IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT CRP No.381/2017 BETWEEN:
MR.MAHESH CHANDRA AGARWAL S/O LATE MR.RAGHORAM AGARWAL AGED ABOUT 78 YEARS, R/AT PRESTIGE ST JOHN WOOD APARTMENT BLOCK - HAZEL I, APARTMENT NO.801/802 ST JOHNS CROSS ROAD, TAVAREKERE, BANGALORE-560029 ... PETITIONER (BY SRI AJIT P B, ADV.) AND:
1. MR RINKU DESHPANDE W/O NILESH R DESHPANDE AGED ABOUT 41 YEARS, R/AT NO.70/19, E CASE ORCHARD 8TH MAIN, 8TH CROSS, R.M.V. EXTENSION, SADHASHIVANAGAR BANGALORE-560080 2. MR.NILESH R DESHPANDE S/O RATNAKAR V DESHPANDE AGED ABOUT 45 YEARS, R/AT NO.70/19, E CASE ORCHARD 8TH MAIN, 8TH CROSS, R.M.V. EXTENSION, SADHASHIVANAGAR BANGALORE-560080 BOTH ARE ALSO RESIDE AT PEBBLE BAY APARTMENT TOWER NO.4, FLAT NO.123, 1ST MAIN, RMV II STAGE, DOLLARS COLONY BANGALORE-560 094 ... RESPONDENTS (BY SRI SATISH G RAIKAR SUBRAMANYAM, ADV.) THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 01.08.2017 PASSED IN MISC NO.150/2016 ON THE FILE OF THE LXVI ADDL. CITY CIVIL AND SESSIONS JUDGE, ALLOWING THE PETITION FILED UNDER ORDER IX RULE 13 R/W SECTION 151 OF CPC.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court under Section 115 of the Code of Civil Procedure, (for short ‘the CPC’) aggrieved by the order dated 1.08.2017 passed in Misc.No.150/2016 by which the petition filed by the respondents herein under Order IX Rule 13 of CPC to set aside the exparte judgment and decree passed in O.S.No.7935/2015, is allowed.
2. The petitioner herein filed suit O.S.No.7935/2015 for recovery of a sum of Rs.6,45,30,000/- along with other reliefs. The suit came to be decreed vide judgment and decree dated 04.12.2015. The judgment and decree was passed exparte. The respondents 1 and 2 filed Misc. petition under Order IX Rule 13 of CPC to set aside the exparte judgment and decree. The said petition after recording of evidence was allowed by the impugned order dated 01.08.2017. The plaintiff is before this Court challenging the order dated 01.08.2017 by which the Misc. petition filed under Order IX Rule 13 of CPC was allowed. Even though the entire Order is under challenge, the counsel for the petitioner restricted his submission with regard to non imposition of any terms, while allowing the application since the suit is for recovery of money.
3. Heard the learned counsel for the petitioner and learned counsel for the respondents. Perused the petition papers.
4. The only contention and grievance made out by the learned counsel for the petitioner is that while allowing the Misc. petition filed under Order IX Rule 13 of CPC, the Court has not put the defendants/respondents on terms. It is his contention that the petitioner /plaintiff had obtained money decree and the Court while decreeing the suit had passed the following order :-
“Further it is decreed by way of permanent injunction that defendants herein are restrained from alienating suit schedule properties by way of sale, gift or any other mode or creating charge of any third party rights over suit schedule properties until amount of Rs.6,45,30,.000/- with interest at the rate of 9% p.a. is paid to the plaintiff.”
5. The learned counsel for the petitioner would submit that since the suit is for recovery of money. The defendants are to be put on terms. He relies upon the decision of NAHAR ENTERPRISES Vs. HYDERABAD ALLWYN LTD. AND ANOTHER reported in (2007) 9 SCC 466 AND TEA AUCTION LTD., VS. GRACE HILL TEA INDUSTRY (2006) 12 SCC 104 to contend that it is open for the Courts to put the parties on terms, while allowing the petition filed under Order IX Rule 13 of CPC.
6. Per contra, learned counsel for the respondents would submit that the defendants are disputing the entire claim as it is barred by time, but he admits that the Court could impose terms while allowing the petition filed under Order IX Rule 13 of CPC.
7. The Hon’ble Supreme Court in the case of TEA AUCTION LTD. (supra) at paragraph 15 and 16 observed as follows:-
“15. Order 9 Rule 13 CPC did not undergo any amendment in the year 1976. The High Courts, for a long time, had been interpreting the said provision as conferring power upon the courts to issue certain directions which need not be confined to costs or otherwise. A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also on other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith. But, it would not be correct to hold that no effort has been committed by the Division Bench in holding that the learned Single Judge did not possess such power. The learned Single Judge exercised his discretionary jurisdiction keeping in view that the matter had been disposed of in fact finally at the interim stage at the back of the defendant and it was in that view of the matter a chance was given to it to defend the suit, but then the learned Single Judge was not correct to direct securing of the entire sum of Rs.37 lakhs in the form of bank guarantee or deposit the sum in cash. The condition imposed should have been reasonable. What would be reasonable terms would depend upon the facts and circumstances of each case.
16. In Karumuri Surayya v. Thadepalli Pushpavalli Thayaramma a learned Single Judge of the Madras High Court stated the law in the following terms.(AIR P.618 para 4) “It seems to me that the wording ‘upon such terms as to’ in the rule should be read as applying not only to costs but to ‘payment into court or otherwise as it thinks fit’ as well. I do not think that punctuation referred to above in the rule in any way lends support to the contention of the advocate for the petitioner. It looks to me that the rule does not restrict the power of the Court to impose conditions for setting aside an ex parte decree to payment of costs only. The wording of the rule is comprehensive enough to include conditions as to payment into Court of decretal amount or such other conditions as the Court thinks fit. Ordinarily, the Court will not impose onerous conditions upon the defendant, such as the payment into Court of the whole or part of the decretal amount or as to furnishing of security thereof, etc. The conditions as to deposit of decretal amount or such similar terms are imposed only under special circumstances. It is one thing to say that it is either inequitable or unjust to put the defendant to such onerous terms, but it is quite a different thing to say that the Court has no jurisdiction at all to impose such terms under any circumstances.”
8. Having regard to the peculiar facts of the present case, since the petitioner/plaintiff had the judgment and decree in his favour, which was set aside on the petition filed by the respondents/defendants under Order IX Rule 13 of CPC, it is just and appropriate to put the defendants/respondents on terms, moreover when it is a suit for recovery of money. In the decision cited supra, it is held that while allowing the petition filed under Order IX Rule 13 of CPC, reasonable condition could be imposed.
9. In that view of the matter, the defendants are put on terms not to alienate nor in any way deal with the suit schedule properties during the pendency of the suit. The trial Court to expedite the trial of the suit and the parties to the suit shall co-operate for expeditious disposal of the suit.
With the above observation, the petition is disposed off.
Sd/- JUDGE NG* CT:bms