Karnataka High Court
Sri. Gunashekaran K. B. vs Sri. Somashekar Reddy on 3 February, 2020
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 6070 OF 2019 (CPC)
BETWEEN:
SRI. GUNASHEKARAN K.B.
SON OF K.A. BHAKTAVATALAM
AGED ABOUT 54 YEARS
RESIDING AT NO.6, 2ND CORSS
DEVASANDRA MAIN ROAD
K.R. PURAM, BENGALURU - 560 036.
... APPELLANT
(BY SRI.MADHU N.RAO., ADVOCATE)
AND:
SRI. SOMASHEKAR REDDY
SON OF VENKATARAMANA REDDY
AGED ABOUT 41 YEARS
RESIDING AT NO. 15, 'B' BLOCK, D.S. MAX
SAMRAT, HMR LAYOUT
J.P. PARK
BENGALURU - 54.
... RESPONDENT
(BY SMT. M. PARVATHI, ADVOCATE)
THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED
17.07.2019 PASSED IN MISC. NO. 811/2017, ON THE FILE OF
THE XVII ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
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BENGALURU (SCCH-16), DISMISSING THE PETITION FILED
UNDER ORDER 9 RULE 13 OF CPC.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the petitioner calling in question the order dated 17.7.2019 in Misc.No.811/2017 on the file of the XVII Additional City Civil and Sessions Judge, Bangalore whereby, the appellant's petition under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 and the application under Section 5 of the Limitation Act are rejected.
2. The appellant's case is that the respondent has filed the suit in O.S.No.1475/2016 against the appellant for specific performance asserting the agreement of sale dated 15.6.2013. The appellant is not served with the notice of such suit. But the bailiff has filed a report with the Civil Court stating that the suits summons are personally served on the appellant and that he has obtained the appellant's -3- signature. However, the bailiff neither has served the summons on the appellant nor the appellant has signed the summons acknowledging the receipt thereof. The signature found in the summons returned by the bailiff as part of his report, is not the appellant's signature. The respondent has also deliberately furnished the wrong address.
3. The learned counsel for the appellant submits that the respondent has mentioned that the appellant resides in No.6, II Cross, Nethravathi Badavne behind Venkateshwara Theatre, Devasandra Main Road, K.R.Puram, Bangalore, but the appellant actually resides in premises No.6, Devasandra Main Road, K.R.Puram, Bangalore - 560 003. The difference in the address mentioned is material and significant, but this has been overlooked by the civil Court.
4. The learned counsel for the appellant further submits that the civil Court has dismissed the petition on -4- the ground that the appellant has not placed any material on record except his own self serving testimony and that the appellant has admitted the correctness of the address as mentioned by the respondent. But the appellant has bona fide failed to examine the bailiff and lead necessary evidence to substantiate that the signature in the bailiff's report is not his signature. If the appellant is permitted to lead evidence in this regard, such evidence would bolster the appellant's case based on non-service of suit summons.
5. The learned counsel for the respondents submits that after the decree in the suit in O.S.No.1475/2016, the respondent has secured the sale deed for the subject property however the possession is yet to be delivered because of the interim order granted by this Court. The appellant cannot dispute that the suit summons issued to him by the civil Court through RPAD is served on him. If suit summons indeed is served through RPAD, the appellant cannot deny knowledge of this suit. The -5- appellate Court has properly appreciated the evidence on record and dismissed the appellant's petition for setting aside the judgment in OS No. 1475/2016.
6. The question that arises for consideration in this case is: "Whether the appellant is entitled for another opportunity to demonstrate that the bailiff indeed did not serve the suit summons on him and the report filed by the bailiff in O.S.No.1475/2016 does not bear his signature".
7. The civil Court has dismissed the petition filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908 both on the ground of delay and merits. The civil Court has also observed that the appellant has admitted in his cross-examination that the address furnished by the respondent relates to his address. However, the appellant's case is that the suit property pertains to a residential property which is in his self -6- occupation, and he would not have avoided the service of suit summons at that address and invited the peril of an ex-parte judgment. The appellant's further case is that the appellant has not examined the bailiff or lead evidence to substantiate his case that the report by the bailiff does not bear his signature only because of lack of knowledge and proper guidance. The appellant could have definitely lead adequate evidence to demonstrate that the bailiff did not serve suit summons on him and the bailiff's report does not bear his signature. The entire focus in law is to see that a lis is decided on merits if a party is able to demonstrate bona fides and sufficient cause. If the appellant is able to establish bona fides, the question whether the appellant has shown sufficient cause for recall of the ex parte order and the condonation of delay could be examined in the light of such bona fides. In the circumstances of the case, this Court is of the considered view that, in the interests of justice, the impugned order should be set aside and the -7- Miscellaneous Petition No.811/2017 on the file the XVII Additional City Civil and Sessions Judge, Bengaluru, be restored to the board of the Civil Court for fresh consideration with liberty to the appellant to lead fresh evidence. It would also be just and reasonable to continue the interim order of stay granted by this Court until the first date of hearing before the civil Court with liberty to the appellant to seek interim protection during the pendency of the Miscellaneous Petition. Therefore, the following:
ORDER The appeal is allowed in part, and the impugned order dated 17.7.2019 in Misc.P.No.811/2017 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru, is set aside. The petition in Misc.No.811/2017 is restored to the board of the Civil Court for reconsideration with liberty to the appellant and the respondent to lead further evidence. The Civil Court shall decide on the merits of the -8- Miscellaneous Petition as expeditiously as possible but within an outer limit of three months from the date of first hearing. The parties shall appear before the Civil Court without further notice of first hearing on 2.3.2020.
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JUDGE nv CT:sr