Karnataka High Court
Sri B R Shivananda vs Mr Habeeb-Ur-Rehman on 2 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CIVIL REVISION PETITION No.61 OF 2019
BETWEEN
Sri. B.R. Shivananda,
Aged about 63 years,
S/o late B. Ramakrishnaiah,
R/at No.659, 11th Cross,
7th Block, Jayanagar,
Kanakapura Road,
Bengaluru - 560 072.
Presently,
R/at Out House in premises No.673,
1st Floor, 27nd 'A' Cross, BSK 2nd Stage,
Bengaluru - 560 070 and
Shop Premises No.6/1,
Mavalli Tank Bund Road,
Bengaluru - 560 002. ... Petitioner
(By Sri. K.K.Vasanth, Advocate)
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AND
Mr. Habeeb-Ur-Rehman,
Aged about 54 years,
S/o Ali Janab Aziz-Ur-Rehman,
R/at No.407, Main Bazaar,
Ooty, Neelagiris,
Tamil Nadu - 641 018.
Represented by his General Power of
Attorney Holder,
Mr. Ubaidur Rahman,
Aged about 70 years,
S/o Ali Janab Aziz-Ur-Rahman,
R/at No.325, Main Bazaar,
Ooty, Neelagiris,
Tamil Nadu - 641 018. ... Respondent
(By Sri. Hussain Sharieff, Advocate)
This Civil Revision Petition is filed under Section
18 of Karnataka Small Causes Courts, Act, 1964
against the judgment and decree dated 18.01.2019
passed in Misc.No.15001/2018 on the file of the V
Additional Small Causes Judge and XXIV ACMM.,
Member MACT, Bengaluru, rejecting the application
filed under Sec.5 of the Limitation Act., to condone the
delay of 694 days in the filing the petition under Order 9
Rule 13 of CPC and consequently dismissing the
petition.
This Civil Revision Petition coming for Admission,
on this day, the court made the following:
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ORDER
Heard the petitioner counsel and respondent's counsel.
2. The petitioner was defendant in S.C.No.15314/2015, a suit for ejectment filed by the respondent herein. The petitioner was placed exparte in the suit and decree of eviction was passed against him. Later on, the petitioner made a petition, Misc.No.15001/2008 under Order IX Rule 13 of C.P.C., seeking restoration of suit by setting aside the exparte decree. Since there was delay of 694 days in filing the miscellaneous petition, he has also made an application under Section 5 of the Limitation Act. The trial Court rejected the same by observing that the delay was inordinate. The petitioner stated that he came to know about the eviction decree passed against him when he participated in the execution proceedings initiated by the respondent.
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3. Learned counsel for the petitioner submits that there was no actual service of summons on the petitioner in the suit. The petitioner is running a fair price shop. He keeps open his shop from 8 a.m. till 12 p.m. and 4 p.m. to 8 p.m., except on Tuesdays. If the postman had come to fair price shop for delivering the summons sent by registered post, when the shop was closed, there could not be delivery of registered post, and therefore, shara made by the postman that the petitioner did not claim the mail was not correct. The petitioner did not know about the eviction decree passed against him till he received the delivery warrant in the execution case. Immediately after coming to know of the decree in the suit, he moved a miscellaneous petition under Order IX Rule 13 of CPC. Actually there was no delay from the date of knowledge. The trial Court has come to a wrong conclusion that the petitioner had knowledge of suit much before he moved a petition for restoration. Therefore, it is his submission 5 that the petition should be allowed and matter remanded to the trial Court to give an opportunity to the petitioner to contest the eviction proceedings.
4. Learned counsel for the respondent opposed the petition by submitting that there was due service of summons on the petitioner in the suit. There was delay in filing miscellaneous petition. The trial Court has come to the right conclusion.
5. On perusing the impugned order it is to be stated that the trial Court has observed in the judgment that there was due service of summons on the petitioner and he did not claim summons intentionally. The petitioner's counsel produced the order sheet in the suit. The proceedings recorded on 11.01.2016 shows that the petitioner did not claim RPAD. What is contended now is that in-between 12 p.m. and 4 p.m., the shop would remain closed and during that time, if the postman had come for delivery of the mail, there 6 could be no delivery of mail. The shara made on the postal cover as 'Not Claimed' in these circumstances may not be correct. Anyway, the petition under Order IX Rule 13 of CPC was made to set aside the exparte judgment of eviction. The petitioner is running a fair price shop. The petitioner also may be ready for settlement. Under these circumstances, I come to the conclusion that the petition may be allowed, the petitioner may be subjected to some terms. At this juncture, respondent's counsel submits that the petitioner is due to pay arrears of rent. Taking note of the submissions, the following order is passed:
6. Petition is allowed. The order dated 18.01.2019 is set aside. I.A. filed under Section 5 of the Limitation Act in the miscellaneous petition is allowed and the delay is condoned. Consequently, the miscellaneous petition No.15001/2018 filed under Order IX Rule 13 of CPC is allowed and the judgment of 7 the trial Court in S.C.No.15314/2015 is set aside. The suit is restored. The petitioner shall pay cost of Rs.10,000/- to the respondent. He shall also pay the entire arrears of rent to the respondent within a period of two weeks from the date of appearance of the parties before the Court.
The parties shall appear before the Court below on 23.03.2020. The trial Court shall dispose of the suit as expeditiously as possible.
Sd/-
JUDGE NR/-