Karnataka High Court
Smt. Swapna Ketkar vs Sri. Venkatachalaiah on 14 June, 2024
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NC: 2024:KHC:21246-DB
RFA No. 601 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 601 OF 2024 (SP)
BETWEEN:
SMT. SWAPNA KETKAR,
W/O ANAND KETKAR,
AGED ABOUT 73 YEARS,
PRESENTLY R/AT NO.503, BLOCK NO.3,
SKYLINE APARTMENTS, CHANDRA LAYOUT,
BENGALURU-560040,
PERMANENT RESIDENT AT:
FLAT NO.303, NOUKA SOCIETY,
RAMANAGAR BAVDHAN PUNE-411021,
WRONGLY SHOWN IN THE TRIAL
COURT CAUSE TITLE AS:
R/AT NO.1298, A MAIN ROAD
11TH CROSS, WEST OF CHORD ROAD,
Digitally 2ND STAGE, BENGALURU-560086.
signed by C
HONNUR ...APPELLANT
SAB (BY SRI PRASANNA KUMAR P, ADVOCATE)
Location:
HIGH COURT AND:
OF
KARNATAKA
SRI. VENKATACHALAIAH,
S/O LATE VENKATARAMANAPPA,
AGED ABOUT 58 YEARS,
R/AT NO.92, NEW CTO OFFICE,
OPPOSITE COURT OF LAW,
DODDABALLAPRUA TOWN AND TALUK,
BENGALURU RURAL DISTRICT-561203.
...RESPONDENT
(BY SRI KUMBAR VASANT FAKEERAPPA, ADVOCATE)
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RFA No. 601 of 2024
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 29.01.2022 PASSED IN OS NO.9397/2019 ON THE FILE
OF XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE., DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
JUDGMENT
1. Learned counsel for the appellant and respondent jointly submit that the appeal may be taken up for final disposal though the appeal is listed for hearing on application for condonation of delay. Accordingly, the appeal as well as the application for condonation of delay are heard on merits.
2. This appeal is arising from the judgment and decree dated 29.01.2022 in O.S. No.9397/2019 on the file of XXV Additional City Civil Judge, Bangalore. In terms of the impugned judgment and decree, the suit for specific performance is decreed.
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3. The defendant is in appeal. Along with this appeal, an application is also filed i.e., I.A. No.1/2024 to condone the delay of 647 days in filing the appeal.
4. Learned counsel appearing for the appellant would submit that the decree passed is an ex-parte decree pursuant to a notice published in a newspaper by way of a substituted service as there was no service of notice sent through registered post on the appellant/defendant. It is his further submission that on the date of the filing of the suit as well as on the date when the notice was sent through registered post for service on appellant/defendant, was not residing in Bangalore, and was residing in Pune. The notice is allegedly sent to an address in Bangalore where the appellant was not residing.
5. Learned counsel for the respondent would submit that the notice is sent to the address mentioned in the agreement for sale executed by the -4- NC: 2024:KHC:21246-DB RFA No. 601 of 2024 defendant/appellant and there is a valid service of summons issued in the suit.
6. Learned counsel for the appellant on the other hand would contend that the appellant has not signed the agreement for sale and address shown in the agreement is incorrect address.
7. It is the submission of the learned counsel for the appellant that he came to know about the impugned judgment and decree in the month of February, 2024 when he obtained encumbrance certificate. Thus, he has filed this appeal along with an application for condonation of delay.
8. This Court has considered the contentions raised at the bar.
9. The following points arise for consideration.
i) Whether the appellant has made out a case for condonation of delay in filing the appeal?-5-
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ii) Whether the impugned judgment and decree are to be set-aside and the matter needs to be remitted to the trial Court for fresh trial in accordance with law?
10. Though it is stated that there is a delay of 647 days in filing the appeal, it is to be noticed that under Article 123 of the Limitation Act, the limitation begins to run from the date of the knowledge of the decree not from the date of the decree as in the case where the summons is duly served on the party. Thus, we are of the view that there is no delay in filing the appeal. Accordingly, the application at I.A. No.1/2024 for condonation of delay does not survive for consideration as it is superfluous.
11. On perusal of the records, it is evident that there is no proper service of notice on the defendant/appellant who was residing in Pune at the time the suit was filed. When the suit summons was issued to the address in Bangalore, the appellant was -6- NC: 2024:KHC:21246-DB RFA No. 601 of 2024 not residing in the said address. The postal endorsement would also indicate that the addressee was not found in the said address. Hence, this Court is of the view that there is no valid service of suit summons.
12. It is also noticed that the suit is one for specific performance of the contract where the appellant is raising a contention that he has never executed an agreement for sale in favour of the plaintiff. Considering the contentions raised in the appeal memo and the considering the fact that there was no proper service of notice on the appellant without entering into the merits of the case, this Court is of the view that the impugned judgment and decree are to be set-aside and accordingly, set-aside.
13. The matter is remitted to the trial Court permitting the defendant to appear before the Trial Court and to file the written statement and contest the suit.
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14. The parties shall appear before the trial Court on 01.07.2024 without awaiting any further notice.
15. The defendant/appellant shall file written statement within fifteen days from the date of appearance before the Trial Court.
16. The Trial Court shall endeavour to decide the suit as expeditiously as possible.
17. The appellant is entitled to refund of admissible Court fee.
18. Both the parties shall cooperate for early disposal of the suit.
Sd/-
JUDGE Sd/-
JUDGE CHS List No.: 1 Sl No.: 22