IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS.JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.10808/2013 BETWEEN:
K.N.PRAKASH, AGED ABOUT 47 YEARS, S/O.LATE K.P.NARAYANAPPA, NO.5, NEW BAZAR STREET, K.R.PURAM, BANGALORE – 560 036.
(BY SRI K.S.UDAY, ADVOCATE FOR SRI C.M.NAGABHUSHANA, ADVOCATE) AND:
V.KRISHNA MURTHY, AGED ABOUT 50 YEARS, S/O. SRI N.R.VENU GOPAL NAIDU, NO.121/26, 16TH MAIN, B.S.K. I STAGE, 2ND BLOCK, BANGALORE – 560 050.
…APPELLANT ... RESPONDENT (BY SRI RAGHAVENDRA S.V., ADVOCATE FOR SRI ZULFIKIR KUMAR SHAFI, ADVOCATE) THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(d) OF CPC AGAINST THE ORDER DATED 22.11.2013 PASSED ON I.A.NO.3 IN MISC.NO.282/2011 ON THE FILE OF THE 11TH ADDITIONAL CITY CIVIL JUDGE, BANGALORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Respondent filed O.S.No.10218/2005 on the file of XI Additional City Civil Judge, Bengaluru, against the appellant for specific performance of agreement of sale dated 30.06.2004.
2. In the said suit, the appellant appeared and filed his written statement. The Trial Court framed the issues and proceeded for trial. The appellant though filed the written statement failed to cross- examine the respondent’s witness and lead his own evidence in the suit. The Trial Court decreed the suit on 14.02.2011.
3. Thereafter, the appellant filed Misc.No.282/2011 before the IX Additional City Civil Judge, Bengaluru, against the respondent under Order IX Rule 13 CPC for setting aside the exparte decree. In the said petition, the respondent filed I.A.3 under Section 151 CPC to dismiss Misc.No.282/2011 as not maintainable.
4. The Trial Court, on hearing the parties, by the impugned order, allowed the said application and dismissed Misc.No.282/2011 on the ground that a decree passed after filing a written statement and framing of issues does not amount to exparte decree as contemplated under Order IX Rule 13 CPC. The appellant challenges the said order in this appeal.
5. The sole question in this appeal is whether the judgment and decree passed after filing of the written statement could be termed as exparte decree.
6. The Hon’ble Supreme Court in G.RATNA RAJ (D) BY LRS. Vs. SRI MUTHUKUMARASAMY PERMANENT FUND LTD. & ANOTHER - 2019 SCC ONLINE SC 114, considering similar contention, referring to interdynamics of the provisions of Order XVII Rule 2 CPC and Order IX Rules 6 & 13 held that such decree is an exparte decree within the meaning of Order IX Rule 6(a) read with Order IX Rule 13 and therefore, Order IX Rule 13 CPC can be invoked for setting aside such decree if sufficient ground is made out by the defendant. This matter is squarely covered by the said ratio laid down in the said judgment.
7. Except the ground of maintainability, the Trial Court had not considered the matter on merits. The parties had not adduced any evidence.
8. Under the circumstances, the petition is allowed. The impugned order dated 22.11.2013 in Misc.No.282/2011 on the file of the II Additional City Civil Judge, Bengaluru (CCH-8) is hereby set aside.
I.A.3 filed by the respondent under Section 151 CPC is hereby dismissed.
9. Matter is remitted back to the Trial Court for reconsideration on merits. To avoid further delay, parties are hereby directed to appear before the Trial Court on 28.11.2019.
10. The Trial Court shall hear the parties and dispose of the matter as early as possible, at any rate, within a period of six months from the date of appearance of the parties before it.
Sd/- JUDGE PKS