IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION NO.384 OF 2019 BETWEEN:
1. SHANTHA PADMANABAIAH, W/O LATE PADMANABAIAH B.V, AGED ABOUT 56 YEARS, 2. P.MANJUNATH, S/O LATE PADMANABAIAH B.V., AGED ABOUT 38 YEARS, PETITIONERS NO.1 AND 2 ARE RESIDING AT NO.1116, 10TH D CROSS, 2ND STAGE, WEST OF CHORD ROAD, MAHALAXMIPURAM ROAD, BENGALURU – 560 086.
3. P.MOHANA KUMARI, D/O LATE PADMANABAIAH B.V., AGED ABOUT 36 YEARS, R/AT NO.119/120, 1ST FLOOR, SATHYANARAYANA LAYOUT, 3RD STAGE, 4TH BLOCK, BASAVESHWARANAGAR, BENGALURU – 560 079.
4. P.MANGALA, D/O LATE PADMANABAIAH B.V., AGED ABOUT 34 YEARS, R/AT NO.119/120, 2ND FLOOR, SATHYANARAYANA LAYOUT, 3RD STAGE, 4TH BLOCK, BASAVESHWARANAGAR, BENGALURU – 560 079.
... PETITIONERS (BY SRI. VIGNESHWARA U., ADVOCATE) AND:
1. N.RAMESH, S/O LATE D.NARAYANA SHETTY, AGED ABOUT 58 YEARS, R/AT NO.2, DHARMARAYA TEMPLE STREET, NARASAPURA VILLAGE, VEMGAL HOBLI – 562 301, KOLAR TALUK AND DISTRICT.
2. N.K.PRAKASH, S/O LATE V.KRISHNAPPA @ LORRY KRISHNAPPA, AGE MAJOR, R/AT GANDRAGULIPURA, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE DISTRICT – 560 120.
... RESPONDENTS THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.03.2019 PASSED IN MIS.NO.14/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA ALLOWING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC.
THIS CRP COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Even though civil revision petition is listed for orders, the matter is heard on merits as well as on I.A.No.1/2019 for condonation of delay in filing the revision petition.
2. The revision petition is directed against the order dated 29.03.2015 in Misc. No.15/2015 on the file of the Additional Senior Civil Judge MACT, Srirangapatna by which miscellaneous petition filed under Order 9 Rule 13 of CPC is allowed and judgment and decree dated 29.01.2015 in O.S.No.24/2012 is set aside and suit is restored to the file to decide the matter on merits. The petitioners herein are plaintiffs and respondents herein are defendants in O.S.No.24/2012 filed for judgment and decree for specific performance of agreement. For the sake of convenience the parties are referred to as per their ranking before the court below.
3. Brief facts of the case are that the 1st defendant being the absolute owner of the suit schedule land and revenue documents of the schedule being in his name had entered into an agreement of sale on 20/8/2010 with the plaintiff and the sale consideration being fixed at Rs.29,50,000/- and had received Rs.18,00,000/- as earnest amount. The essence of agreement being fixed at 9 months, it was agreed to execute sale deed after obtaining the survey sketch subsequently an extension was taken by executing another agreement dated 13/5/2011. but, however the 1st defendant had executed a sale deed dated 30/9/2011 in favour of the 2nd defendant. The Suit summons were issued to the defendants wherein defendant No.2 appeared and filed written statement. Suit summons issued to defendant No.1 was unserved and paper publication was taken out for service of notice. The suit proceeded further and came to be decreed on 29.01.2015. On coming to know about the passing of decree in O.S.No.24/2012 the 1st defendant filed Mis. No.14/2015 under Order 9 Rule 13 of CPC to set aside the exparte decree dated 29.01.2015 along with an IA under Section 5 of the Limitation Act, for condonation of delay of 56 days in filing the petition. On service of notice to the petitioners herein who are respondents in Mis.No.14/2015, filed their statement opposing their miscellaneous petition.
4. Defendant No.1/respondent No.1 was examined as PW1 and documents were marked as Exs.P1 to P18. The petitioner No.2 herein examined as RW1 and marked documents Exs.R1 to R8. The trial Court on examining the material on record allowed the miscellaneous petition filed under Order 9 Rule 13 of CPC and set aside judgment and decree dated 29.01.2015 in O.S.No.24/2015. Aggrieved by the said judgment and decree, plaintiffs are before this Court in Revision Petition under Section 115 of the CPC.
5. Heard the learned counsel for petitioners on merits as well as on I.A.No.1/2019 for condonation of delay.
6. Learned counsel for the petitioners submit that the trial Court committed an error in allowing the miscellaneous petition filed under Order 9 Rule 13 of CPC. His submission is that the plaintiffs have taken up suit summons to the available address of defendant No.1 but it had not been served and paper publication was taken out for service of summons. The trial Court ought not to have believed the version of defendant No.1 that he was residing at Chennai at that relevant point of time. It is his submission that no cogent reasons have been assigned for his non-appearance and to set aside ex-parte decree. The defendant No.1 had given deliberately wrong address. The Defendant No.1 had not assigned acceptable reasons to condone the delay in filing the petition. The paper publication for service of notice was taken out in the locality where the defendant No.1 was residing.
7. On hearing the learned counsel for the petitioners and on perusal of material on record, the only point which arises for consideration is as to Whether the trial Court committed material or jurisdictional irregularity in allowing the miscellaneous petition filed under Order 9 Rule 13, CPC?
Answer to the said point is in the negative for the following reasons.
The petitioners herein were plaintiffs in O.S.No.24/2012 filed for specific performance of agreement. On issuance of suit summons, defendant No.2 was served with the suit summons and he appeared and filed written statement. Defendant No.1 was not served with suit summons and the plaintiffs had taken out paper publication for service of notice. The contention of respondent No.1 is that at that relevant point of time he was not residing in the address stated in the plaint but he was residing at Chennai. The trial Court taking note of the evidence of PW1 and availability of material on record has come to the conclusion that defendant No.1 had no knowledge about the suit being instituted in O.S.No.24/2012. The trial Court based on Exs.P.4 to P8 and Exs.P.10 and P11 has come to the conclusion that the defendant No.1 was not residing in the address given in the cause title to O.S.No.24/2012. The summons issued to the address given in the suit had come back with postal shara ‘door lock’. It is also pertinent to note that Exs.P.4 to P8 reveals that summons issued to the wife of the defendant No.1 in another suit O.S.No.2831/2012 to the same address as given in O.S.No.24/2012, was also returned unserved with postal shara ‘door locked’. The contention of the defendant No.1 that at the relevant point of time he was not residing at Bengaluru and he was residing at Chennai appears to be believable on the materials available on record.
The dispute is with regard to rights of the parties in respect of immovable property. When the rights of the parties are to be decided in respect of immovable property, the same shall be decided normally on merit and rights of the parties should not be deprived in respect of immovable property only on technicalities. The Hon’ble Supreme Court in a case reported in (2019) 7 SCC 359 Robin Thapa Vs. Rohit Dora, at para-7 while dealing with a case wherein application filed under Order 9 Rule 13 of CPC was allowed and exparte decree was set aside, has held as follows;
“7. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The Courts of justice does require that as far as possible adjudication be done on merits.”
The rights of the parties are with regard to immovable property, the Court has to determine their rights on merits.
From the discussion made above, I find no jurisdictional error or material irregularity in the impugned order. Accordingly, the petition is rejected both on merits as well as on I.A.No.1/2019.
Sd/- JUDGE UN