IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.2803 OF 2015 (CPC) BETWEEN:
K M MARUTHI S/O SRI K R MARIYAPPA AGED ABOUT 49 YEARS R/AT NO.2, SRI ANNAPOORNESWARI NILAYA, NEAR ESHWARA TEMPLE, KOTE KENGERI, BENGALURU - 560060. ... APPELLANT (BY SRI D S JAYARAJ, ADVOCATE) AND:
SMT SHYALAJA CHIPLUNKAR, W/O SRI M R CHIPLUNKAR AGED ABOUT 47 YEARS NO.18, 1ST MAIN 1ST CROSS BANASHANKARI III STAGE 3RD PHASE BENGALURU – 560085. ... RESPONDENT (BY SRI.CHANDRASHEKAR ACHAR K, ADVOCATE) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (D) OF CPC, AGAINST THE ORDER DATED 06.02.2015 PASSED IN MISC.PETITION NO.715/2012 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU, DISMISSING THE PETITION FILED UNDER ORDER IX RULE 13 AND SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel for both parties, arguments are heard on merits.
2. This appeal is filed for setting aside the impugned order dated 06.02.2015 passed in Misc.No.715/2012 passed by the XXXIX Addl. City Civil and Sessions Judge and to restore O.S.No.6917/2008 to its original file.
3. The facts briefly stated are that the appellant, who is defendant in O.S.No.6917/2008, had filed Misc.Petitoin No.715/2012 for setting aside the exparte judgment and decree passed on 06.01.2012 in O.S.No.6917/2008, but the said Miscellaneous petition was dismissed. Being aggrieved by the said order, the appellant has preferred this appeal.
4. The only grievance of the appellant is that the notice was not served on him, thus, he was unable to appear in the original suit and defend his case. The appellant/defendant was deprived of an opportunity to putforth his defence and safeguard his interest. According to the report of the process server and also the Postal Department, the address of the appellant/defendant was not correct, but the service was held sufficient and the defendant was placed exparte. The Court below has erred in holding that the postal envelope is having shara as “unclaimed”, so there was proper service to the defendant. There was a delay of more than 210 days in filing the miscellaneous petition as the appellant was not aware of the exparte judgment and decree.
5. As could be seen from the impugned order, the Court below has observed that according to the process server, the address shown in the summons was not correct and the shara is shown on the postal envelope as “unclaimed”. As such, there are doubtful circumstances regarding the proper service of summons to the appellant/defendant.
6. The defendant is deprived of an opportunity to putforth his defence. It is pertinent to note that the respondent/plaintiff in miscellaneous petition has admitted in her cross-examination that if the miscellaneous petition is allowed, she will not incur any loss or inconvenience. Admittedly, it is only a bare injunction suit, as such no title or legal right created in favour of plaintiff.
7. In the facts and circumstances of the case, there are valid grounds to hold that there was no proper service of summons to the appellant/defendant and the Court below has erred in dismissing the miscellaneous petition on the assumption that there was proper service of summons to the appellant/defendant.
8. For the foregoing reasons, this appeal is allowed. The impugned order dated 06.02.2015 passed in Misc.No.715/2012 passed by the XXXIX Addl. City Civil and Sessions Judge, Bengaluru, is hereby set aside and the O.S.No.6917/2008 is ordered to be restored to its original file.
Both the parties are directed to appear before the Trial Court on 28.03.2019.
Sd/- JUDGE BSR