substituted service is an
exception to the normal mode of service. The Court
must apply its mind to the requirements of Order 5
Rule 20 and its order must indicate due
consideration of the provisions contained in it.
Evidently the trial court failed to apply its mind to
the requirements of Order 5 Rule 20 and passed a
mechanical order. Besides this, as observed by the
learned Single Judge of the High Court, the trial
Judge ignored the provisions contained in Chapter
III of the Civil Manual issued by the High Court on
its appellate side for the guidance of civil courts and
officers subordinate to it. Paras 33 to 36 of Chapter
III are extracted below:
"33. In addition to the service to be effected
through a bailiff, a summon may also be sent to
the defendant, to the address given by the
plaintiff, by registered post, prepaid for
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acknowledgment, provided there is a regular
daily postal service at such place.
34. Rules as to service of summons are
contained in Rules 9 to 30 of Order 5. Care
should be taken to see that bailiffs follow those
rules as well as the instructions given in the
bailiffs' Manual.
35. It is the duty of the serving officer to
follow the procedure and take all the steps laid
down in Rule 17 of Order 5. He has no
discretion for not taking the necessary steps,
when the conditions laid down in the said Rule
are fulfilled.
36. It is for the Court to determine whether
the service is good or bad. In determining
whether the service is good or not, the
attention of courts is drawn to the necessity of
strictly following the provisions of the Civil
Procedure Code as to the service of processes.
Ordinarily, service should not be considered
sufficient unless all the requirements of the law
in that behalf are fulfilled. The object of the
service is to inform a party of the proceedings
in due time. When from the return of a serving
officer it appears that there is no likelihood that
a process will come to the knowledge of the
party in due time, or a probability exists that it
will not so come to his knowledge, the service
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should not be considered to be proper. The law
contemplates that the primary method of
service should be tendering or delivering a copy
of the process to the party personally, in case
in which it may be practicable to do so. It is the
duty of the serving officer to make all proper
efforts to find the party, with a view to effect
personal service. If it be not possible after
reasonable endeavour to find the party, then
only the service may be made on an adult male
member of the family residing with him."
15. The submission that under Order 5 Rule
20, it was not necessary to affix a copy of the
summons at the court house and at the house where
the defendant is known to have last resided, once
the court had directed service by publication in the
newspaper really begs the question. There was a
clear breach of the procedure prescribed in Order 5
Rule 17 even antecedent thereto. Besides, the order
of the Court does not indicate due application of
mind to the requirement of the satisfaction
prescribed in the provision. The High Court was, in
these circumstances, justified in coming to the
conclusion that the ex parte judgment and order in
the suit for specific performance was liable to be set
aside.
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16. In Bhanu Kumar Jain v. Archana
Kumar [Bhanu Kumar Jain v. Archana Kumar,
(2005) 1 SCC 787], a Bench of three Judges of
this Court has held that : (SCC p. 797, para 24)
"24. An appeal against an ex parte decree in
terms of Section 96(2) of the Code could be
filed on the following grounds:
(i) the materials on record brought on record
in the ex parte proceedings in the suit by the
plaintiff would not entail a decree in his favour;
and
(ii) the suit could not have been posted for ex
parte hearing."
17. A defendant against whom an ex parte
decree is passed has two options : the first is to file
an appeal. The second is to file an application under
Order 9 Rule 13. The defendant can take recourse to
both the proceedings simultaneously. The right of
appeal is not taken away by filing an application
under Order 9 Rule 13. But if the appeal is dismissed
as a result of which the ex parte decree merges with
the order of the appellate court, a petition under
Order 9 Rule 13 would not be maintainable. When
an application under Order 9 Rule 13 is dismissed,
the remedy of the defendant is under Order 43 Rule
1. However, once such an appeal is dismissed, the
same contention cannot be raised in a first appeal
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under Section 96. The three-Judge Bench decision
in Bhanu Kumar Jain [Bhanu Kumar Jain v. Archana
Kumar, (2005) 1 SCC 787] has been followed by
another Bench of three Judges in Rabindra
Singh v. Financial Commr., Cooperation [Rabindra
Singh v. Financial Commr., Cooperation, (2008) 7
SCC 663] , and by a two-Judge Bench in
Mahesh Yadav v. Rajeshwar Singh [Mahesh
Yadav v. Rajeshwar Singh, (2009) 2 SCC 205 :
(2009) 1 SCC (Civ) 454] . In the present case, the
original defendant chose a remedy of first appeal
under Section 96 and was able to establish before
the High Court, adequate grounds for setting aside
the judgment and decree."
19. The Hon'ble Apex Court has made it clear that
under Order V Rule 20 of CPC, the Court should be
satisfied either that there is reason to believe or any other
reason, the summons cannot be served in ordinary way. It
is also observed by the Hon'ble Apex Court that
substituted service is an exception to the normal mode of
service. Substituted service by way of paper publication
could be resorted to, or permitted only when it is shown to
the Court that in the normal course, suit summons could
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not be served on the defendants. The Court for mere
asking could not permit the substituted service.
20. In the instant case, without recording any
reason, only stating that 'IA is allowed', Trial Court
permitted the plaintiff to take out service of suit
summons on defendant Nos.1 to 3 by way of substituted
service of paper publication. Thus, the Trial Court
committed grave error in permitting substituted service
by way of paper publication and further permitting
paper publication without recording any reason or
satisfaction about avoidance of summons is contrary to
Order V Rule 20 of CPC.
21. Learned counsel Sri.G.B.Manjunath also
contended that without resorting to, or without filing
miscellaneous petition under Order 9, Rule 13 of CPC to
set aside the ex-parte judgment, appellant/defendant No.2
could not have filed the present appeal under Section 96
of CPC. The said contention is answered by the Hon'ble
Apex Court in the above stated decision at paragraph (17)
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by observing that a defendant against whom an ex-parte
decree has passed has two options: the first is to file an
appeal, the second is to file an application under Order 9
Rule 13. It is also observed that defendant can take
recourse to both the proceedings simultaneously.
22. Thus, we are of the opinion that without going
into merit, appellant/defendant No.2 needs to be provided
an opportunity to defend the case before the Trial Court.
But at the same time, appellant/defendant No.2 shall be
put on certain terms. Hence the following:
ORDER
i) Regular First Appeal is allowed.
ii) Judgment and Decree dated 22.02.2011
passed in O.S.No.1734/2009 on the file of
the XI Additional City Civil Judge,
Bangalore City (CCH.No.8) is set aside.
iii) The matter is remitted back to the Trial
Court for fresh trial, on providing an
opportunity to appellant/defendant No.2
and also to similarly situated defendants
to participate in the proceedings.
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iv) The parties shall appear before the Trial
Court on 18.12.2024. On the said date,
appellant/defendant No.2 shall file his
written statement and she would not be
entitled for any further extension of time
to file written statement.
v) Since the suit is of the year 2009, Trial
Court is directed to dispose of the suit as
early as possible, not later than six
months from the date of appearance of
the parties.
vi) Appellant/defendant No.2 shall pay cost
of Rs.25,000/- to the plaintiffs on the
date of appearance before the Trial Court.
vii) All contention of the parties are left open.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
NC
CT:RS
