Allowed

Sri.Basavanneyya v. Sri.Gudusab

Karnataka HC13 Oct 2023WP/105916/2016

Case brief

AI extract

What is this about?

The Karnataka High Court in a writ petition quashed an order setting aside an ex-parte decree. The court held that the respondent, who claimed mental imbalance to avoid appearing in court, should have entered the witness box. Failing to do so, along with executing an agreement to sell immediately post-decree, warranted an adverse inference, justifying the restoration of the decree.

What did the court decide?

The order dated 21.06.2016 by the I Additional Senior Civil Judge and CJM, Dharwad setting aside the ex-parte decree is set aside.

Sri.Basavanneyya Vs Sri.Gudusab — Property and Title | Karnataka HC (2023)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶3

DATED THIS THE 13^TH DAY OF OCTOBER, 2023 BEFORE

¶4

THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

¶5

WRIT PETITION NO. 105916 OF 2016

¶6

BETWEEN:

¶7

SRI BASAVANNEYYA S/O. GHATIWALAYYA BAAGLKOTIMATH, AGED ABOUT 69 YEARS, OCC: AGRICULTURE, R/O: MANAKWAD, TQ: NAVALGUND, DIST: DHARWAD.

¶8

PETITIONER

¶9

YASHAVANT NARAYANKAR

¶10

(BY SRI SUNIL S. DESAI, ADVOCATE)

¶11

AND:

¶12

Digitally signed by YASHAVANT NARAYANKAR Date: 2023.11.10 11:30:57 +0530

¶13

SRI GUDUSAB S/O. HAJARESAB SUNKAD, AGE: MAJOR, OCC: COOLIE, R/O: ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD.

¶14

…RESPONDENTS

¶15

(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE)

¶16

THIS WRIT PETITION is FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 21-06-2016 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, DHARWAD SITTING AT NAVALGAGUND IN MISC NO. 71/2008 AS PER ANNEXURE-J.

¶17

THIS PETITION HAVING HEARD AND RESERVED FOR ORDERS ON 10.10.2023 COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

¶18

¶19

ORDER

¶20

Captioned writ petition is filed by the plaintiff

¶21

assailing the order passed by the trial court wherein petition filed by respondent/defendant under Order 9 Rule 13 is entertained by the court below and ex-parte decree passed in O.S.No.79/2005 is set aside and the suit is restored on file. The plaintiff is assailing the said order.

¶22

The facts leading to the case are that, petitioner/plaintiff has instituted a suit for specific performance of contract in O.S.No.79/2005. The respondent/defendant failed to contest the proceedings and he was placed ex-parte. The trial court decreed the suit by judgment and decree dated 17.03.2008 and respondent/defendant was directed to execute the sale deed by receiving balance sale consideration of Rs.30,000/- within three months. Respondent/defendant filed miscellaneous petition seeking setting aside the exparte decree. The first ground of attack by the respondent/defendant is that he has lost mental balance and his son Hajaresab had fallen ill and undergone surgery. Respondent/defendant also claimed that due to

¶23

¶24

mental imbalance, he left Annigeri during 2005 and shifted

¶25

to Chitradurga where he stayed for 2-3 months and thereafter left to Tumkur and stayed about 6 months.

¶26

Respondent/defendant came to know about filing of the suit only in 2008 through his son. Respondent/defendant further claims that he is an illiterate person and the postal shara and the signature on the postal shara is in English and therefore. Specifically claimed that notice was never served on him. The learned Judge has allowed the petition and ex-parte decree passed in O.S.No.79/2005 is set aside and the suit is restored on file. The captioned petition is filed by the petitioner/plaintiff assailing the order in setting aside the ex-parte decree and restoration of the suit on file.

¶27

Heard the learned counsel for the petitioner, learned counsel for the respondent and perused the order passed by the court below. I have given my anxious consideration to the averments made in the petition filed under Order 9 Rule 13.

¶28

¶29

5. Before adverting to the case, I deem it fit to

¶30

cull out paras 2 and 3 of the miscellaneous petition, which reads as under:

¶31

“2. That the Hon’ble court had issued suit summons by RPAD post. The applicant has lost his mental balance due to his family disturbances. His son Hajaresab had fallen ill during 2002, he had to undergo surgery and was under medical treatment. Later the applicant due to his mental imbalance left Annigeri during Jan 2005 to Chitradurga and stayed there for 2 to 3 months and left to Tumkur and stayed there for about 6 months. Thereafter he left do Dandeli and stayed there for a month. Thereafter he had been to Mundagod Tibetian camp and stayed there till very recently.

¶32

3. That the applicant came to Annigeri in the last week of October 2008 and came to know by his son that the opponent had filed a suit against the applicant. Immediately the applicant came to Dharwad on 24.10.2008 and came to know through the advocate the opponent had filed a suit for specific performance and obtained fraudulent and illegal decree. The certified copy was applied on the same day and obtained on the same day.”

¶33

The ex-parte decree is passed on 17.03.2008

¶34

Respondent/defendant has filed petition on 03.11.2008. Respondent/defendant has executed an agreement to sell on 26.08.2008 in favour of one Shrishailappa Ningappa

¶35

¶36

Alur. In the present case on hand respondent/defendant

¶37

has filed petition seeking setting aside the ex-parte decree on the ground that he could not attend the court, as he was suffering from mental ill-health. The above culled out paras of the petition gives an indication that restoration is sought on the ground that he was suffering from mental ill-health and he was not present at Annigeri at the relevant point of time. Having claimed that he has suffering from mental ill-health, this petition is filed by the respondent/defendant himself. However, respondent/ defendant has not chosen to mount the witness box. He deliberately examines his son. Petitioner/plaintiff has succeeded in eliciting in the cross-examination of the respondent’s son who is examined as P.W.1 in the miscellaneous petition. The relevant portion is culled out, which reads as under:

¶38

“£À£Àß vÀAzÉ JzÀÄÝ NqÁqÀÄªÀ ¹ÜwAiÀÄ°èzÁÝgÉ J£ÀÄßªÀÅzÀÄ ¤d. £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß vÀAzÉ MnÖUÉ ªÁ¸À ªÀiÁqÀÄvÉÛÃªÉ. £À£Àß vÀAzÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ PÀgÉzÀÄPÉÆAqÀÄ §AzÀgÉ ¸ÁQë ºÉÃ¼À§®ègÀÄ J£ÀÄßªÀÅzÀÄ ¤d.”

¶39

On reading of the above elicited crossexamination, it clearly reveals that respondent/defendant

¶40

¶41

is found to be healthy and son admits that he is capable of deposing before the court.

¶42

Let me examine the other significant details

¶43

which would have bearing on the decision rendered by the court on the miscellaneous petition filed under Order 9 Rule 13. Petitioner/plaintiff claims that respondent/ defendant has executed agreement to sell on 06.04.2002, suit is filed on 04.04.2005 and ex-parte decree is passed on 17.03.2008. Petitioner has filed execution petition and sale deed is executed through Court Commissioner on 16.09.2008. The petitioner/plaintiff in turn has alienated the suit property on 20.03.2009.

¶44

Respondent/defendant has executed registered

¶45

agreement to sell on 26.08.2008 and ex-parte decree is passed on 17.03.2008 and within a span of 9 days, defendant has executed registered agreement to sell on 26.08.2008. The

¶46

respondent/defendant who is found to be wandering from village to village since 2002 on account of mental illness, suddenly returns to Annigeri in the last week of October,

¶47

¶48

2008 and straightaway executed registered agreement to sell. On examination of these significant details, this court is more than satisfied that averments made in the miscellaneous petition lack bonafides and the same are tainted with malafides. In all probability respondent/defendant was sitting on the fence and watching the proceedings.

¶49

The impugned order passed by the learned Judge needs to be tested, as learned Judge has ignored the fact that respondent/defendant has not stepped into the witness box. It is trite law that there is no inherent power to set aside an ex-parte decree where the case does not fall within Order 9 Rule 13. There is practical unanimity among the courts that if no case is made out under Order 9 Rule 13, the ex-parte decree should not be set aside by resorting to inherited power under Section 151.

¶50

Though burden is on the petitioner/plaintiff to substantiate that summons was duly served either on the respondent/defendant or his family member, the said

¶51

¶52

question does not arise for consideration in the present case on hand. Respondent/defendant having filed petition under Order 9 Rule 13 has not chosen to enter the witness box. If the respondent/defendant has not chosen to enter the witness box, there is absolutely no material on record to substantiate his case which would have warranted interference at the hands of the court entertaining a miscellaneous petition under Order 9 Rule 13.

¶53

The second proviso to Rule has been added newly in order to ensure that court should not set aside an ex-parte decree merely on the ground of irregularity in service of summons. If respondent/defendant has not entered the witness box, the petitioner/plaintiff is virtually denied an opportunity to counter the respondent/defendant’s claim about his mental illness and service of summons.

¶54

The conduct of respondent/defendant needs to be gathered from surrounding circumstances. Having regard to the fact that he has executed agreement to sell immediately after passing of an ex-parte decree in all

¶55

¶56

probability will only lead to one inference that respondent/defendant was aware of pendency of the suit. Immediately after ex-parte decree is passed, has again meddled with the property and tried to create third party rights.

¶57

The moot question that has gone unnoticed at the hands of the court below which entertained the petition under Order 9 Rule 13 is that respondent/defendant has abstained from entering into the witness box having raised several contentions in the miscellaneous petition. If a petition is filed under Order 9 Rule 13, the entire edifice on which the ex-parte decree is sought to be set at naught is on the ground that he is suffering from mental illness and was not at the village at the relevant date on which the petitioner/plaintiff is asserting transaction styled as agreement to sell. Therefore it was incumbent on the part of respondent/defendant to enter into the witness box. The court has not taken note of these aspects which goes to root of the case. Respondent/defendant has not entered

¶58

10 -

¶59

the witness box and has strangely declined to state his case on oath and by doing so has deprived the petitioner/plaintiff from cross-examining. Therefore, presumption would arise under Section 114 Ill.(g) of evidence Act that the case set up by respondent/defendant is not correct. It is equally trite law that when the material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him.

¶60

This court is akin to the well-settled principle of

¶61

law on the liberal approach in restoration of suits when a petition is filed under Order 9 Rule 13. But for a court to exercise discretion, there must be some justification that would impress as to the bonafides of the applicant seeking setting aside the ex-parte decree under Order 9 Rule 13. A litigant whose prayer is based on incorrect premise that is far from truth, is not expected to deserve discretion to be exercised in his favour. If this permitted, it would not only disturb the sanctity of a judgment but also disturb the smooth running of the justice delivery system. A liberal

¶62

11 -

¶63

interpretation to ensure that substantial justice is done, so long as negligence, inaction or lack of bona fides are not imputed to the party concerned.

¶64

Had the respondent/defendant let in evidence by examining himself, the onus would have shifted on the petitioner/plaintiff to substantiate that summons was duly served either on respondent/defendant or his family members. Post 1976 amendment, the summons can be served on the family members which also includes female member of the family. The court below has virtually set aside the ex-parte decree only on the premise that the signature found on the postal share is in English and Respondent/defendant being illiterate could not have affixed his signature on the postal shara. Relying only on this piece of evidence, the court below has set at naught a well considered judgment though ex-parte.

¶65

The court below erred in exercising discretion without taking note of the fact that respondent/defendant has again entered into an agreement to sell immediately after passing of ex-parte decree, which is taken note of by

¶66

12 -

¶67

this court in earlier paragraphs. Therefore, I am of the view that the order passed by the court below in setting aside the ex-parte decree is not sustainable and liable to be set aside. For the reasons stated supra, I pass the following:

¶68

ORDER

¶69

i) The writ petition is allowed.

¶70

ii) The order dated 21.06.2016 passed by the I Additional Senior Civil Judge and CJM, Dharwad sitting at Navalagund in Misc.No.71/2008 is set aside.

¶71

MBS

¶72

Sd/JUDGE

Sri.Basavanneyya v. Sri.Gudusab

Case brief

What is this about?

What did the court decide?

Sri.Basavanneyya v. Sri.Gudusab

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt.Lakshmavva W/O Hanamappa Bangari Vs Shri.Basavaraj @ Basappa S/O Hanamappa Bangari

Tuljaram Singh Vs the Karnataka Industrial Area

P. Chinna Duragappa S/O P. Ankalappa, Since Deceased R/by His Lrs. Vs the State of Karnataka

Ningappa S/O Siddramappa Byadagi Vs Union of India, through the Secretary

M/S Bismilla Earth Movers Vs State of Karnataka

Venkatesh Vittalapur Son of Late Bheemanna Vs the Chief Managaer and Authorised Officer