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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NC: 2024:KHC:45698-DB
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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NC: 2024:KHC:45698-DB
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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NC: 2024:KHC:45698-DB
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 -5- NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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 -6- NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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 -7- NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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. -8-
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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 -9- NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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 1 (2018) 2 SCC 649
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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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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NC: 2024:KHC:45698-DB RFA No. 327 of 2012 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 List No.: 1 Sl No.: 17