IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.233 OF 2019 BETWEEN SRI. RAMESH.K.SHAH AGED ABOUT 68 YEARS S/O. SRI. K. SHAH R/AT NO.23/26-C, MAIN ROAD, INDUSTRIAL TOWN, RAJAJINAGAR, BANGALORE-560044. ... PETITIONER (BY SRI. SANKET.M.YENAGI, ADVOCATE) AND SRI. SANDHYAG KUMAR AGED ABOUT 48 YEARS S/O. LATE CHOWRAPPA R/AT NO.354/132/7, BEGUR ROAD MASJID ROAD, VIRAT NAGAR, BOMMANAHALLI, WARD NO.14, BANGALORE-68. ... RESPONDENT (BY SRI. LOKESH.R, ADVOCATE) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., 1908 AGAINST THE ORDER DATED 29.03.2019 PASSED IN MISC.NO.25081/2018 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYO HALL, BANGALORE ALLOWING THE PETITION FILED UNDER ORDER IX RULE 13 OF THE CPC., PRAYING THIS COURT TO SET-ASIDE THE ORDER DATED 30.07.2014 IN OS NO.26048/2013 AND TO RESTORE THE CASE AND TO PERMIT THE PETITIONER TO PROCEED WITH THE CASE ON MERITS.
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 CPC, challenging the order dated 29-3-2019 in Misc. No.25081/2018 on the file of the XXVIII Additional City Civil Judge, Bengaluru, by which the petition filed under Order IX Rule 13 of CPC is allowed.
2. The brief facts of the case are that the petitioner herein filed suit for specific performance in O.S.No.26048/2013 against the respondent herein on the basis of agreement of sale dated 20-4-2011 in respect of suit schedule property. The petitioner states that even though the respondent-defendant had the knowledge of the date of hearing of the suit, he failed to appear before the court. As such, the court proceeded further and by judgment and decree dated 30-7-2014 allowed the suit- O.S.No.26048/2013. Subsequently, the petitioner filed Review Petition No.25001/2014, which was also allowed on 20-9-2014 by modifying the judgment and decree passed on 30-7-2014. Thereafter, the respondent filed Misc.No.25081/2018 under Order IX Rule 13 of CPC to restore the suit in O.S.No.26048/2013 along with the petition, the respondent-defendant also filed an application under Section 5 and 14 of the Limitation Act to condone the delay in filing the miscellaneous petition. The petitioner-plaintiff filed objection to the said miscellaneous petition. The parties lead evidence in miscellaneous petition. Thereafter, the trial court allowed the miscellaneous petition by order dated 29-3-2019 and set aside the judgment and decree dated 30-7-2014 passed in O.S.No.26048/2013 and also order dated 20-9-2014 passed in R.P.No.25001/2014 and directed the parties to appear on 07-6-2019 to proceed with the suit. Aggrieved by the same, the petitioner-plaintiff is before this Court in this civil revision petition.
3. Heard the learned counsel for the petitioner and learned counsel for the respondent. Perused the petition papers.
4. Learned counsel for the petitioner-plaintiff submits that the procedure adopted by the trial court in allowing the petition is wholly erroneous and perverse. Further, learned counsel contends that the respondent-defendant has not shown sufficient cause for condonation of delay or placed any evidence to that effect. The cause shown is not bonafide and tainted by malafides. The delay is deliberate and intentional. It is his further submission that the trial Court failed to exercise its discretion judiciously. It is further submitted that Order IX Rule 13 of CPC, permits allowing the petition only if one satisfies the court with regard to his non-appearance on the date of hearing. The respondent-defendant herein failed to satisfy his absence by furnishing appropriate reasons. Learned counsel further submits that the respondent-defendant was avoiding service of notice in the original suit and as such, the hand- summons was ordered. The hand-summons to respondent-defendant was taken on 06-12-2013 and when the petitioner-plaintiff went to serve personally, the respondent-defendant refused to receive the same. The hand-summons was returned with shara ‘refused’ and affidavit to that effect was also filed. Based on the affidavit, the court held that service of summons on respondent-defendant is sufficient and proceeded further. Thereafter, the suit was decreed on 30-7-2014. The petitioner-plaintiff had filed R.P.No.25001/2014 to review the judgment and decree dated 30-7-2014, which was also allowed on 20-9-2014. Thereafter, the petitioner filed Ex.No.25010/2015 and in the execution proceedings also the respondent-defendant refused to accept the court summons. The Hon’ble Court, on 12-2-2015 ordered issuance of notice to the respondent-defendant through “RPAD” which was returned with an endorsement ‘Door locked’. Therefore, he submits that the trial court without appreciating the contentions raised on behalf of the petitioner-plaintiff allowed Misc.No.25081/2018, which is wholly erroneous and perverse. The learned counsel relying on proviso to Order IX Rule 13 of CPC submits that no court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had the notice of the date of hearing. It is his submission that defendant had knowledge of the date of hearing and he deliberately not appeared before the court on the date of hearing i.e., on 13-12-2013. Thus, he prays for allowing the civil revision petition.
5. Per contra, learned counsel for the respondent- defendant submits that the respondent was not served with suit summons and he was able to satisfy the court below, that the court summons was not served on the defendant. The trial court rightly allowed the petition filed under Order IX Rule 13 of CPC. It is his further submission that the suit summons is dated 05-12-2013, but in the affidavit the petitioner-plaintiff has stated that the suit summons was prepared on 04-12-2013 and on the same day he had taken suit summons for service on respondent- defendant, which is impossible. Thus, prayed to dismiss the civil revision petition.
6. The respondent-defendant herein examined himself as PW-1 and marked Exs.P-1 to P-10. The petitioner- plaintiff herein examined himself as RW-1 and also marked Exs.R-1 to R-10(a).
7. The trial Court on appreciating the material placed on record, allowed the petition. The trial court during the course of its order has recorded that the passing of the judgment and decree has came to the knowledge of respondent-defendant only on 25-04-2018. The trial court also noted that the suit summons issued was not served on the defendant. The learned counsel for the petitioner- plaintiff relied on the proviso to Rule 13 of CPC, that the court shall not set aside ex-parte decree merely on the ground that there has been irregularity in service of summons, if it is satisfied that the defendant had notice of the date of hearing and sufficient time was given to appear and answer the petitioner’s claim. But in the present case the petitioner has not established that the respondent had notice of the date of hearing, even though he was not served with the suit summons. It is an admitted fact that suit summons could not be served on the defendant through process server and the plaintiff had taken hand summons, which also could not be served. The plaintiff filed affidavits stating that the defendant refused to receive hand summons. From the material on record it is seen that the hand summons was dated 05-12-2013 and the same was received by plaintiff on 06-12-2013 for service. But it appears that in the affidavit the plaintiff stated that on 04-12-2013 he went to serve hand summons on defendant at his place and defendant refused to receive hand summons. From the dates mentioned and the averments of affidavit would not inspire the confidence in the court. The same would create a doubt in the mind of the court. Moreover, no material or cogent evidence is placed on record to say that even though the defendant refused to receive hand summons, the defendant had the knowledge of the date of hearing. Further, it is also to be noted that after judgment and decree dated 30-7-2014, the petitioner/plaintiff filed Review Petition under Order 47 Rule 1 of CPC. In the said petition no notice was ordered to the defendant. Without notice, the judgment and decree was reviewed. Where the rights of the parties in respect of immovable property is involved, the approach of the court shall be pragmatic and not pedantic. The approach of the court shall be towards rendering substantial justice on merits and not on technicalities.
8. The learned counsel for the petitioner relied on the decision of the Hon’ble Apex Court reported in LAWS (SC) 2008 9 106 in the case of BANK OF INDIA vs. MEHTA BROTHERS in support of his contention that mere irregularity in service of summons would not be sufficient to set aside exparte decree. On going through the said decision it is clear that the same would have no application to the facts of the present case, since the question involved before the Hon’ble Apex Court was that a decree passed in favour of the contesting defendants can be set aside as against a defendant also being part of the same suit, on an application made by him for setting aside exparte decree against him. Further, the learned counsel relied on ILR 2005 KAR 2026 and order dated 02-6-2011 in CRP No.430/2007 to the same effect. But those decisions also would have no application to the facts of the present case as the petitioner/plaintiff failed to establish that the defendant had otherwise knowledge of the proceedings, even though hand summons was alleged to have been refused.
9. The approach of the court mainly would be to advance the cause of justice and not to deny cause of justice on technicalities. The Hon’ble Apex Court in the case of RAJ KISHORE PANDEY vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2009) 2 SCC 692 while dealing with a matter of restoration of petition dismissed for non-prosecution, at paragraph No.8 has held as follows:
“8. In our opinion, whether the applicant has made out sufficient cause or not, in the application filed, the Court is required to look at all the facts pleaded in the application. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the Court in such matters should be to advance the cause of justice and not the cause of technicalities. A case, as far as possible, should be decided on merits and the party should not be deprived to get the case examined on the merits.”
10. The Hon’ble Apex Court while dealing with Order 9 of CPC, in a recent decision in the case of ROBIN THAPA vs. ROHIT DORA (2019) 7 SCC 359, at paragraph No.7 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 cause of justice does require that as far as possible, adjudication be done on merits.”
In view of the principles laid down in the above decisions, I am of the view that the impugned order neither suffers from material or jurisdictional error so as to warrant interference.
Accordingly, the civil revision petition is rejected.
In view of disposal of civil revision petition, I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE SMJ