Allowed

Sri. Shamanna v. Mrs. Rajini T

Karnataka HC2 Apr 2024MFA/901/2023

Case brief

AI extract

What is this about?

Appeal against rejection of a petition to set aside an ex parte decree for declaration of title and injunction in an immovable property suit. The High Court allowed the appeal, set aside the order, and granted the defendant a conditional opportunity to contest the suit on payment of costs, with conditions on personal evidence.

What did the court decide?

Impugned order set aside subject to Rs.25,000/- costs payable before Trial Court; appellant to appear on 22.04.2024 and file written statement.

Sri. Shamanna Vs Mrs. Rajini T — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:13523 MFA No. 901 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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MISCELLANEOUS FIRST APPEAL NO. 901 OF 2023 (CPC)

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BETWEEN:

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SRI. SHAMANNA AGED ABOUT 71 YEARS, S/O. LATE SEETHARAMAIAH, RESIDING AT NO. 53, JAYARAMSHETTY LAYOUT, RAJARAJESHWARI TEMPLE STREET, 9^TH CROSS, K.R. PURAM, BANGALORE-560 036.

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY HIS SPECIAL POWER OF ATTORNEY HOLDER, MR. DHRUV. P, AGED ABOUT 31 YEARS, S/O. MR. PRAKASH, RESIDING AT NO. 11, 3^RD CROSS, BACHANNA LAYOUT, KASTURI NAGAR, B. CHANNASANDRA, KALYAN NAGAR, BANGALORE-560 043.

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(BY SRI. BHARADWAJ K.R., ADVOCATE)

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…APPELLANT

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AND:

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MRS. RAJINI T AGED ABOUT 61 YEARS, D/O. SRI. P. SUBRAMANI, RESIDING AT NO. 23, GOKULAM, PANCHAVATI LAYOUT, VIDYANANGAR (SAAIPALYA),

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2 - NC: 2024:KHC:13523 MFA No. 901 of 2023

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THANISANDRA MAIN ROAD, BANGALORE-560 045.

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…RESPONDENT

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(BY SRI. VIJAY A.M., ADVOCATE)

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THIS MFA FILED UNDER ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 13.03.2020 PASSED IN MISC.NO. 304/2018 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH.32), DISMISSING THE PETITION FILED UNDER ORDE IX RULE 13 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioner in Miscellaneous Petition No.304/2018

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on the file of the XX Additional City Civil and Sessions Judge, Bengaluru City has filed this appeal challenging an order dated 13.03.2020 by which, a petition filed by him under Order IX Rule 13 of CPC was rejected.

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The respondent herein had filed

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O.S.No.2601/2015 for declaration of his title to a suit property and for consequential relief of injunction to restrain the appellant herein from interfering with his possession. The appellant was served with the summons and he appeared through his power of attorney holder.

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3 - NC: 2024:KHC:13523 MFA No. 901 of 2023

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However, he did not file his written statement and did not contest the suit for reasons unknown. The Trial Court therefore left with no other alternative, recorded the evidence of the plaintiff/respondent herein and decreed the suit for declaration of title and granted consequential injunction to restrain the appellant from interfering with the possession of the respondent.

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Being aggrieved by the said ex parte judgment

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and decree, the appellant filed a petition under Order IX Rule 13 of CPC to recall the ex parte judgment and decree. The appellant contended that he was 65 years old and was suffering from various ailments and was therefore unable to venture out of his house. Hence, he requested his power of attorney to contest the suit on his behalf. He contended that he was under the bona fide impression that his power of attorney was diligently pursuing the case, but he realised that the suit was decreed ex parte after receiving a copy of the records in O.S.No.2601/2015. He claimed that the suit property was the only property

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NC: 2024:KHC:13523 MFA No. 901 of 2023

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that he had earned out of the savings in life and the ex parte judgment and decree affected his property rights in the suit schedule property and therefore, an opportunity be granted to contest the suit.

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The notice of the petition was issued to the respondent herein and since the respondent did not appear, he was placed ex parte and the case was posted for evidence of the petitioner. The power of attorney of the petitioner was examined as PW.1 and he marked Exs.P.1 to 6. The Trial Court after perusing the material on record held that when the power of attorney of the petitioner appeared in the suit through an advocate, he cannot contend that he was placed ex parte. It also held that the petitioner made a serious allegation that his power of attorney had colluded with the respondent, but the petitioner did not take any steps to cancel the power of attorney. Therefore, it held that action or inaction on the part of the power of attorney also bound the petitioner. The Trial Court therefore rejected the petition filed by the

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NC: 2024:KHC:13523 MFA No. 901 of 2023

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petitioner in terms of the impugned order. Being aggrieved

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by the said order the petitioner is before this Court.

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The learned counsel for the petitioner submits that the suit is filed for declaration and injunction in respect of an immovable property, in which, the appellant was interested and therefore having regard to the contentions urged in the miscellaneous petition, the Court below must have granted an opportunity to the appellant to contest the suit on merits, by imposing conditions that were just and reasonable.

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Per contra, the learned counsel for the

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respondent submits that the notice of the suit in O.S.No.2601/2015 was admittedly served on the appellant and his power of attorney had engaged the services of an advocate. He submits that the appellant did not dispute that he had appointed a power of attorney and therefore if the power of attorney was no diligent, the appellant cannot escape the effect of not defending the suit.

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NC: 2024:KHC:13523 MFA No. 901 of 2023

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I have considered the submissions made by the

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learned counsel for the petitioner and the learned counsel for the respondent.

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Ex.P.6 which was marked before the Trial Court

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did establish that the appellant was unwell and therefore, was forced to appoint a power of attorney. The impugned order passed by the Court discloses that the power of attorney had entered appearance through an advocate, but later did not defend the suit effectively by filing written statement and by cross-examining the witnesses for the respondent. Therefore, though the cause shown for recalling the ex parte judgment and decree is not completely satisfactory, yet since the suit is filed for the declaration and injunction in respect of an immovable property, where the appellant is interested, an opportunity deserves to be granted to the appellant to contest the suit on merits by suitably compensating the respondent for the loss of time and money. Since a doubt was expressed by the respondent that the appellant is not alive, the

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NC: 2024:KHC:13523 MFA No. 901 of 2023

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appellant was directed to be present before the Court. The appellant did not appear on the ground that he was on dialysis. This Court therefore appointed an Advocate to visit the house of the appellant and ascertain the correctness of the claim of the respondent. The Advocate Commissioner has reported that the appellant is doing fine. Therefore, the appellant shall appear in person before the Court at the time of giving his evidence or he shall record his evidence in the presence of a Commissioner who may be appointed by the Court and shall not under any circumstance authorize the power of attorney to appear and adduce evidence on his behalf.

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In view of the above, this appeal is allowed

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and the impugned order passed by the Trial Court is set aside, which is however subject to the condition mentioned above and also subject to payment of cost of Rs.25,000/- payable by the appellant to the respondent before the Trial Court on the next date. The petitioner

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NC: 2024:KHC:13523 MFA No. 901 of 2023

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shall appear before the Trial Court on 22.04.2024 and file

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his written statement on the said date.

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Sd/JUDGE

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GSR List No.: 1 Sl No.: 16

Sri. Shamanna v. Mrs. Rajini T

Case brief

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Sri. Shamanna v. Mrs. Rajini T

Case brief

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