Allowed

Sri T G Babu v. Sri a Bhaskar

Karnataka HC2 Mar 2022MFA/1508/2022

Case brief

AI extract

What is this about?

The High Court allowed the appeal and allowed the underlying O.9.R.13 application, setting aside the ex parte decree and restoring the suit to the trial court after finding the trial court hurried the disposal.

What did the court decide?

The appeal was allowed on costs of Rs.20,000/- payable by the appellant. The ex parte judgment and decree in O.S.No.3602/2021 were set aside and the suit restored to the trial court.

Sri T G Babu Vs Sri a Bhaskar — Execution and Attachment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02^ND DAY OF MARCH, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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MFA NO.1508 OF 2022 (CPC)

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BETWEEN:

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Sri T.G.Babu, S/o Late Sri T.R.Gopal, Aged 46 years, Residing at No.735, 2^nd Floor, 1^st ‘F’ Cross Road, 15^th Main Road, Basaveshwaranagar, 4^th Block, 3^rd Stage, West of Chord Road, Bengaluru.

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…Appellant (By Sri Sunil Seshagiri Rao, Advocate)

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AND:

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Sri A.Bhaskar, S/o Sri Appaji, Aged 38 years, Residing at No.57, 3^rd Cross, MG Road, Near Shankara Mata, West of Chord Road, Bengaluru-5600896.

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…Respondent (By Sri Rajesh A, Advocate)

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This MFA is filed under Order 43 Rule 1(d) of CPC, against the order dated 03.02.2022 passed in Misc.No.430/2021 on the file of the LXVI Additional City Civil and Sessions Judge, Bengaluru CCH-67, dismissing the petition filed under Order 9 Rule 13 read with Section 151 of CPC.

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This MFA coming on for orders this day, the Court delivered the following:

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JUDGMENT

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Heard Sri. Sunil Rao, counsel appearing for

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Sri. T. Seshagiri Rao for the appellant and Sri. Rajesh A., counsel for the respondent.

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This appeal is preferred challenging the order dated 3.2.2022 passed in Misc.P.

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No.430/2021 on the file of LXVI Addl. City Civil and Sessions Judge (CCH-67), Bengaluru.

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The appellant was the defendant in O.S.No.3602/2021 instituted by the respondent herein for possession of suit property based on an oral lease. The suit was decreed as the petitioner being the defendant did not contest the suit. Therefore an application under Order 9 Rule 13 CPC was made before the court for setting aside the exparte judgment. Since the application under Order 9 Rule 13 CPC is dismissed, the appellant is before this court.

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Learned counsel for the appellant submits that the petitioner received the suit summons on 31.7.2021. He was supposed to appear before the court on 4.8.2021. Because of some restrictions due to COVID, the petitioner could not engage a lawyer and thereby he could not appear before the court. For this reason the suit came to be decreed on 1.9.2021. Learned counsel for the appellant submits that the trial court disposed of the suit hurriedly without giving the petitioner reasonable opportunity of defending himself. If the appeal is allowed and case is remanded to the trial court, the petitioner will bind himself for disposal of the suit on merits itself within a reasonable time.

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Counsel for the respondent submits that in the miscellaneous petition filed by the petitioner under Order 9 Rule 13 CPC, the petitioner clearly stated that there was collusion between the plaintiff and the process server to see that the

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summons was not served on him. But when the enquiry was held in the miscellaneous case, the petitioner clearly admitted that the suit summons was served on him. Noticing this submission, miscellaneous case came to be dismissed. Now altogether a different case is projected. Therefore there are no grounds to allow the appeal.

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Having heard both sides, it may be stated that though the learned Judge has observed in Para 21 of the impugned order that there was due service of summons on the petitioner, yet if the date on which the suit was disposed of is seen, it appears that the trial court has unnecessarily hurried to dispose of the suit. It may be true that the petitioner has taken a ground in the miscellaneous case that there was collusion between the plaintiff and the process server. Whatever may be the ground taken by the petitioner in his petition under Order 9 Rule 13

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CPC, having regard to the fact that the summons was served on the petitioner on 31.7.2021 and he was supposed to appear on 4.8.2021, the Court below could have exercised discretion to set aside the exparte judgment by subjecting the petitioner to cost. Therefore to meet the ends of justice, this appeal may be allowed. Hence the following:

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ORDER

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Appeal is allowed on cost of Rs.20,000/-

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payable by the petitioner to the respondent.

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The order dated 3.2.2022 in Misc. Petition

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430/2021 is set aside. The said petition is allowed. Consequently the exparte judgment and decree in O.S.No.3602/2021 is set aside. The suit is restored to file of LXVI Addl. City Civil and Sessions Judge, Bengaluru.

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The petitioner and the respondent shall appear before the trial court on 21.3.2022. Payment of cost by the petitioner to the

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respondent is a condition precedent for contesting the suit. On 21.3.2022, the petitioner shall also file his written statement. The plaintiff and the defendant shall co-operate with the court for expeditious disposal of the suit.

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Sd/JUDGE

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Sri T G Babu v. Sri a Bhaskar

Case brief

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Sri T G Babu v. Sri a Bhaskar

Case brief

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