Karnataka High Court
Union Of India vs Sri R Raghuva Reddy on 22 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:42355
MFA No. 1479 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.1479 OF 2024 (CPC)
BETWEEN:
1. UNION OF INDIA
MINISTRY OF DEFENCE,
NEW DELHI,
REPRESENTED BY ITS SECRETARY
2. THE DEFENCE ESTATE OFFICER
NO 42, KAMARAJ ROAD,
CIVIL STATION,
BENGALURU 560042
...APPELLANTS
(BY SRI ARAVIND KAMATH, SR. COUNSEL FOR
SRI CHANDRACHUD A, ADVOCATE)
Digitally signed
by DEVIKA M AND:
Location: HIGH
COURT OF
KARNATAKA 1. SRI R RAGHUVA REDDY
S/O SRI G RAMAIAH REDDY,
AGED MAJOR,
2. SRI R GURU REDDY
S/O SRI G RAMAIAH REDDY,
AGED MAJOR,
BOTH ARE R/AT No.668-1
'D' MAIN ROAD, DOMLUR LAYOUT,
BENGALURU - 560071
-2-
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MFA No. 1479 of 2024
...RESPONDENTS
(BY SRI R V S NAIK, SR. COUNSEL FOR
SRI NITIN PRASAD, ADVOCATE FOR C/R1 AND R2)
THIS MFA IS FILED U/O.43 RULE 1(D) OF THE CPC,
AGAINST THE ORDER DT.25.09.2023 PASSED IN MISC.
NO.23/2013 ON THE FILE OF THE XVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This miscellaneous first appeal is filed challenging the
order dated 25.09.2023 passed in Misc. No.23/2013 by
the XVI Additional City Civil and Sessions Judge,
Bengaluru.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the petitioners
is that the respondents have filed a suit in
O.S.No.7613/1992 seeking the relief of permanent
injunction making the allegation against the appellants
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herein that they are interfering with the possession and
enjoyment of the land bearing Sy.No.1 situated at
Challagatta village, Varthur hobli, H A Sanitary Road,
Bengalouru South Taluk, measuring to an extent of 2
acres 27 guntas. The defendants that is appellants herein
appeared and filed the written statement. At the first
instance, the Trial Court dismissed the suit. Hence,
Regular First Appeal is filed before this Court and this
Court vide order dated 31.07.2008, remanded the matter
for fresh consideration with a direction to dispose of the
matter within a time bound period of six months and also
given liberty to both the parties to adduce their evidence
and even the parties are also permitted to produce the
additional documents. Thereafter, the Trial Court also
issued notice against the appellants herein and there is an
endorsement that notice was served on the office of
respondent No.1 and notice also issued to respondent
No.2 by way of substituted service as well as by registered
post. Inspite of it, the appellants did not appear to
contest the matter and ultimately, the suit was decreed
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vide order 22.01.2010. Being aggrieved by the said
judgment and decree, Misc. No.23/2013 was filed before
the Trial Court by the appellants herein praying the Court
to set aside the judgment and decree dated 22.01.2010 on
the ground that there is no proper service of notice on the
appellants.
4. The counsel for the appellants would submits
that the Trial Court relies upon the notice which is served
on the office of respondent No.1 but the same is disputed
by the counsel. The counsel also would contend that
property belongs to military and hence, there cannot be an
order of injunction on the guise that they are not
represented before the Trial Court. The counsel also would
vehemently contend that the reason has been explained
for delay in filing the miscellaneous petition in 2013 since
there was no proper service of notice. Hence, this Court
has to set aside the order passed by the Trial Court.
5. Per contra, the learned counsel appearing for
the respondent would vehemently contend that the
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appellants have the knowledge of the order of this Court
passed in the first appeal wherein a direction was given to
dispose of the case with a time bound period of six
months. Inspite of service of notice also, the appellants
did not choose to appear and contest the matter and only
after 4½ years, filed the miscellaneous petition before the
Trial Court and the Trial Court in detail discussed the
evidence of PW1 who led the evidence before the
miscellaneous Court and extracted the admission of PW1
and detail order has passed and hence, no ground to set
aside the order.
6. The counsel for the respondent in response to
the contention of the counsel for the appellants with
regard to the fact that the property belongs to the
military, submits that respondent is claiming title in
respect of the suit schedule property from 1947 and even
ready to seek for the relief of declaration to establish the
title before the Court by paying the Court fee also hence,
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the very claim of the appellants that it is the property
belongs to the military cannot be accepted.
7. Heard the learned counsel appearing for the
respective parties and perused the material available on
record. This Court has to take note of the admitted facts.
It is not in dispute that the suit is filed for the relief of
permanent injunction and also not in dispute that at the
first instance, the suit was dismissed. Being aggrieved by
the said order, an appeal was filed before this Court. It is
also not in dispute that this Court set aside the order of
the Trial Court and remanded the matter for fresh
consideration with liberty to adduce evidence by placing
additional documents.
8. It is also important to note that the very
contention of the appellants that no notice was served and
the learned counsel for the respondent brought to notice
of this Court service of notice on the office and though
counsel disputes the seal and signature, the admission
given by PW1 in Miscellaneous petition is very clear for
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having served the notice. It is also important to note that
when the appeal was filed by the respondents before this
Court in R.F.A. and the matter was remanded for fresh
consideration and appellants have represented before this
Court and had the knowledge about remanding of matter
with time bound period of six months and even parties are
permitted to lead their evidence by placing additional
documents, but, the appellants kept quiet till 2013 and
only contention that no proper service of notice. Even
assuming that there is no proper service of notice, when
they participated in the proceedings in R.F.A., they have
the knowledge of remand, they cannot contend that there
is no proper service of notice. Even records also discloses
that Trial Court had issued the notice and service of notice
on respondent No.1 also as the same is served on the
office. The Trial Court, in paragraph 11, discussed in detail
the admission given by PW1 about the notice and also the
order sheet of the Trial Court as well as direction given by
this Court to dispose of the same within a time bound
period and also document was confronted and the same is
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marked as Ex.R1. Apart from that detail discussion was
made in paragraph 13 for having the knowledge about the
same and also date was given for appearance of defendant
No.2 after the substituted service invoking Order 5 Rule 20
of CPC and also taken note of the fact that when the
matter was posted on 13.04.2009 for appearance of
defendant No.2, defendant No.2 was absent on that day
and the Court opined that the defendant No.2 is Union of
India and summons published in newspaper comes to the
conclusion that it is not sufficient and directed to take
fresh steps. The said direction was duly complied by the
plaintiff and notice was sent to the defendant No.2
through RPAD which was not returned. After one month
from the date of RPAD, the Court directed the office to
place complaint with postal authorities and obtain
necessary endorsement with regard to delivery of postal
cover to defendant No.2 and posted for appearance of
defendant No.2. As per order sheet dated 26.08.2009, the
postal acknowledgment due returned to the Court which
does not disclose the same to which official and on what
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date and seals is also not legible. Defendant No.2 absent.
No representation. Again posted for appearance of
defendant No.2 and direction given to the office to obtain
report from postal authority about delivery of postal cover
to defendant No.2. It shows that the Court has put every
effort for issuance of Court notice to defendant No.2 even
after notice served to their counsel. Again on 22.10.2009,
the notice of IA filed by the plaintiffs under Order 26 Rule
9 also issued to the defendants which was withdrawn as
not pressed. But to the said IA notice also defendants had
not appeared even though it was kept open to the
defendants for appearance. In the order sheet dated
10.09.2009 there is clear office note that the notice to the
defendant No.2 by RPAD returned as served. Even there
was an opportunity given to defendants to lead their
evidence on 15.12.2009 and after their absence on next
date of hearing also then only stage for defendants'
evidence was closed. All these materials were considered
by the Trial Court and even extracted the admission in
paragraphs 13 and 14 and having taken note of these are
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the material available on record comes to the conclusion
that no sufficient cause is shown by the appellants to
comes to a conclusion that there was no notice. Inspite of
efforts are made by the Court to serve the notice, they did
not choose to appear and contest the matter on service of
notice.
9. Having considered both oral and documentary
evidence placed on record, I do not find any error
committed by the Trial Court in dismissing the Misc.
No.23/2013 since they have not made out sufficient cause
to set aside the order of the Trial Court. Hence, there is
no merit in the appeal to comes to a other conclusion.
10. In view of the submission made by the
respondents' counsel and also the counsel for the
appellants that the appellants claims that this is a property
of military and the respondent claims that this is an
independent property of the respondent and even ready to
get the relief of declaration before the Court by paying the
Court fee also. When such submissions are made and
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there are rival claim by both the parties, it is appropriate
to give liberty to the parties to approach the appropriate
Court to claim their relief with regard to title is concerned
in any independent proceedings.
11. With this observation, the appeal is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
SN
