Karnataka High Court
Mr C M Ibrahim vs Mr P Amidias Mathews on 20 November, 2018
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.9041 OF 2012(CPC)
BETWEEN:
MR. C.M. IBRAHIM
S/O LATE MR. C.M.K. ALI
AGED ABOUT 60 YEARS
RESIDING AT NO.81
BENSON CROSS ROAD
BENSON TOWN POST
BANGALORE - 560 046.
... APPELLANT
(BY SRI. K.V. SHYAMAPRASADA, ADVOCATE)
AND:
1. MR. P. AMIDIAS MATHEWS
S/O MR. A. FRANCIS
MAJOR
RESIDING AT :NO.21/1
S.K. GARDEN, 15TH CROSS
ITI LAYOUT
BANGALORE - 560 046.
2. MR. L. KUMAR
S/O MR. LAKSHMAN
MAJOR
RESIDING AT NO.38
STEPPINGS ROAD
BANGALORE - 560 001.
3. MRS. SAGAYA MARY PREMILA
W/O MR. MARIA ANTHONY
MAJOR
RESIDING AT NO.21/1
I MAIN ROAD, S.K. GARDEN
2
15TH CROSS, ITI LAYOUT
BANGALORE - 560 046.
4. MR. MALAI ARASAN
S/O MR. ARASAN
MAJOR
RESIDING AT NO.20
HENNUR ROAD CROSS
8TH CROSS
BANGALORE - 560 084.
5. MR. D. JAMES
S/O MR. J. DAVID
MAJOR
RESIDING AT NO.34A
MUNIREDDY STREET
M.R. PALYA
BANGALORE.
6. MRS. S. VIJAYAKUMARI
W/O MR. B.S. SELVAM
MAJOR
REISIDING AT NO.21/1
I MAIN ROAD, 15TH CROSS
ITI LAYOUT
BANGALORE - 560 046.
7. MRS. AROKIA MARY
W/O MR. J. SUSAINATHAN
MAJOR
RESIDING AT NO.21/1
I MAIN ROAD, BENSON TOWN POST
15TH CROSS, ITI LAYOUT
BANGALORE - 560 046.
... RESPONDENTS
(BY SRI. M. MOHAN KUMAR AND ASSOSIATES)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER
DATED:10.07.2012 PASSED IN MISC.NO.837 OF 2009 ON THE
FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13
OF CPC, TO SET ASIDE THE JUDGMENT AND DECREE
DATED:05.10.2009 IN O.S.NO.3989 OF 2000.
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THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has preferred this appeal impugning the order dated 10.7.2012 by the XI Additional City Civil Judge, Bengaluru (for short, learned Civil Court) in Miscellaneous No. 837/2009 commenced by the appellant under the provisions of Order IX Rule 13 of the Code of Civil Procedure (for short, CPC). The learned Civil Court by the impugned order dated 10.7.2012 has rejected the petition in Miscellaneous No. 837/2009.
2. The factual background for this appeal is as follows. The respondents - plaintiffs commenced the suit in O.S. No.3989/2000 on the file of the XI Additional City Civil Judge, Bengaluru, initially, for permanent injunction against the appellant -defendant 4 as regards the different immovable properties described in the suit schedule. But, the respondents - plaintiffs later amended the plaint to include the prayer for declaration of title to these properties and for other consequential relief/s, including relief for the mandatory injunction to demolish the building constructed by the appellant - defendant and delivery of possession of these properties. The appellant- defendant was notified of the suit. The appellant - defendant entered appearance through his attorney and filed written statement on 29.6.2000. However, the appellant - defendant neither filed additional written statement nor participated in the proceedings post the amendment of the plaint seeking declaration of title to the suit schedule properties, mandatory injunction to demolish constructions and delivery of possession. The respondents - plaintiffs, who had led evidence even prior to the amendment of the plaint, led further evidence thereafter. The respondents - plaintiffs examined five 5 witnesses on their behalf and marked 26 exhibits. As the appellant - defendant did not participate in the proceedings, no witnesses were examined on his behalf. The learned Civil Court decreed the suit by its judgment and decree dated 5.10.2009.
3. The appellant - defendant filed a petition under Order IX Rule 13 of CPC in Misc.No.837 of 2009 for setting aside this judgment and decree dated 5.10.2009. The appellant - defendant contended in this petition that he was informed by his counsel on record that the appellant - defendant would be informed about the progress in the case and called upon to attend the court whenever required. The appellant - defendant, a politician actively engaged in public affairs, did not participate in the proceedings under the bona fide belief that the counsel on record, as assured, would update him about the proceedings and his presence would not be required until called upon by the counsel. He was 6 under the impression that the suit was pending adjudication. However, when the respondents - plaintiffs started visiting the property asserting adjudication of the suit in their favour, the appellant - defendant verified and ascertained that the suit in O.S.No.3989/2000 was decreed ex parte. The suit schedule properties are utilized for the purposes of running an engineering college. As such, a petition under Order IX Rule 13 of CPC is presented
4. The respondents - plaintiffs entered appearance and resisted the petition. They asserted that the judgment and decree dated 5.10.2009 was not an ex parte decree but was a judgment on merits. The appellant - defendant was served with the notice of the suit, he had entered appearance and had also filed Written Statement. Therefore, the judgment and decree was not an ex-parte decree. The appellant - defendant, being educated, a permanent resident of Bengaluru and 7 fully acquainted with the court proceedings, cannot contend that he did not participate in the proceedings because of assurances by the counsel on record.
5. In Misc.No.837 of 2009, Sri. Syed Haroon Rasheed was examined as PW.1 on behalf of the appellant - defendant and Exhibits P.1 to P.6 were marked. The cross- examination of this witness is to bring out that the appellant -defendant had deliberately not participated in the original suit despite being aware of the same. The respondents - plaintiffs examined five witnesses as RWs.1 to 4 and 6. Their evidence is also to the effect that the appellant was aware of the proceedings, but deliberately had not participated, and that the judgment in O.S.No.3989/2000 was not an ex parte decree. The respondents- plaintiffs did not choose to mark any evidence on their behalf.
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6. The appellant - defendant relied upon a string of decisions which supported two propositions. Firstly, that a litigant cannot be penalized for the default of a counsel, and secondly, a judgment, which is rendered even after the defendant entered appearance and filed written statement, would not be an ex parte decree unless the same is in terms of the provisions of Order XVII of CPC.
7. The learned Civil Court concluded that none of the decisions relied on behalf of the appellant apply to the facts and circumstances of the case. The learned Civil Court also concluded that the appellant was not diligent in defending the suit. Accordingly, the learned Civil Court by the impugned order dated:10.07.2012 dismissed the petition in Misc. No. 837 of 2009.
8. This appeal, which is admitted on 5.2.2014, was listed on 13.11.2018 for hearing. The learned 9 counsel for the appellant - defendant was heard on merits. Though some of the respondents - plaintiffs are served and represented by counsel, none appeared on their behalf. Therefore, the appeal was again listed on 19.11.2018, and even on this day none appeared on behalf of these respondents. But, the learned counsel for the appellant - defendant, who was again heard, relied upon two decisions of the Hon'ble Supreme Court. As such, the appeal was listed for dictation of judgment today. None appeared for these respondents even today. As such, this Court is constrained to examine the merits of the impugned order on the strength of the submissions made by the learned counsel for the appellant - defendant and with the aid of the certified copies of the evidence in Misc. No. 837 of 2009 and the appeal papers.
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9. The learned counsel for the appellant canvassed thus in support of the appeal. The conclusion by the learned Civil Court that the appellant was not diligent in the conduct of the suit is irregular in view of the evidence on record. The judgment and decree in O.S.No.3989/2000 was an ex parte decree against the appellant (the defendant in the suit) and therefore, amenable to jurisdiction under Order IX Rule 13 of CPC. He places reliance on the following decisions of the Hon'ble Supreme Court in support of such proposition: (1) Prakash Chander Manchanda and another vs. Janki Manchanda, reported in AIR 1987 SC 42 and (2) B.Janakiramaiah Chetty vs. A.K. Parthasarathi and Others, reported in (2003)5 SCC
641. In view of the proposition laid down by the Hon'ble Supreme Court especially in the case of B.Janakiramaiah Chetty, supra, the learned Civil Court ought to have examined the appellant - defendant's case in terms of the provisions of Order IX Rule 13 of CPC. 11 The appellant - defendant bona fide placed on record circumstances to explain the appellant- respondent's failure to participate in the proceedings. These bona fide reasons constitute sufficient cause as contemplated under the provisions of Order IX Rule 13 of CPC
10. In view of the grounds canvassed by the learned counsel for the appellant - defendant, the following questions arise for consideration: (1) whether the judgment and decree dated 5.10.2009 is an ex-parte judgment and decree under Order IX of CPC, (2) if such judgment and decree is an ex-parte judgment and decree under Order IX of CPC, whether the appellant has been able to establish sufficient cause for non- participation in the suit in O.S.No.3989/2000, and (3) whether interference is called for with the impugned order dated:10.07.2012 by the learned Civil Court in Misc. No. 837 of 2009.
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11. The Hon'ble Supreme Court while examining the question, whether provisions of Order IX Rule 13 of CPC would be applicable to a case where the defendants had entered appearance and filed written statement, but thereafter not lead any evidence, has, referring to Order XVII Rule 2 and Rule 3 of CPC, concluded:
"9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion course can adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The 13 power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.
10. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party".
There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision."
(Underlining is supplied)
12. Thus, the Hon'ble Supreme Court has held that when a party is absent on a given date, the Court can proceed either under Order XVII Rule 2 of CPC or under Order XVII Rule 3 of CPC depending on what the suit was adjourned for. However, whether under Order 14 XVII Rule 2 or Rule 3 of CPC, if the Court proposes to decide the suit on merits, it must be satisfied about the sufficiency of the evidence for the decision on merits, and if the Court is satisfied that the substantial portion of the evidence is on record and that would be sufficient for deciding the case on merit, the Court can proceed to pass orders on merits. Further, as held by the Hon'ble Supreme Court, "it would be also imperative for the court to record its satisfaction in that perspective". As such, if the Court has not come to such conclusion, or has not recorded such conclusion, the decision would only be an ex parte decision under Order IX of CPC.
13. It is redoubtable that the appellant - defendant did not participate in the proceedings after filing the written statement on 29.6.2000 and the later amendment of the plaint by the respondents- plaintiffs. As such, the appellant - defendant remained absent during the proceedings. The scrutiny of the proceedings 15 in the original suit indicates that the respondents - plaintiffs led evidence in support of the prayer for permanent injunction. Later, they filed a set of applications, including the application for amendment of the plaint to seek the relief of declaration of title and other consequential reliefs as noted supra. This application was allowed by the learned Civil Court on 2.8.2007 because the appellant - defendant did not file objections to these applications. The respondents - plaintiffs, after the application for amendment was allowed, led further evidence. The case was listed for evidence on behalf of the appellant - defendant. The appellant - defendant did not lead evidence. The suit was posted for arguments recording appellant - defendant's absence on 9.4.2008, and later the learned Civil Court posted the suit for judgment. The learned Civil Court found against the appellant - defendant essentially on the ground that the plaint averments had 16 remained uncontroverted. In fact the relevant part of the judgment reads as follows:
"Since the defendant has not challenged the plaint allegation and also the evidence of PW 1 to 5 has also failed to controvert the evidence adduced from the side of PW 1 to 5 I have no option but to hold that the plaintiffs have successfully proved that" the plaintiffs are the owners of the respective portions of the suit schedule properties.
14. As such, the suit in O.S.No.3989/2000 is decreed not because the learned Civil Court was of the opinion that the evidence on record was sufficient for the adjudication on merits. Therefore, as held by the Hon'ble Supreme Court, the impugned judgment and decree would only be an ex parte order and therefore amenable to the jurisdiction under Order IX Rule 13 CPC.17
15. The appellant - defendant has consistently stated that the only reason for his non- appearance/non-participation in the proceedings was because of the assurance by his learned counsel on record to inform him about the case and that he was not accordingly informed. It is undisputed that the defendant has constructed premises in the suit schedule properties which are used for the purposes of running an engineering college. The engineering college even now functions out of such constructions in the suit schedule property. The appellant - defendant undisputedly is engaged in politics. The appellant's justification for non-participation in the proceedings is that because of his engagement in public life he bonefide believed that his counsel on record, who had assured that he would update about the status of the case and call for his presence whenever required, would indeed inform him about the proceedings. But, the counsel did not inform him The respondents- plaintiffs 18 have refuted the appellant's case contending that the appellant, an educated person and a permanent resident of Bangalore, cannot take such a stand. But, the question is, given the appellant - defendant's station in life, would it have been reasonable for the appellant - defendant to await intimation about the need for personal appearance in the Court; if it could be reasonably inferred that he had reasons to believe the assurance and he did not participate in the proceedings, and would it constitute 'sufficient reasons' as contemplated under the provisions of Order IX Rule 13 of CPC for recall of an ex-parte judgment and decree ?
16. The question what constitutes 'Sufficient Reasons' as contemplated under the provisions of Order IX Rule 13 of CPC came up for consideration before the Hon'ble Supreme Court in Parimal vs. Veena @ Bharati reported in (2011) 3 SCC Page 545. The Hon'ble Supreme Court has held, after considering the 19 different decisions rendered on this question as of that date, as follows:
"In order to determine the application under order 9 rule 13 of CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacketed formula of universal application".
17. As such, the appellant- defendant's cause against his non-participation will have to be examined in the totality of the circumstances of the case. The dispute between the appellant and the respondent relate to the declaration of title to a large extent of immobavle properties as well as the demolition of the standing construction and delivery of possession. Though these circumstances alone may not be crucial or relevant, but assumes significance in the facts and circumstances 20 that are particular to the present case. Further, because of the appellant's station in life it would also be reasonable to believe that the appellant-defendant's counsel would have held out the assurance as contended on behalf of the appellant - defendant and that that the appellant - defendant, bonafide believing such assurances, awaited such intimation. Furthermore, it is settled law that a litigant shall not be put to inconvenience or difficulties because of latches on the part of his counsel. These circumstances have not been considered by the learned Civil Court, and these circumstances ought to have been considered by the learned Civil Court. In the totality of the facts and circumstances of the case, this Court is of the considered opinion that the appellant - defendant has been able to establish that he was prevented by sufficient cause from appearing when the suit was listed for hearing. Therefore, the questions formulated are 21 answered in favour of the appellant - defendant, and the following order is made:
18. The appeal is allowed. The impugned order dated 10.07.2012 in Miscellaneous Petition No.837/2009 on the file of the XI Additional City Civil Judge, Bengaluru is set aside and the petition is allowed. The judgment and decree dated 5.10.2009 in O.S.No.3989/2000 is recalled. The suit in O.S.No.3989/2000 is restored to the file of the XI Additional City Civil Judge, Bengaluru for adjudication on merits. The appellant shall be entitled to file additional written statement in response to the amended plaint. The parties shall complete such evidence as may be required.
19. The appellant-defendant shall stand at notice of the first hearing of the suit in O.S.No.3989/2000 before the XI Additional City Civil 22 Judge, Bengaluru on 12.12. 2018 without further notice. If the respondents-plaintiffs are absent, the learned Civil Court shall issue notice of the hearing to the respondents - plaintiffs, at the cost of the appellant- defendant, of the suit being restored for adjudication.
SD/-
JUDGE nv