Allowed

Sri D C Krishna v. Smt Krishnaveni

Karnataka HC4 Mar 2022MFA/8324/2013

Case brief

AI extract

What is this about?

This appeal challenged a trial court order dismissing a petition to set aside an ex parte decree. The High Court allowed the appeal, finding the trial court failed to exercise discretion wisely given unchallenged evidence of non-service and a prior gift deed, setting aside the judgment and restoring the suit.

What did the court decide?

The impugned order setting aside the ex parte decree is set aside; the ex parte judgment is set aside; the suit is restored, and the appellant is permitted to file a written statement.

Sri D C Krishna Vs Smt Krishnaveni — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04^TH 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.8324 OF 2013 (CPC)

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BETWEEN:

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Sri D.C.Krishna, S/o Late Chikkahanumaiah, Aged about 42 years, R/at No.344, 3^rd Cross, 6^th Main, Paravathi Nagar, Laggere, Bengaluru-560058.

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…Appellant

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(By Sri Ramachandra G. Bhat, Advocate)

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AND:

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Smt. Krishnaveni, W/o Srinivasagowda, D/o Late Chikkahanumaiah, Aged about 38 years, R/a No.16, 4^th Cross, Subedar Palya, Yeshwanthpur, Bengaluru-560022.

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…Respondent (Notice to respondent is held sufficient vide order dated 23.08.2018.) This MFA is filed under Order 43 Rule 1(d) of CPC, against the order dated 29.06.2013 passed in Misc.No.290/2011 on the file of the V Additional City Civil Judge, Bengaluru, dismissing the petition filed under Order 9 Rule 13 of CPC, to set aside the judgment and decree dated 01.10.2010 in O.S.No.3774/2008.

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

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JUDGMENT

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This appeal is by the respondent in Misc. No. 290/2011 on the file of V Additional City Civil Judge (CCH-13), Bengaluru City. The events

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giving rise to this appeal are as follows : -

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The respondent herein filed a suit O.S.3774/2008 before the City Civil Judge,

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Bengaluru, against the appellant for partition and separate possession of the property bearing No. 334, site No.46, situated at 3^rd Cross, Parvathi Nagar, Laggere Main Road, Yeshwanthapura Hobli, Bengaluru-560 058. In the said suit, the appellant was the third defendant, the first and second defendants being the mother and sister of the appellant. The respondent is also another sister of the appellant. Since nobody contested the suit, it was decreed ex-parte on 1.3.2010. The appellant thereafter filed a petition under Order IX Rule 13

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CPC seeking to set aside the ex-parte judgment. Since the trial court dismissed the said petition by its order dated 29.6.2013, the appellant has approached this court.

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Heard Sri Ramachandra G Bhat, learned counsel for the appellant. The respondent has not entered appearance in spite of service of notice on her.

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It is argued by Sri Ramachandra G Bhat, learned counsel for the appellant, that actually the appellant did not receive the suit summons. In the suit, the appellant’s address is wrongly shown as No. 334, site No.46, situated at 3^rd Cross, Parvathi Nagar, Laggere Main Road, Yeshwanthapura Hobli, Bengaluru-560 058. Actually the suit summons was not served and this becomes clear from the endorsement made by the process server as ‘door locked’. Then the summons appears to have been sent to the

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appellant by registered post acknowledgment due to the same address. It was also not served on the appellant. The postal endorsement shows that intimation was left at the address by the postman and since it was not claimed within seven days, the postal cover was returned to the sender. On this basis, the trial court held that there was deemed service on the appellant. This resulted in ex-parte judgment being passed. He further submits that defendants 1 and 2 have colluded with plaintiff/respondent and therefore they too did not inform the appellant about the suit being filed. The appellant came to know about the exparte decree on 2.1.2011 when the respondent came to his house with the copy of the decree and demanded for partition. Immediately the appellant made enquiry and obtained certified copy of the judgment and decree and then applied for setting aside the said ex-parte decree. It is his further contention that the suit property was

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the self acquisition of his father who had made a gift of it in favour of the appellant. The respondent was not entitled to claim partition in view of the gift deed. The respondent knew of the gift, in spite of that, she filed suit for partition suppressing the gift deed. If an opportunity is given to the appellant, he will establish his case based on the gift deed and hence this appeal deserves to be allowed. Since there was delay in filing the petition under Order IX Rule 9 CPC, the appellant made an application under section 5 of the Limitation Act.

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The records in O.S.3774/2008 and Misc.

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No. 290/2011 are secured. Perusal of the impugned order shows that the court below decided the application under section 5 of the Limitation Act and also the petition under Order IX Rule 13 CPC together. It has found that the delay in filing the application was not suitably explained

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and therefore the application under section 5 of the Limitation Act was dismissed. Discussing the merits of the Miscellaneous Petition, the court below came to the conclusion that the petition did not deserve to be allowed and hence on merits also the petition was dismissed.

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Since the main contention of the appellant

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is that suit summons was not served on him, it is necessary to examine whether the finding of the trial court on this aspect is correct. In the plaint, the address of defendant No.3, i.e., appellant is shown as resident of No. 334, site No.46, situated at 3^rd Cross, Parvathi Nagar, Laggere Main Road, Yeshwanthapura Hobli, Bengaluru-560 058. The appellant says that he is actually residing in No. 344, 3^rd Cross, VI Main, Parvathi Nagar, Laggere, Bengaluru-58. Suit was filed in respect of a property where the appellant is residing. In the schedule, description given is property bearing

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katha No. 632 (Door No.334), site No.46, East to

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West: 40 feet and North to South: 30 feet, 3^rd Cross, Parvathi Nagar, Laggere Main Road, Yeshwanthapura Hobli, Bengaluru-560 058. The appellant does not dispute the boundaries given in the schedule. The suit summons was sent to the address mentioned in the cause title and the process server’s shara shows that when he went to the said address, he found the door being locked. Summons was sent two times and he returned the summons with the same shara. Then summons was sent by registered post. Address written on the postal cover is No. 334, 3^rd Cross, Parvathi Nagar, Laggere Main Road, Yeshwanthapura Hobli, Bengaluru-560 058. Registered post was not served on the address. Shara found on the postal cover is ‘intimation delivered’. That means the addressee did not go to the post office and claim the postal cover. These are not disputed.

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The trial court finds that the service on

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the appellant is sufficient. The reason given by the trial court is that the appellant did not produce any independent document to show that his correct address is No.344, 3^rd Cross, VI Main, Parvathi Nagar, Laggere, Bengaluru-560 058. The appellant could have produced independent document, but merely for the reason that no independent document was produced, the trial court should not have dislodged the contention of the appellant that summons was not served on him. The trial court proceeded on the basis ‘deemed service on the appellant’. The appellant claims to be residing in the same address. If really summons was taken out to his correct address, it would have been served at least on the adult member of the family if at the time when the process server went there, the appellant was not present in the house. The summons was sent to the appellant through registered post. The

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respondent mentioned the same address given in the cause title while sending the summons through registered post and therefore there was no chance for the appellant coming to know about the intimation left by the post man at the address.

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It is to be noted that the respondent did not contest the miscellaneous petition and that the entire testimony of the appellant remained unchallenged. The suit is for partition; having noticed the actual contention that the petitioner had taken up on the basis of the gift deed, the trial court could have exercised discretion wisely to allow the miscellaneous petition in order to give an opportunity to the appellant to contest the suit. Instead of drawing suitable inferences based on actual endorsements made by the process server on the returned postal cover, the trial court has come to conclusion very mechanically. The case of the respondent would not have suffered in case

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the miscellaneous petition was allowed. The

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appellant could have been subjected to cost to suitably compensate the interest of the respondent. Therefore, it is to be stated that the trial court has not properly exercised its discretion in dismissing the petition made under Order IX Rule 13 CPC. For these reasons, I come to conclusion that this appeal deserves to be allowed. Hence, I pass the following : -

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ORDER

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(i) Appeal is allowed on payment of costs of Rs.10,000/payable to the

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respondent.

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(ii) The order dated 29.6.2013 in Misc. No. 290/2011 on the file of V Additional

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City Civil Judge, Bengaluru City, is set aside. The ex-parte judgment in O.S.3774/2008 is set aside. Consequently suit is restored.

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Appellant is permitted to contest the suit.

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(iii) The appellant shall appear before the trial court on 28.3.2022. The court below shall secure the presence of the respondent/plaintiff by issuing court notice and proceed further.

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(iv) The appellant herein is hereby directed to file written statement on 28.3.2022

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without fail.

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Sd/JUDGE

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ckl/-

Sri D C Krishna v. Smt Krishnaveni

Case brief

What is this about?

What did the court decide?

Sri D C Krishna v. Smt Krishnaveni

Case brief

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