Karnataka High Court
P Sanjeeva Rao vs Megharaj Daga on 9 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.2010 OF 2021 (POS)
BETWEEN:
1. P SANJEEVA RAO
S/O P SATHYAM
AGED ABOUT 47 YEARS,
R/O LAKSHMI NILAY
SRINIVASANAGARA RAMPURA POST
CHIKKAMAGALURU CITY
2. SMT P LAKSHMI
W/O P SANJEEVA RAO
AGED ABOUT 42 YEARS,
R/O LAKSHMI NILAY
SRINIVASANAGARA RAMPURA POST
CHIKKAMAGALURU CITY
... APPELLANTS
(BY SRI.SAMEER S.N, ADVOCATE)
AND
MEGHARAJ DAGA
S/O BYRUDDING DAGA
AGED ABOUT 65 YEARS,
R/O UB ROAD
KADUR TOWN
CHIKKAMAGALURU TALUK AND DISTRICT
...RESPONDENT
(BY SRI.VINAY KUMAR G.S, ADVOCATE FOR SRI.
NAGARAJA R.C. ADVOCATE FOR C/R)
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 29.07.2021 PASSED IN RA.NO.1/2021 ON
THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE,
CHIKKAMGALURU. DISMISSING THE APPEAL AND THE
JUDGMENT AND DECREE DATED 04.01.2020 PASSED IN
O.S.NO.406/2019 ON THE FILE OF THE III ADDL. CIVIL
JUDGE, CHIKKAMGALURU
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The captioned Second Appeal is filed by the unsuccessful defendants questioning the concurrent judgments and decrees of the Courts below in an ejectment suit.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. [[[[
3. The plaintiff has instituted a suit for ejectment, seeking vacant possession of suit schedule premises in O.S.No.406/2019. Plaintiff contended that defendants are tenants of the suit property on a monthly rent of Rs.6,000/-. Plaintiff further contended that defendants 3 have agreed to hand over vacant possession within 11 months and an agreement was also executed vide agreement dated 10.04.2017. The present suit for eviction is filed after issuing legal notice on 03.04.2019.
4. Though summons were issued on defendants, defendants did not choose to contest the proceedings and were placed exparte and exparte decree was passed directing the defendants to hand over the vacant possession.
5. Defendants feeling aggrieved by the exparte decree of the Trial Court preferred an appeal in R.A.No.1/2021 under section 96(2) of CPC. The ground urged in the appeal memo can be gathered from the order passed by the Appellate Court on an application filed under section 5 of the Limitation Act. It is forthcoming that the appeal was filed by contending that the summons were not served on the defendants. Defendant No.1 has also contended that he is a chronic diabetic patient and therefore, he was under treatment from January 2020 to April 2020. The 4 Appellate Court has rejected the application filed under section 5 of the Limitation Act, consequently, appeal is dismissed.
6. The captioned second appeal is filed by the defendants under section 100 of CPC. Though this Court is of the view that the Appellate Court was not justified in rejecting the application filed under section 5 of the Limitation Act, the present second appeal still does not call for any substantial question of law. It is a trite law that against the exparte decree, defendants have two simultaneous remedies available to them. If their grievance is that summons were never served on them or that they had sufficient cause which prevented them to contest the proceedings, then they have to avail the remedy under the provisions of Order 9 Rule 13 of CPC. Simultaneously, they can also maintain an appeal under section 96(2) of CPC and in absence of defence, question the judgment on merits and apprise the Appellate Court that plaintiff is not entitled for relief even in absence of defence.
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7. Defendants by availing remedy under section 96(2) of CPC, cannot ventilate their grievance in regard to non service of summons. Such a recourse is not permissible under section 96(2) of CPC. The said issue is no more res integra and this Court in the case of Mahantesh vs. Manjunath reported in MSA.No.100093/2017 has clearly held that in an appeal under section 96(2) of CPC, the Appellate Court has to independently assess the material on record and pass judgment on merits.
8. In an appeal under Section 96(2) of CPC, the defendant even in absence of defence can question the merits and contend that the material brought on record by the plaintiff were not sufficient for passing a decree in his favour which necessarily presupposes that defendant even in absence of defence or rebuttal evidence can still argue that evidence available on record is not sufficient to grant any reliefs to the plaintiff. There is no legal impediment in filing an appeal against exparte decree. Though remedies under Order 9 Rule 13 and Section 96(2) of CPC are concurrent but their scope is entirely different. The two 6 remedies provided against exparte decree are in respect of two different situations and can be resorted to only if facts of the situations are available to litigant. Therefore, even otherwise the appeal filed by the defendants under section 96(2) of CPC was not at all maintainable as defendants intended to seek setting aside of an exparte decree. The remedy of seeking setting aside of an exparte decree is available under Order 9 Rule 13 of CPC.
9. It is in this background, this Court is of the view that though appeal is dismissed on the ground of delay, no substantial injury is caused to the defendants as they could not have maintained an appeal under section 96(2) of CPC, seeking setting aside of an exparte decree on the ground that summons were not served.
10. Having regard to the peculiar facts and circumstances of the case, though there was hardly a delay of 48 days in filing the regular appeal, this Court is of the view that it is not a fit case which would warrant interference at the hands of this Court under section 100 7 of CPC. This Court has to bear-in-mind that it is an ejectment suit filed by the land lord. It is a case of monthly tenancy. The legal notice was issued on 03.04.2019 and we are in 2022. We are almost at the fag end of 2022. Ejectment suits are to be summarily decided at the earliest and a true owner is entitled to seek possession of the property, more particularly, when it is a case of monthly tenancy. The tendency of giving a long route to tenant and thereby denying the land lord's right of seeking possession has become an order of the day. A tenant by contesting an ejectment suit often succeeds in squatting over the property for good number of years. The object of speedy remedy under section 106 of the Transfer of Property Act is intended to see that land lords secure possession at the earliest. Even in absence of defence, tenants have succeeded in squatting over the property for more than three years. Tenants in the present case on hand have succeeded in full measure in defending and resisting handing over possession.
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11. Therefore, though the Appellate Court was too hyper-technical in not condoning the delay of 48 days, if an appeal under section 100 of CPC is entertained and the judgment of the Appellate Court is set aside, that would further benefit the tenants and cause irreparable loss to the land lord. It would lead to miscarriage of justice and would also amount to abuse of process. Therefore, I am not inclined to interfere with the judgment and decree of the Appellate Court.
Accordingly, the regular second appeal is dismissed.
In view of dismissal of second appeal, I.A.No.1/2021, does not survive for consideration and stands disposed of.
Sd/-
JUDGE HDK