Appeal against dismissal of a petition under Order 9 Rule 13 CPC to set aside an ex parte specific performance decree. The High Court held that defendant No.1 had knowledge, as his brother shared the same address, accepted summons, and their common counsel filed a memo of appearance on his behalf; the appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7688 OF 2016 (CPC)
BETWEEN:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
BOTH ARE RESIDING AT HOSAHUNDI VILLAGE, SRI. GANAPATHI SACHIDANANDA ASHRAMA POST, KASABA HOBLI, MYSURU-570 028.
…APPELLANTS
(BY SRI C. SHANKAR REDDY, ADVOCATE)
AND:
RESPONDENTS NO.2 TO 5 ARE RESIDING AT HOSAHUNDI VILLAGE, KASABA HOBLI, MYSURU-570 028.
…RESPONDENTS
(BY SRI V.M.PRASAD, ADVOCATE FOR R1; SRI V.R. BALARAJ, ADVOCATE FOR R4 AND R5; R2 AND R3 ARE SERVED, BUT UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 24.02.2016 PASSED IN MIS.NO.77/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MYSURU, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission today. Heard the
learned counsel for the appellants, the learned counsel for respondent No.1 and the learned counsel for the respondent Nos.4 and 5.
24.02.2016 passed in Misc.No.77/2010, on the file of the Principal Senior civil Judge, Mysuru, dismissing the petition filed under Order 9 Rule 13 read with Section 151 of CPC praying the Court to set aside the judgment and decree passed in O.S.No.150/2007 dated 27.02.2009.
plaintiff/respondent before the Trial Court is that the plaintiff had filed O.S.No.150/2007 seeking the relief of specific performance of contract contending that there was a sale agreement executed by the defendants and their mother agreeing to sell the property for a valuable sale consideration of Rs.15 lakhs dated 10.04.2006. On the date of the agreement, he received an earnest money of Rs.2 lakhs and an additional amount of Rs.2 lakh on 16.05.2006 and on 28.06.2006, another Rs.1 lakh was received, in total Rs.5 lakhs was received. Thereafter, they did not come forward to execute the sale deed and hence the suit was filed for the relief of specific performance.
defendant Nos.1 and 2. The suit summons was served
against defendant No.2 and the notice was not served against
defendant No.1 and the same was returned with an endorsement that defendant No.2 did not disclose the address
of defendant No.1. The defendant No.2 engaged a counsel and the very same counsel had filed a memo of undertaking
before the Trial Court on behalf of defendant No.1 also. The defendant No.1 though appeared through the counsel, did not choose to file any written statement and though defendant No.1 undertook to appear before the Court, did not file the vakalath through advocate and also not contested the matter.
Thereafter, the Trial Court proceeded to record the evidence of P.W.1 and two more witnesses as P.W.2 and P.W.3 and marked the documents at Exs.P.1 to 10 and closed the
evidence. The defendants throughout remained absent inspite of defendant No.2 represented through the counsel and undertaken to appear on behalf of defendant No.1 also. The Trial Court having taken note of the material on record, framed the points as to whether the defendants being the absolute owners of the suit property have entered into agreement with the plaintiff executed the agreement of sale by receiving Rs.5 lakhs and whether the plaintiff is entitled for the relief of specific performance of contract. The Trial Court
NC: 2024:KHC:8895 MFA No. 7688 of 2016
granted the relief and directed the defendants to execute the sale deed in terms of the judgment dated 27.02.2009.
appearance before the Trial Court on the very same day and
the same shows that the petitioners were aware of the proceedings. The address of both the defendants is shown as Hosahundi Village. In this petition, the petitioners have given the same address as Hosahundi Village. In the crossexamination, P.W.1 has stated that there was no ill-will between her husband and the defendant No.2. She has stated that the final rites of her husband were done in the house of defendant No.2. Having taken note of the said material on record, the Trial Court comes to the conclusion that it is the burden on the petitioners to prove that they were not aware of the proceedings. The Trial Court comes to the conclusion that even though they were aware of the same, they did not choose to participate in the proceedings and also taken note of the fact that the suit was for specific performance of contract contending that the petitioner No.1, defendant No.2 and their mother had jointly executed the agreement of sale. Hence, the Trial Court comes to the conclusion that it cannot be believed that the petitioners were not aware of the proceedings and dismissed the same. Hence, the present appeal is filed before this Court.
NC: 2024:KHC:8895 MFA No. 7688 of 2016
vehemently contend that no notice has been served on the husband of petitioner No.1 and father of petitioner No.2. The Trial Court committed an error in granting the relief of specific performance of contract. The Trial Court ought to have restricted itself to examine as to whether there is sufficient cause to condone the delay and whether the requirements of Order 9 Rule 13 of CPC have been complied with or not and instead of examining this points, the Trial Court has proceeded to examine the case of the parties on merits. The very approach of the Trial Court is erroneous and when the reasons are given before the Trial Court that no such notice was served on the husband of petitioner No.1 and also the father of petitioner No.2, the same ought to have been considered by the Trial Court. The Trial Court failed to take note of the fact that R.W.1 had no personal knowledge and he was minor at the time of filing the suit and ought to have drawn adverse inference against respondent No.3 for not stepping into the witness box and defending her statement of objections and further admissions that no notice were sent to
the matrimonial place of residence, that too when the knowledge of the marriage of the appellant was available to
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the respondent Nos.1 to 3. The learned counsel would vehemently contend that there is no any service of summons against the defendants and the same has not been considered by the Trial Court.
judgment and decree. The learned counsel referring the copy of the summons and the order sheet would contend that when there is no proper service, the Trial Court ought not to have decreed the suit and ought not to have dismissed the petition.
the said Cheluvaraju passed away and his last rites were made in the house of defendant No.2. The death certificate discloses the place of death as Hosahundi village i.e., the address mentioned in the suit. There is a proper service to the family members i.e., the brother and also the lawyer had undertaken to appear on his behalf. When such being the case, the said fact is taken note of by the Trial Court in dismissing the petition.
NC: 2024:KHC:8895 MFA No. 7688 of 2016
important to note that the very same counsel had filed a memo undertaking to file vakalath for defendant No.1 also. The certified copy is also placed before the Court with regard to the same before the Trial Court on the very same day. The counsel represented on behalf of defendant No.1 by filing the memo and hence, it is clear that defendant No.1 was also having the knowledge of the proceedings initiated against him and other defendant i.e., defendant No.2. It is not in dispute that defendant Nos.1 and 2 are brothers and it is also not in dispute that defendant No.2 had taken the notice of the suit summons and the counsel who had filed the vakalath on behalf of defendant No.2, had filed the memo of appearance for defendant No.1 and took time to file vakalath as well as
the written statement. Both of them have not contested the matter. The defendant No.2 also not contested the matter by filing the written statement.
and their counsel were absent and hence the Trial Court has
taken note of that the written statement and objections not filed and posted the matter for plaintiff’s evidence on 26.10.2007. It is important to note that the case was adjourned for evidence on 25.01.2008. On 25.01.2008, again
the plaintiff filed affidavit and marking of documents the matter was adjourned to 20.03.2008. On 20.03.2008, the matter was adjourned at the request of learned counsel for the plaintiff and posted the matter to 18.07.2008 and ultimately on 18.07.2008, P.W.1 was examined and Exs.P.1 to
5 were marked and the matter was posted for further evidence of P.W.1. On 21.08.2008, an application was filed under Order 7 Rule 14 of CPC with documents and the same was allowed. The defendant No.1 was further examined and Exs.P.6 to 8 were marked and posted for further plaintiff’s evidence on 21.10.2008. That on 21.10.2008, an affidavit was filed and an application under Order 16 Rules 1 and 2 of CPC was also filed. The counsel for the defendants was absent and the said application was allowed. P.W.2 and P.W.3 were examined and the case was posted for defendants’ evidence even inspite of written statement was not filed and adjourned the matter to 28.11.2008. In view of declaring of
holiday on 28.11.2008, the matter was adjourned to 06.01.2009 and on the said day, the defendants and their counsel was absent. The defendants’ evidence was taken as closed and the matter was posted to 22.01.2009. On 22.01.2009, the learned counsel for the plaintiff was heard and the matter was posted for judgment on 31.01.2009. On 31.01.2009, time was sought and hence the case was posted to 20.02.2009. On 20.02.2009, once again the plaintiff’s learned counsel filed an application under Order 7 Rule 14 of CPC along with the documents and under Order 18 Rule 17 read with 151 of CPC and both the applications were allowed. P.W.1 was further examined and the documents Exs.P.9 and 10 were marked and closed the further evidence and posted
the matter for judgment and ultimately the judgment was pronounced on 27.02.2009.
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before the Trial Court on behalf of defendant No.1 also and now the present appellant, who are the legal heirs of defendant No.1 cannot contend that he was not having any knowledge.
the suit is filed for the relief of specific performance of the contract and for a period of two years, even though the defendants were having knowledge about the proceedings, did not contest the matter. It is important to note that in Misc.No.77/2010, when petitioner No.1 was examined as P.W.1, she has categorically given the admission that the address mentioned in the petition and also the address mentioned in the suit is one and the same. The address of both the defendants is shown as Hosahundi village. The Trial Court also taken note of appearance on behalf of defendant No.2 and also undertaking given by the very same counsel to appear on behalf of defendant No.1 also and rightly comes to the conclusion that both the defendants were having knowledge about the proceedings. Even though no summons was served on the husband of petitioner No.1, the fact that all of them are residing together is not in dispute. The petitioner No.1 categorically stated that the last rites of her husband
was conducted in the house of defendant No.2. When such material is available before the Court and though the learned counsel for the appellants contend that Exs.P.3 and 4, birth certificate and election identity card are pertaining to petitioner No.2 and also election identity card pertains to petitioner No.1 in respect of different address i.e., Mysuru address, the same cannot be relied upon, since the Court has to take note of the factual aspects of the case. The defendant Nos.1 and 2 are brothers and were having knowledge of the earlier proceedings. The defendant No.2 was represented through the counsel and the very same counsel undertook to appear on behalf of defendant No.1 before the Trial Court.
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Court that the appellants had no knowledge about the proceedings and no summons have been served, cannot be accepted having considered the factual aspects of the case. Hence, I do not find any ground to set aside the order passed by the Trial Court.
following:
ORDER
The appeal is dismissed.
Sd/JUDGE
MD
List No.: 1 Sl No.: 30
1 issue framed by the court
Whether the legal heirs of defendant No.1 had knowledge of the suit proceedings so as to sustain dismissal of the Order 9 Rule 13 petition to set aside the ex parte decree.
6 provisions across 1 enactments
Smt. Latha
Darshan
Sri. Bandhi Ningegowda
Smt. Savitha
Master Srinivas
Kum. Bindhu
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
