Karnataka High Court
Shankar Narayan Rao vs Shri. Pratap S/O Sadashiv Hundre on 4 October, 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4th DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C. M. POONACHA
CIVIL REVISION PETITION NO. 100024 OF 2021
BETWEEN
SHANKAR NARAYAN RAO
AGE. 69 YEARS, OCC. BUSINESS,
R/O. 'MAHALAXMI KRUPA', JADHAV NAGAR,
BELAGAVI-590019.
...PETITIONER
(BY SMT. SURABI KULKARNI, ADV.)
AND
1. SHRI. PRATAP S/O. SADASHIV HUNDRE
Digitally
signed by AGE. 57 YEARS, OCC. BUSINESS,
SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH Date:
R/O. H.NO.335, MUJAWAR GALLI,
2023.10.16
12:55:05
+0530
BELAGAVI-590001.
2. THE MANAGER
JAY HANUMAN CO-OP SOCIETY LTD.,
KHANJAR GALLI CORNER,
BELAGAVI-590001.
3. THE CHIEF MANAGER
BANK OF INDIA,
KARNATAKA DIVISION,
NO.11, KEMPEGOUDA ROAD,
BENGALURU-560009.
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4. SMT. MANISHA W/O. ANIL BENAKE
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. H.NO.1623, SECTOR NO.8,
ANJANEYA NAGAR, M.M. EXTENSION,
BELAGAVI-560001.
...RESPONDENTS
(BY SRI. P. S. KATAGERI, ADV. FOR R1, R2, R3 AND R4 ARE SERVED)
THIS CIVIL REVISION PETITION IS FILED UNDER SEC.115 OF
CPC, 1908, AGAINST THE ORDER DATED 24.11.2020 PASSED IN
MISC. NO.16/2018 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI,
ALLOWING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED ON 23.09.2023, COMING ON FOR PRONUNCEMENT OF
JUDGMENT, THIS DAY, THIS COURT PRONUNCED THE FOLLOWING:
ORDER
The present petition is filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') by the first defendant challenging the order dated 24.11.2020 passed in Misc.No.16/2018 by the III Additional Senior Civil Judge and CJM, Belagavi (hereinafter referred to as the trial Court).
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2. The parties herein are referred to as per their rank before the Trial Court.
3. The relevant facts necessary for consideration of the present petition are that the suit in OS No.298/2014 is filed by the petitioner seeking specific performance of the Agreement of Sale dated 4.1.2010. Summons in the suit to the first defendant was duly served and he was placed ex parte since he failed to appear before the Court. The Trial Court, vide its judgment and decree dated 2.6.2017 decreed the suit of the plaintiff in part directing the first defendant to refund the advance amount of Rs.8.00 lakhs to the plaintiff with interest at 12% pa., from the date of agreement till realization and also directed to pay damages of Rs.1.00 lakh with interest at 12% pa., from the date of judgment till realization.
4. The first defendant filed Misc.No.16/2018 under Order 9 Rule 13 of the CPC to set aside the ex parte decree. 4 The said Misc., application was opposed by the plaintiff by filing objections. The first defendant examined himself as PW.1 and Exs.P1 to P5 were marked in evidence. The plaintiff was examined as RW.1. Ex.R1 was marked in evidence. The trial Court upon an appreciation of the oral and documentary evidence available on record, allowed the application with costs of Rs.3,000/- and restored OS No.298/2014 to its original file. Being aggrieved, the present petition is filed.
5. Learned Counsel, Smt.Surabhi Kulkarni appearing for the petitioner/plaintiff assailing the order passed by the trial Court contends that notice in the suit has been duly served on the first defendant on 16.10.2014 and a copy of the summons was marked as Ex.R1. She further contends that in the Misc., application filed under Order 9 Rule 13 of the CPC, the first defendant has specifically averred that the cause of action arose on 26.8.2018 when the certified copy of the judgment and 5 decree was received from the Advocate and then he came to know about the ex parte decree. It is further contended that the summons to the first defendant having been served in the suit, as per Article 123 of the Limitation Act, 1963, the limitation for instituting the proceedings to set aside an ex parte decree is 30 days from the date when the notice was duly served and along with the Misc., application filed by the first defendant under Order 9 Rule 13 of the CPC no application was filed for condonation of delay. She contends that the first defendant who was examined as PW.1 has specifically admitted having knowledge of the proceedings of the suit. Hence, the learned counsel submits that the trial Court not having noticed this aspect of the matter, the impugned order is erroneous and liable to be interfered with in the present petition. In support of her contentions, the learned counsel relies on the following judgments:
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i) Mahabir Singh v. Subhash & ors.,1;
ii) Sneh Gupta v. Devi Sarup2;
iii) Basawaraj & Anr., v. Special Land
Acquisition Officer3;
iv) Majji Sannemma @ Sanyasirao v. Reddy
Sridevi & Ors.,4;
v) Mahabir Singh v. Subhash & Ors.,5.
6. Per contra, learned counsel Sri P.S.Katageri appearing for the first respondent/first defendant justifies the order passed by the first Appellate Court and relied on the judgment in the case of Sesh Nath Singh & Anr., v. Baidyabati Sheoraphuli Co-operative Bank Ltd., & Anr.,6
7. I have considered the submissions made by both the learned Counsel and perused the material available on record.
1(2008) 1 SCC 358 2 (2009) 6 SCC 194 3 (2013) 14 SCC 81 4 2021 SCC Online SC 1260 5 2007 AIR SCW 6733 6 AIR 2021 SC 2637 7
8. It is relevant to note that the plaintiff filed OS No.298/2014 for specific performance of the Agreement of Sale dated 4.1.2010. Respondents herein were arrayed as defendant Nos.1 to 4 in the suit. The first defendant was placed ex parte on 30.10.2014. The Trial Court by its judgment and decree dated 2.6.2017 partly decreed the suit of the plaintiff. The first defendant filed an application on 7.9.2018 under Order 9 Rule 13 which was numbered as Misc.No.16/2018. It is the case of the first defendant in the said application that he had executed a registered Sale Deed dated 6.8.2014 for total sale consideration of Rs.25.00 lakhs in respect of the suit property. Since it was the contention of the first defendant that he has not received any consideration, he has instituted OS No.336/2018 on the file of Principal Civil Judge and JMFC, Balagavi, for cancellation of the said Sale Deed, which is pending consideration.
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9. It is his further case that he had never agreed to sell the suit property to any other person and it is his contention that the plaintiff in the suit behind his back had created certain documents and styling the same as an Agreement of Sale dated 4.1.2010 is seeking enforcement of the same and that the first defendant has not received any consideration under the said Agreement. That the first defendant came to know of the disposal of the suit on 25.10.2017 and had applied for a certified copy through his Advocate on the next day. Upon obtaining the certified copy on 7.11.2017, he came to know of the ex parte decree.
10. Further, it was the case of the first defendant that he was addicted to alcohol and he was admitted to treatment for the first time on 17.12.1998 and thereafter has been under continuous follow up treatment and since he could not recover from the said addiction, he was once again admitted on 31.8.2001 and was on follow up 9 treatment. Thereafter, he has also learnt about the proceedings in EP No.169/2017. However, since he was taken to Pune for treatment, upon his return in March 2018 he filed the suit in OS No.336/2018 and thereafter, after he once again returned from treatment and he filed the application in Misc No.16/2018. It is the specific contention of the first defendant that the summons in the suit in OS.No.298/2014 has not been served on him. In the application before the trial Court he has specifically stated that the cause of action for the said application arose on 26.8.2018 when he secured the certified copy from his Advocate and then he came to know about the ex parte decree.
11. The Misc., application filed by the first defendant was opposed by the plaintiff by filing a detailed statement of objections denying the allegations made in the Misc., application. It is also specifically stated by the plaintiff 10 that the first defendant is hale and healthy and permanently resides in Belagavi.
12. In the proceedings in Misc.No.16/2018 the first defendant examined himself as PW.1. It is relevant to note that the Medical Certificate is marked as Ex.P4, wherein it has been certified that he was admitted for alcohol de- addiction at Muktangan Mitra Rehabilitation Centre, Pune, on 17.12.1998 and 31.8.2001 and he is still under follow up treatment. The plaintiff examined himself as RW.1. He has produced a copy of the notice issued to the first defendant in the suit as Ex.R1. In the cross-examination of PW.1 he admits his signature on Ex.R1, which is marked as Ex.R1(a). Hence, it is clear that the summons in the suit was served. But in his application under Order 9 Rule 13, the first defendant does not refer to the service of notice. In fact, he pleads that notice in the suit is not served on him. In para 9 of the Misc., application it is averred that the cause of action arose on 26.8.2018. Hence, it is clear 11 that despite the first defendant having been served with the notice in the suit, he has averred that he was not aware of the pendency of the suit and he learnt regarding the same on 26.8.2018 when certified copy of the judgment and decree was received from his Advocate.
13. However, it is to be noticed that although he has averred at para 6 of the Misc., application that he came to know about the decree on 26.8.2018 and a certified copy of the judgment was received from his Advocate, it is relevant to note that at para 3 it is averred that the first defendant applied for the certified copy on 26.10.2017 through his Advocate, who obtained the certified copy on 7.11.2017. It is also relevant to note that the name of the Advocate at paras 3 and 6 are the same. It is also averred at para 3 that the first defendant did not come to know about the fact that the certified copy having been obtained by his Advocate on 7.11.2017, which is ex facie not a believable statement.
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14. Although the first defendant has averred regarding him taking medical treatment at Pune and he has produced Ex.P4 to demonstrate the same, it is relevant to note that as per the case of the first defendant he was taking treatment from 17.12.1998 itself and it is stated that he is under follow up treatment. However, it is relevant to note that the summons in the suit is stated to have been served on him on 16.10.2014 which is the date that is appearing below his signature at Ex.R1(a).
15. With regard to the contention of the counsel for the petitioner/plaintiff that the Misc., application filed by the first defendant is belated, it is relevant to note that Article 123 of the Limitation Act states as follows:
Sl. Description of Period of Time from which No. application limitation period begins to run 123 To set aside a decree Thirty days The date of the passed ex parte or to decree or where re-hear an appeal the summons or decreed or heard ex notice was not parte. duly served, when the 13 applicant had knowledge of the decree Hence the period of limitation to set aside a decree passed ex parte is either from the date of the decree or when the summons/notice served is not duly served or when the applicant had knowledge of the decree.
16. In the present case, the summons was served on 16.10.2014 and the suit in OS No.298/2014 was decreed on 2.6.2017. The application by the first defendant under Order 9 Rule 13 of the CPC was filed on 7.9.2018. Hence, there is a delay of 1 year and 3 months in filing the said application. Admittedly, no application for condonation of delay has been filed.
17. The judgments relied on by the learned Counsel for the petitioner/plaintiff are considered as under:14
a) In the case of Mahabir Singh1, the Hon'ble Supreme Court has held as under:
"8. ....... The period of limitation would, thus, be reckoned from that day. As the application under Order 9 Rule 13 of the Code of Civil Procedure was filed one-and-a- half years after the first respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation.
9. In terms of Section 3 of the Limitation Act, 1963, no court shall have jurisdiction to entertain any suit or application if the same has been filed after expiry of the period of limitation. The High Court could not have ignored "
the said jurisdictional fact.
b) In the case of Sneh Gupta2, the Hon'ble Supreme Court has held as under:
"57. ......... Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the date.
59. Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As the appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28-2-2002 i.e., after a gap of four years. There is no reason as to why the factum in regard to 15 passing of the decree could not have been known in July or soon thereafter."
70. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6-11-2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. (See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66] and Sayeda Akhtar v. Abdul Ahad [(2003) 7 SCC 52].)"
(b)(i) In the case of Sneh Gupta2 the Hon'ble Supreme Court was considering a fact situation where consequent to two suits that were pending between the parties a compromise was entered into. Thereafter, an application was filed questioning the compromise. It was contended that, the applicant to the said application had knowledge of the compromise and the application has been filed beyond the period of limitation. In the said fact situation, the Hon'ble Supreme Court has recorded the 16 findings as noticed above. The said factual matrix being completely different from the present case, the said Judgment is inapplicable to the present case.
c) In the case of Basawaraj3 , the Hon'ble Supreme Court has held as under:
"11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible....
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce ...
it giving full effect to the same.
13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. ...
15. The law on the issue can be summarised to the effect that where a case has been presented in the court 17 beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. ..."
( Emphasis supplied)
d) In the case of Majji Sannemma @ Sanyasirao4, the Hon'ble Supreme Court upon considering various earlier judgments rendered by it and applied the same to the facts of the case while considering the aspect of condonation of delay.
e) In the case of Mahabir Singh5, a Division Bench of the Punjab and Haryana High Court has held as under:
"8. Thus, even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the ex parte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be 18 reckoned from that day. As the application under Order IX Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation."
( Emphasis supplied)
18. The learned counsel for the first respondent/first defendant has relied on the judgment in the case of Sesh Nath Singh6, it has been held as under:
"61. Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the court or tribunal to weigh the sufficiency of the cause for the inability of the appellant applicant to approach the court/tribunal within the time prescribed by limitation, there is no bar to exercise by the court/tribunal of its discretion to condone delay, in the absence of a formal application. "
( Emphasis supplied)
19. Having regard to the position of law as is forthcoming from the judgments referred to above and taking into consideration the facts of the present case, even if the arguments of the learned counsel for the 19 petitioner/plaintiff were to be accepted that the first defendant was served with the summons, there is a delay of 1 year and 3 months in filing the application under Order 9 Rule 13 of the CPC for condonation of delay. The first defendant in his application filed under Order 9 Rule 13 of the CPC has set out various grounds to demonstrate reason/sufficient cause for him not being able to effectively contest the suit. The said reason is primarily his addiction to alcohol and his taking treatment regularly. He has also produced the Medical Certificate at Ex.P4 in support of his contention. It is further necessary to note that plaintiff in the objections filed to the application filed under Order IX Rule 13 of CPC has not taken a specific objection that the said application is filed belatedly and that no application is filed to condone the delay in filing the miscellaneous application.
20. It is relevant to note that the suit for specific performance has been decreed directing the first 20 respondent to pay a sum of Rs.8.00 lakhs together with interest and cost. It is the contention of the first defendant that the Agreement of Sale itself is a fabricated one. It is also relevant to note that the first defendant has instituted another suit in OS No.336/2018 which is pending consideration. Hence, it is clear that various rights regarding the suit property are being adjudicated. However, insofar as the present suit is concerned, the petitioner/plaintiff has been successful in the suit and having had the benefit of a decree for payment of money, he would be put to irreparable hardship if the same is set aside.
21. However, having regard to the reasons set out by the first defendant to set aside the ex parte decree, it cannot be said that the first defendant has in any manner been negligent or there are lack of bona fides that can be imputed against the first defendant. The fact that the lis between the parties is with regard to enforcement of the 21 Agreement of Sale dated 4.1.2010, it is relevant to note that the first defendant disputes the very execution of the said Agreement of Sale and denied receipt of any money under the said Agreement. However, the plaintiff has contended that he has paid the advance of Rs.8.00 lakhs by cash to the first defendant. Hence, it is just and necessary that the first defendant be afforded an opportunity to contest the suit in OS No.298/2014.
22. The trial Court having considered the factual aspect of the matter and also having considered the aspect of hardship, has allowed the application of the first defendant and the same is required to be affirmed subject to imposing certain terms having regard to the facts as noticed above. In view of the fact that the decree against the first defendant is one for money, it is expedient that the order passed by the trial Court setting aside the decree be modified by imposing certain terms on the first 22 defendant keeping in mind the hardship caused to the petitioner/plaintiff.
23. In view of the aforementioned, the following order is passed:
ORDER i. The above petition is partly allowed;
ii. The order dated 24.11.2020 passed in Misc.No.16/2018 by the III Additional Senior Civil Judge and CJM., Balagavi, allowing the application and restoring OS No.298/2014 to its original file is affirmed. However, the cost of ₹3,000/- is enhanced to ₹30,000/-;
iii. The allowing of Misc. No. 16/2018 is subject to further terms as detailed hereunder:
a. The first defendant shall appear before the Trial Court in OS No.298/2014 on 2.11.2023 23 without the requirement of any fresh notice being issued in that behalf;
b. The first defendant shall be liable to pay to the plaintiff the cost of ₹30,000/- on or before the date of appearance before the Trial Court;
c. The first defendant shall file his written statement to the suit in OS No.298/2014 on the date of his appearance before the Trial Court;
iv. The Trial Court shall proceed further in OS.No.298/2014 in accordance with law.
(Sd/-) JUDGE nd/-