IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO. 3461 OF 2017 (CPC) BETWEEN Kuppamma, W/o Annamalai, Since dead rep. by her LR’s 1(a) Kuppaswamy, S/o Annamalai, Aged about 58 years, 1(b) Armugam, S/o Annamalai, Aged about 57 years, 1(c) Jayalalitha, D/o Annamalai, Aged about 44 years.
All are children of Late Kuppamma and Annamalai. R/at No. 142 (New No.96), 7th Cross, 7th Main, “Sri Venkateshwara Harijan Yuvaka Seva Sangha”, Sriramapuram, Bangalore – 560 021.
... Appellants (By Sri. Krishna S.B., Advocate) AND 1. Smt. Papathi, W/o Late Marymutthu, Aged about 69 years, R/at 86/97, 7th Cross, 7th Main, “Sri Venkateshwara Harijan Yuvaka Seva Sangha”, Sriramapuram, Bangalore – 560 021.
2. Smt. Shanthi, W/o Narayan @ Maatagara, Aged about 48 years, R/at 87, 7th Cross, 7th Main, “Sri Venkateshwara Harijan Yuvaka Seva Sangha”, Sriramapuram, Bangalore – 560 021.
... Respondents (By Sri. Adinarayan, Advocate for R1.
R2 – served.) This MFA is filed under Order 43 Rule 1(d) of CPC, 1908 against the order dated 16.03.2016 passed in Misc. No. 796/2014 on the file of the XII Additional City Civil and Sessions Judge (CCH-No. 27), Bengaluru dismissing petition filed under Order IX Rule 13 of CPC.
This MFA coming on for Admission, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. This appeal has been preferred by the appellant namely Kuppamma, W/o. Annamalai, since dead represented by her legal representatives 1(a) to 1(c), who are the children of late Kuppamma challenging the order passed in Misc.No.796/2014 dismissing I.A.I as well as the Misc. petition on merits. The said Misc. petition was filed by the LRs of the deceased Kuppamma under Order IX Rule 13 CPC seeking to set aside the exparte judgment in O.S.No.7123/2010 dated 10.07.2013 and to permit the petitioner to contest the suit.
The Respondent No.1 / plaintiff Smt. Papathi, W/o. late Marymutthu had filed the said O.S.No.7123/2010 against the defendants Shanthi and others. Smt. Kuppamma was arraigned as Defendant No.3 in the said suit. The suit was filed by the plaintiff against the defendants contending that she is the absolute owner of property bearing Site No.86 (Old No.97), PID NO.24-39-86 as described in the schedule and so also rough sketch annexed to the plaint. The plaintiff is in possession of the suit schedule property from more than last 60 years. Moreover, the plaintiff is in possession of the larger extent area compared with the others. It was contended in the said suit filed by the plaintiff against the defendants in respect of the suit schedule properties that the BMP had made a Special Resolution No.76/371 on 27.03.1998 and got it approved from the Government on 24.09.2001. In the said suit, plaintiff sought for permanent injunction restraining the defendants and their men and agents, etc., acting under them from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property in any manner and consequential relief of mandatory injunction directing the defendants 1 to 3 to remove the foundation and structures made on the suit schedule property belonging to the plaintiff.
In response to the suit summons, Defendants 1 and 2 had appeared through their counsel and Defendant No.3 Kuppamma had remained absent and hence, was placed exparte. Though Defendants 1 and 2 had put in their appearance through counsel, but they did not file any written statement. The plaintiff in order to substantiate her case against the defendants in respect of the suit schedule property, got examined her GPA holder as PW-1 and so also adduced documentary evidence as per Exhibits P1 to P12. However, Defendants 1 and 2 had not challenged either the oral or the documentary evidence adduced by the plaintiff. Based upon the evidence of the GPA holder PW-1, the suit of the plaintiff was decreed in part against Defendants 1 and 3 whereby Defendants 1 and 3 were restrained by way of permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff depicted therein. Further, Defendants 1 and 3 were directed to remove the foundation and structures made on the suit schedule property as shown in the sketch annexed to the report of the Court Commissioner and to hand over vacant possession to the plaintiff within three months from the date of the order in O.S.No.7123/2010.
The said judgment and decree passed by the court below in O.S.No.7123/2010 was challenged by the legal representatives of Kuppamma before the XII Addl. City Civil and Sessions Judge, Bengaluru in Misc.No.796/2014 by filing an application under Order IX Rule 13 CPC. The said I.A. for condonation of delay came to be dismissed, consequently dismissing the Misc.No.796/2014 as well by its order dated 16.03.2017. Hence, the present appeal has been preferred by the appellants who are the legal representatives of Kuppamma, seeking to set aside the order dated 16.03.2017 passed in Misc.Petition No.796/2014.
3. The learned counsel for the appellants has taken me through the records in O.S.No.7123/2010 to contend that the fact that the Court Commissioner / ADLR visiting the spot, was not within the knowledge of Kuppamma. Though her son Armugham had subscribed his signature to evidence the fact that the Commissioner had visited the spot, however, Kuppamma was not aware of it. Moreover, that her son Armugham was not aware that the Commissioner’s report was regarding his mother’s case and he was also not a party to the suit. He had only participated as a witness. The position of law is that the party seeking to set aside an exparte judgment, must have the knowledge of passing of the judgment and knowledge about the pendency of the suit is not enough. However, Kuppamma did not have knowledge about a judgment having been passed in the suit.
Further, the Trial Court had dismissed the application for condonation of delay on the ground that summons by way of affixture and paper publication were taken to Kuppamma. However, Kuppamma aged about 75 years and an illiterate person, was unaware of any affixture or paper publication. This contention was also not considered by the Trial Court while passing the impugned order.
Further, the learned counsel for the appellants has relied on a decision of the Apex Court in AIR 1987 SC 1353 which states that the courts should adopt a liberal approach while dealing with the application for condonation of delay, since a litigant does not benefit by approaching the court late and there is no presumption that the delay has been occasioned deliberately. Hence, on all these grounds, the learned counsel for the appellants contends that the impugned order dated 16.03.2016 passed in Misc. No.796/2014 vide Annexure-“A”, be set aside and consequently the appeal be allowed.
4. Per contra, learned counsel for the Respondent No.1 has filed his statement of objections contending that the appeal itself is not maintainable either in law or on facts and hence, requires to be dismissed in limine.
He submits that after filing the suit, the court below had in fact issued notice to all the defendants. Though other defendants appeared before the court below and contested the suit, the present appellant failed to appear before the court below and hence she was placed exparte. Thereby after completion of all the proceedings, the suit was decreed in favour of Respondent No.1 and the appellant was directed to demolish the encroached area and hand over vacant possession of the same. Since the appellant failed to comply with the said order, Respondent No.1 was constrained to file an Execution Petition in Ex.No.3231/2013 to implement the judgment and decree passed in O.S.No.7123/2010. It is thereafter that the appellant had filed Misc.No.796/2010 praying to set aside the exparte order dated 10.07.2013 passed in O.S.No.7123/2010 stating that notice was not at all served on her.
But however, it is to be noticed that the address furnished by the appellant in the Misc.No.796/2010 and that given by Respondent No.1 in O.S.No.7123/2010 is one and the same. Hence, it cannot be believed that notice was not served on her. Being well aware that court proceedings were going on, she had intentionally managed with the shara ‘door locked’. Hence, she having been placed exparte by the court below, is very well justified.
Moreover, when the Court Commissioner visited the suit schedule property on 26.12.2012 and measured the same, the appellant No.1(b) – Kuppamma’s son, was very much present at the spot and had also affixed his signature to the Commissioner’s report. Hence, it is clear that the appellants were very well aware about the pendency of the suit in O.S.No.7123/2010 but failed to appear before court during the pendency of the said suit.
Hence, the learned counsel for Respondent No.1 submits that in spite of sufficient opportunity, the appellants have failed to contest the suit and after the judgment and decree, they had filed a Misc.Petition stating that they had no knowledge of the pendency of the said suit. Hence, the court below has rightly dismissed the Misc.petition filed by the appellants. Hence, he submits that the said judgment needs no interference in this appeal.
5. Having heard the learned counsel for the parties, it is to be noticed that the Kuppamma and her legal representatives / appellants were very well aware of the pending suit. Knowing fully well that the suit was pending, she had evaded from receiving notice of the said suit. After disposal of the suit, though the Court Commissioner had visited her house to measure the property and in spite of her son Armugham being present in the spot and affixing his signature, it was not right on her part to have contended that she was not at all aware of any of the court proceedings. After keeping quiet all the while during the pendency of the suit and suddenly waking up from slumber after Execution Petition was filed, does not auger well to this court. Hence, in my opinion, the XII Addl. City Civil and Sessions Judge, Bengaluru, has rightly dismissed the Misc.No.796/2014 as well as I.A.I for condonation of delay. Hence, I do not find any ground for interference in the order passed by the court below. Therefore, this appeal deserves to be dismissed as being devoid of merits. Accordingly, I proceed to pass the following:
O R D E R The appeal filed by the appellants is hereby dismissed. Consequently, the order dated 16.03.2016 passed by the court below in Misc.No.796/2014 dismissing the petition filed by the LRs of Kuppamma. is hereby confirmed.
As a consequence, I.As I and 2 of 2018 are dismissed as they do not survive for consideration.
Sd/- JUDGE KS