IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.8113/2014 BETWEEN:
SRI M.NARAYANA S/O. SRI MUNIYAPPA SINCE DEAD BY LRS.
1(a) TULASAMMA W/O. LATE M.NARAYANA AGED ABOUT 50 YEARS 1(b) SUNITHA.N.
D/O. LATE M.NARAYANA W/O.KESHAVA AGED ABOUT 26 YEARS BOTH ARE R/AT NO.510 MURGAN BUILDING, AVENUE ROAD BENGALURU- 560 002. … APPELLANTS (BY SRI S.GUNASHEKAR FOR SRI D.N.MANJUNATH, ADVOCATES) AND:
SRI NANJUNDA SWAMY S/O. SRI NANJAIAH AGED ABOUT 44 YEARS R/AT NO.10/2, FIRST MAIN ‘C’ STREET, NEAR GUDDADHAHALLY MYSURU ROAD, BENGALURU …RESPONDENT (BY SRI VASANTHAPPA, ADVOCATE) THIS MFA IS FILED UNDER ORDER XLIII RULE 1(d) OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE ORDER DATED 03.11.2014 PASSED BY THE XXXI ADDITIONAL CITY CIVIL & SESSIONS JUDGE (CCH-14), BENGALURU ETC.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T “Whether service of summons on the appellant in O.S.No.3764/2009 as required under Order V of the Code of Civil Procedure, 1908 (‘CPC’ for short) was proved?” is the question involved in this case.
2. Respondent-plaintiff filed O.S.No.3764/2009 against the appellant before XXXI Additional City Civil Judge, Bengaluru (CCH-14) for recovery of Rs.1,41,875/- with interest thereon at 18% per annum. He contended that he was residing in the house of the appellant on lease basis, even after he vacating the premises, the appellant failed to pay the security deposit of Rs.1,25,000/- with accrued interest etc.
3. The aforesaid suit came to be decreed ex parte.
Appellant filed Misc.No.425/2012 claiming that summons in O.S.No.3764/2009 was not served on him, therefore, he was not able to appear before the Court and contest the suit. Hence, he sought for setting aside the ex parte judgment and decree passed in O.S.No.3764/2009.
4. Respondent contested the said petition. In support of his case, appellant got examined himself as PW.1 and got marked Ex.P1 and Ex.P2. Respondent was examined as RW.1 and he got marked voter I.D. and ration card as Ex.R1 and Ex.R2.
5. The trial Court after hearing the parties, dismissed the petition of the appellant under Order IX Rule 13 of CPC holding that the address of the appellant given in O.S.No.3764/2009 as well as Misc. No.425/2012 are one and the same and the appellant has received notice in Misc.No.425/2012, but claims that summons in O.S.No.3764/2009 was not served on him which is unacceptable. The trial Court further held that the appellant did not impute any malpractice to the post office.
6. Aggrieved by the said order, the appellant has filed this appeal. Pending this appeal, the original defendant died and his legal representatives were permitted to come on record and prosecute the matter.
7. Order IX Rule 13 of CPC contemplates setting aside the ex parte decrees under the following circumstances:
i) Where defendant was not served with suit summons;
ii) Where defendant satisfies that despite service of summons, defendant was prevented by any sufficient cause from appearing before the Court when the suit was called for hearing.
8. In the case on hand, appellant-defendant contended that summons was not served on him. Under such circumstance, the Court expected to satisfy itself that summons was duly served. In the order sheet dated 22.09.2010 in O.S.No.3746/2009 there are two endorsements of the purported concerned officials of the Court to the effect that ‘received endorsement (1) put up in file’.
9. Despite that endorsement on 22.09.2010, the Court posted the matter awaiting the summons/steps of the defendant. On 21.10.2010, the trial Court recorded as follows:
“Defendant absent. No representation. Placed ex parte. For plaintiff’s evidence 28.11.2010.
Sd/”
Thus it is clear that the trial Court did not satisfy itself about due service of summons on the appellant-defendant.
10. In Misc.No.425/2012 though appellant denied service on him, respondent-plaintiff did not confront the alleged postal acknowledgement to the defendant to claim that postal acknowledgement was signed by him. Neither the plaintiff did get the alleged postal acknowledgement cards marked nor the trial Court tried to admit them in evidence.
11. Order V Rule 9(5) of CPC states that when an acknowledgement or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back in the Court that can be held as sufficient service.
12. In the case on hand, first of all, no such postal acknowledgement was admitted in evidence. The two acknowledgments available in records of O.S.No.3746/2009 do not bear signatures of the defendant and purportedly bear the signatures of one Tulasi and Sunitha. It was not even suggested to the defendant that the said Tulasi or Sunitha were his agents or the adult members of his family. Despite that, the trial Court holds that he was served, on the ground that the address given in the suit and Misc. case were one and the same and the defendant was served in the Misc. case on the same address.
13. At the cost of repetition, it has to be held that the trial Court has not recorded its satisfaction regarding due service of summons. Under these circumstances, it cannot be held that service on defendant was ‘sufficient service’. Therefore, the impugned order of dismissal of the petition in Misc.No.425/2012 is unsustainable in law. Therefore, the petition is allowed.
14. The order dated 03.11.2014 in Misc.No.425/2012 is hereby set aside. The petition of the appellant in Misc.No.425/2012 under Order IX rule 13 of CPC is hereby allowed.
The ex parte judgment in O.S.No.3746/2009 passed by the XXXI Additional City Civil Judge, Bengaluru (CCH- 14) is hereby set aside.
Suit was of the year 2009. Therefore, to avoid further delay, parties are hereby directed to appear before the trial Court on 31.10.2019.
Respondent-Plaintiff is permitted to implead the present appellant Nos.1(a) and 1(b) as defendants in the suit. Plaintiff shall serve copies and other relevant documents on them. On such service of copies, they shall file their written statement within two weeks.
Then the trial Court shall frame issues, record evidence and dispose of the suit as expeditiously as possible and at any rate within six months from the date of filing of the written statement.
Registry shall transmit the LCRs to the trial Court forthwith.
KSR Sd/- JUDGE