Karnataka High Court
B V Rajalakshmi vs M Madaiah S/O Madaiah on 28 September, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE N.ANANDA
MISCELLANEOUS FIRST APPEAL No.8177 OF 2010
BETWEEN:
1. B V RAJALAKSHMI
W/O MAHADEVA SWAMY
AGED ABOUT 53 YEARS
R/AT NO.136/Y, 17TH MAIN
53RD CROSS, RAJAJINAGAR
BANGALORE-560010 ...APPELLANT
(BY SRI. T MOHANDAS SHETTY ADVOCATE)
AND:
1. M MADAIAH S/O MADAIAH
MAJOR, R/AT NO.2327, 3RD MAIN
RPC LAYOUT, VIJAYANAGAR
BANGALORE-560040 .. RESPONDENT
(BY SRI. N P KALLESH GOWDA ADVOCATE)
*****
MFA FILED U/O 43 RULE 1(d) OF CPC, AGAINST THE
ORDER DT.22.10.2009 PASSED IN MISC.PETITION
NO.751/2002 ON THE FILE OF THE PRINCIPAL CITY CIVIL
JUDGE, BANGALORE, DISMISSING THE PETITION FILED
U/O 9 RULE 13 OF CPC, TO SET ASIDE AN EX-PARTE
DECREE IN O.S.NO.2870/97 DT.03.11.95.
THIS APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
The appellant was the defendant in O.S.No.2870/1997. The respondent was the plaintiff. The suit was filed for specific performance of agreement of sale said to have been executed by the appellant in favour of the respondent. After the institution of suit, on 4.4.1998 at the instance of plaintiff, the case was advanced from 15.6.1998 to 4.4.1998 and service on defendant was held sufficient. The defendant was placed exparte and case was adjourned to 15.6.1998 for plaintiff's evidence. On 15.6.1998, the case was adjourned to 31.10.1998. On 31.10.1998, evidence of plaintiff was recorded and exparte decree was passed on 3.11.1998.
On 4.10.2002, defendant filed Misc.751/2002 to set aside the exparte decree made in O.S.No.2870/1997. The learned Judge on appreciation of evidence adduced by both parties has held that defendant has failed to establish sufficient cause for condonation of delay, even if there was irregularity in service of summons and that cannot be 3 a ground to set aside the exparte decree. Therefore, the defendant is before this Court.
2. Heard Shri Mohandas Shetty, learned Counsel for the defendant and Shri Vijay Raghavan, learned Counsel for the plaintiff.
3. I have gone through records in O.S.No.2870/1997. The order sheet maintained in O.S.No.2870/1997 would reveal that on 6.10.1997, plaintiff had made an application under Order V Rule 20 of Code of Civil Procedure for issue of summons to defendant by substituted service. The order sheet dated 06.10.1997 reads thus:
"Advocate for plaintiff files an application under Order V Rule 20 CPC (I.A.No.2). Issue SS to defendant through substituted service. Call on 22.1.1998".
The learned Judge has not recorded his satisfaction that there is reason to believe that defendant is keeping out of the way for the purpose of avoiding service or that summons cannot be served in the ordinary way. The learned trial Judge has not ordered for affixture of copy 4 of summons. The learned Judge had not fixed time for appearance of defendant as contemplated under Order V Rule 20 of Code of Civil Procedure. On 22.1.1998, summons was not returned. The case was adjourned to 31.3.1998, on which day also the summons was not returned. The learned trial Judge adjourned the case to 15.6.1998. However, with a direction to the office to put up summons.
The contents of order sheet dated 31.3.1998 are self contradictory. The office had put up the note stating that summons was not received. At the first instance, the learned trial Judge adjourned the case to 15.6.1998. Thereafter, learned trial Judge had directed the office to put up summons which as per office note had not been returned. Thereafter, the case was adjourned to 15.6.1998. Again, there is an endorsement reading:
"Office to put up the S/S".
4. On 4.4.1998, plaintiff filed an application to advance the case from 15.6.1998 to 4.4.1998 inter alia contending that plaintiff cannot afford to wait for 5 weeks together and summons has been returned in the office. The learned trial Judge promptly advanced the case from 15.6.1998 to 4.4.1998 and held service of summons on defendant sufficient and defendant was placed exparte.
5. On perusal of the summons issued by the trial Court, I find that the summons by substituted service was issued on 9.12.1997 and the process server has made an endorsement stating that "on 22.1.1998 he had gone to the house of defendant, found the house was locked, thereafter, he affixed copy of summons to the outer door of house of defendant as also on the notice board of the Court and returned summons on 22.1.1998". In the summons, defendant was directed to appear before the Court on 22.1.1998. As per endorsement of process server, he had affixed copy of summons on the outer door of defendant on 22.1.1998 and returned the summons to the Sheristedar, Central Process Nazar, City Civil Court, Bangalore, on 22.1.1998.
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6. In terms of Order V Rule 2 of the Code of Civil Procedure, summons must be accompanied by the copies of plaint. In terms of Order V Rule 20 of the Code of Civil Procedure, whenever substituted service is ordered, the Court shall fix the date for appearance of the defendant. When an application is filed under Order V Rule 20 of the Code of Civil Procedure, the Court should specifically state the mode of substituted service which may be either by affixture or by publication in newspaper.
When the process server had found that house was locked and he had to affix the summons on the front door of the house of defendant, he should have secured some person who could identify the house of the defendant and thereafter, he should have filed a verified statement before the Sheristedar, Central Process Nazar, City Civil Court, Bangalore.
7. On consideration of summons issued for affixture and endorsement therein, I find the following: 7
(a) The learned trial Judge had not fixed date for appearance of defendant. In the summons, the date for appearance of defendant is shown as 22.1.1998.
The process server should not have waited till 22.1.1998 to affix copy of summons on the front door of house of defendant on 22.1.1998.
(b) The Process server has not indicated the name of person who had assisted him to identify the house of defendant and the service by affixture does not bear attestation of an independent witness.
(c) While returning the summons, the process server should have made a verified statement regarding affixture which is conspicuously absent in the summons.
8. After issue of summons, the trial Court had not received summons on 22.1.1998. Therefore, the case was adjourned to 31.3.1998 on which date also the summons was not received. However, there was a direction to the office to put up the summons and the case was adjourned to 15.6.1998. As already stated at 8 the instance of the plaintiff, the case was advanced from 15.6.1998 to 4.4.1998 on which date, the learned trial Judge passed an order reading as hereunder:
"Defendant called out absent. Service held sufficient. Hence, defendant placed exparte. Call for plaintiff's exparte evidence on 15.6.1998".
When the case was posted on 15.6.1998, the learned trial Judge should not have accepted the application for advancement, to prepone the case to 4.4.1998 to pass the order as afore stated when the copy of copy summons was affixed on 22.1.1998 and the date for appearance of the defendant was also shown as 22.1.998, the learned trial Judge should have directed plaintiff to take effective steps for service of summons to defendant. On the other hand, the learned trial Judge accepting application for preponement held service sufficient even without perusing summons issued to defendant under Order V Rule 20 of the Code of Civil Procedure. These patent irregularities committed by the learned trial Judge resulted in an exparte decree.
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9. The learned Counsel for plaintiff referring to the evidence of the defendant and relying on the judgment of this Court reported in ILR 2008 KAR 941 would submit that as per evidence of defendant, she was aware of the exparte decree in the year 1998. Therefore, there was no reason for defendant to wait till 2002 to file the instant miscellaneous petition under Order 9 Rule 13 of Code of Civil Procedure.
The trial Judge has misdirected the proceedings, the knowledge of proceedings cannot be attributed to defendant. It is also interesting to notice the plaintiff who was in a haste to obtain a decree, and obtained exparte decree on 3.11.1998 and filed execution petition on 27.7.2004, probably with a view to conceal from the knowledge of defendant the "exparte decree". The applications filed by plaintiff during the pendency of the suit would demonstrate plaintiff was not even prepared to wait for few weeks. Therefore, he had filed an application to prepone the case to decide sufficiency of service on defendant. In the circumstances, the conduct of plaintiff subsequent to exparte decree would 10 also lead to an inference that there was every effort on the part of plaintiff to keep defendant in darkness. Even otherwise, defendant has not made unequivocal admissions either relating to knowledge of date of decree or nature of decree.
10. The law is fairly well settled that a party should not suffer on account of mistake committed by the Court. In a decision reported in (2010) 9 SCC 437 (in the case of KALABHARATI ADVERTISING Vs. HEMANT VIMALNATH NARICHANIA AND OTHERS), the Supreme Court has held that no person shall suffer from the mistaken act of the Court.
11. In the case on hand, perusal of the records particularly, the order sheet, shows that the learned trial Judge had misdirected the proceedings at the instance of plaintiff. It was impossible for defendant either to know about the institution of suit or about hearing date. The order sheet shows that virtually no date was fixed by the learned trial Judge for appearance of defendant. The learned trial Judge had hastily 11 preponed the case only to place defendant exparte even without verifying patent illegalities committed in service of summons by substituted service.
12. It is true Under Order IX Rule 13 CPC, an exparte decree cannot be set aside merely on the ground that there has been an irregularity in the service of summons, however, the Court must be satisfied that defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
The learned trial Judge had not fixed date for appearance of defendant. The service of summons by affixture was on 22.1.1998 and date for appearance of defendant was also on 22.1.1998. The case had been preponed at the instance of plaintiff only to place defendant exparte on a preponed date. The learned trial Judge before placing defendant exparte had not looked into contents of returned summons. Had the learned trial Judge looked into returned summons, the learned trial Judge would have noticed patent illegalities 12 committed by the process server. In the circumstances, delay in filing the application to set aside the exparte decree cannot be a ground to reject the application, more particularly, when entire trouble for defendant had flown from the Court.
13. The learned Judge while considering application under Order IX Rule 13 of the Code of Civil Procedure had not taken pains to verify records of O.S.No.2870/1997 and summons. The learned Judge has held that mere irregularity in service of summons is not a ground to set aside the exparte decree and dismissed the application.
14. In view of the above discussion, I hold that the impugned order cannot be sustained. In the result, I pass the following:
ORDER The appeal is accepted. The exparte decree passed in O.S.No.2870/1997 dated 3.11.1998 is set aside. The learned trial Judge shall restore O.S.No.2870/1997 and proceed with the suit in accordance with law. The 13 learned trial Judge shall cause issuance of Court notices to both parties by fixing date for appearance on 19.11.2012. The office is directed to send back the records along with a copy of this judgment.
SD/-
JUDGE sh