Ramesha Vs Shivarajegowda

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1 - NC: 2025:KHC:152 RSA No. 364 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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REGULAR SECOND APPEAL NO.364 OF 2013 (INJ)

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BETWEEN:

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RAMESHA, S/O LAKKEGOWDA, AGED ABOUT 33 YEARS, THAGACHAGERE VILLAGE, KASABA HOBLI, CHANNAPATTANA TALUK, RAMANAGARAM DISTRICT-571 502, NOW R/A BELAVATHA, R B POST, MYSORE.

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…APPELLANT

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[BY SRI A. LOURDU MARIYAPPA, ADVOCATE (NOC) (PH)]

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AND:

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1 . SHIVARAJEGOWDA

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SINCE DECEASED BY HIS LRs

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1(a) SMT. CHIKKATHAYAMMA, AGED ABOUT 60 YEARS, W/O LATE SHIVARAJEGOWDA,

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R/A KANNAMANGALA VILLAGE, CHANNAPATTANA TALUK RAMANAGARAM DISTRICT-571 502.

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1(b) SRI YOGARAJU, AGED A;BOUT 45 YEARS, S/O LATE SHIVARAJEGOWDA, R/A KANNAMANGALA VILLAGE, CHANNAPATTANA TALUK

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RAMANAGARAM DISTRICT - 571 502.

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1(c) SMT. SHIVALINGAMMA, AGED ABOUT 50 YEARS,

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D/O LATE SHIVARAJEGOWDA,

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W/O SRI RAJU, R/A BYRAPATNA VILLAGE, KASABA HOBLI, CHANNAPATTANA TALUK RAMANAGARAM DISTRICT - 571 502.

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1(d) SMT. SAVITHA, AGED ABOUT 35 YEARS, D/O LATE SHIVARAJEGOWDA, W/O SRI CHANNEGOWDA, R/A KADANAKUPPE VILLAGE, KAILANCHA HOBLI, RAMANAGARAM TQ & DT. - 561 159.

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1(e) SMT. BABY, AGED ABOUT 30 YEARS, D/O LATE SHIVARAJEGOWDA, W/O KRISHNAMURTHY, R/A BRAHMANIPURA VILLAGE, CHANNAPATNA TALUK, RAMANAGARAM DISTRICT - 571 502.

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2 . LAKKEGOWDA

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SINCE DECEASED BY HIS LRs

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2(a) SMT. JAYAMMA, AGED ABOUT 55 YEARS, W/O LATE LAKKEGOWDA, R/A THAGACHIGERE VILLAGE, KASABA HOBLI CHANNAPATTANA TALUK RAMANAGARAM DISTRICT - 571 502.

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3 . LAKKARAJU, S/O LAKKEGOWDA, AGED ABOUT 37 YEARS,

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4 . SURESHA, S/O LAKKEGOWDA, AGED ABOUT 35 YEARS,

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RESPONDENTS NO.2 TO 4 ARE R/A THAGACHIGERE VILLAGE, KASABA HOBLI, CHANNAPATTANA TALUK, RAMANAGARAM DISTRICT - 571 502.

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5 . SMT. SUDHA, W/O RAMAKRISHNE GOWDA, AGED ABOUT 33 YEARS, R/A KODIPURA VILLAGE, CHANNAPATTANA TALUK, RAMANAGARAM DISTRICT-571 502.

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6 . SMT. SHOBHA,

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W/O SURESH, AGED ABOUT 30 YEARS, CHIKKANA DODDI, CHANNAPATTANA TALUK, RAMANAGARAM DISTRICT-571 502.

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…RESPONDENTS

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[BY SMT.AISHWARYA O., ADV FOR SRI RAJESWARA P.N., ADV. FOR R1(a-e) (PH); R2(a), R3 - R6 ARE SERVED ]

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THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 18.08.2012 PASSED IN R.A.NO.13/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHANNAPATTANA, RAMANAGAR DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.06.2010 PASSED IN OS.NO.88/2009 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC, CHANNAPATNA.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 20.11.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THROUGH VC FROM DHARWAD BENCH, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2025:KHC:152 RSA No. 364 of 2013

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CAV JUDGMENT

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Challenging judgment and decree dated 18.08.2012 passed by Senior Civil Judge & JMFC., Channapatna, Ramanagara District, in R.A.no.13/2012 and judgment and decree dated 23.06.2010 passed by Addl. Civil Judge (Jr.Dn.) Channapatna, in O.S.no.88/2009, this appeal is filed.

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Brief facts as stated are that Appellant was defendant no.1 in suit filed by respondent no.1 - plaintiff for declaration that judgment and decree dated 10.01.2008 passed by Prl. Civil Judge (Jr.Dn.) & JMFC., in O.S.no.137/2004 as not binding on plaintiff and for permanent injunction restraining defendants, their agents etc. from interfering with plaintiff's peaceful possession and enjoyment of land bearing Sy.no.73/3, measuring 02 acres 12 guntas situated at Brahmanipura village, Kasaba Hobli, Channapatna Taluk (' Suit Property ' for short).

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In plaint, it was stated plaintiff purchased suit property on 11.08.2004 from defendants no.1 to 4 for valuable consideration. At that time, plaintiff no.1 (sic. defendant no.1 – Ramesha) was minor and represented by defendant no.2 as

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guardian. From 11.08.2004, plaintiff was in possession, paying kandayam and cultivating it. It was stated, defendants no.1 and 3 to 6 were children of defendant no.2, had no subsisting right over it. But on 20.06.2009, defendant no.1 came near suit property and asked plaintiff to deliver possession. When plaintiff resisted, defendant no.1 disclosed about decree obtained by him against other defendants and pendency of final decree proceedings.

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On enquiry, plaintiff came to know that defendants had got defendant no.1 to file OS no.137/2004 for partition etc., and allowing it to be decreed without contest, and filing of FDP no.4/2009. It was alleged said suit was collusive, null and void and not binding on plaintiff. Though, summons was served on defendants, they did not contest or disclose sale in favour of plaintiff and collusively allowed suit to be decreed. Moreover, as plaintiff was not party to suit, decree obtained was not binding on him. As defendant no.1 was trying to dispossess plaintiff from suit property, present suit was filed.

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Despite service, defendants did not appear. They

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were placed ex parte.

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Based on pleadings, trial Court framed following

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issues:

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Whether the plaintiff is entitled for suit claim relief as prayed by him?

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What decree or order?

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To prove his case, plaintiff examined himself as PW

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1 and got marked Exs.P.1 to 13. There was no evidence led by defendants, who were placed ex-parte .

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On consideration, trial Court answered issue no.1 in affirmative and issue no.2 by decreeing suit and holding decree in OS no.137/2004 dated 10.01.2008 as not binding on plaintiff and permitting him to participate in final decree proceedings by getting himself impleaded and seek for allotment of suit property to his share, under equity. It also granted decree of permanent injunction restraining defendants from interfering with plaintiff’s peaceful possession and enjoyment of suit property.

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Aggrieved, defendant no.1 filed RA no.13/2012 on various grounds. Based on contentions urged, first appellate Court framed following points:

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1 . Whether the appellant has made out sufficient grounds to interfere with the judgment and decree of the trial Court?

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What order?

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On consideration, it answered point no.1 in negative

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and point no.2 by dismissing appeal. Aggrieved, this appeal is filed.

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Sri A. Lourdu Mariappa, learned counsel for defendant no.1 submitted, appeal was against concurrent error committed by both Courts. It was submitted, trial Court decreed suit placing defendants ex parte , without verifying proper service of summons. It was submitted, as on date of execution of Ex.P1, plaintiff was major and well aware of it, but, failed to implead present plaintiff in OS no.137/2004. On other hand, he filed present suit mentioning wrong address of defendant no.1. It was submitted, though defendant no.1 had taken specific contention about non-service of summons, same was erroneously negatived by observing that summons was issued to address mentioned in OS no.137/2004 and there was presumption about summons sent to valid address that it was duly served.

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It was submitted even in case of no contest by defendant, trial Court ought to examine case on merits. As trial Court merely referred to deposition and documents while decreeing suit. It was submitted, in an appeal under Section 96 of Code of Civil Procedure, 1908 (‘ CPC ’ for short), first appellate Court would be required to re-appreciate entire material on record. But, without re-appreciation, it dismissed appeal. In view of above, learned counsel submitted following substantial questions of law would arise for consideration:

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"1. Without examining person who had effected service of summons on defendants, whether both Courts were justified in holding service of summons as sufficient?

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Whether failure to appreciate entire material by trial Court and re-appreciation by first appellate Court vitiates impugned judgment and decree?"

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In support of submission, learned counsel relied on decisions of Hon'ble Supreme Court in GNR Babu alias SN Babu v. Dr.BC Mutappa and Others , reported in AIR 2022 SC 4213 ; Bhuvichandra Shankar More v. Balugangaram More and Others , reported in 2019 (6) SCC 387 and Bhanu Kumar Jain v. Archana Kumar and another , reported in

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2005 (9) SCC 787. On above grounds sought for allowing appeal.

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On other hand, Smt.Aishwaraya O., learned counsel appearing for Rajeswara PN, advocate for plaintiff vehemently opposed appeal. Relying on decision of this Court in Mahantesh v. Manjunath , reported in 2022 SCC OnLine Kar 1648 , it was submitted contention of non-service of summons could be urged and examined only in proceedings under Order IX Rule 13 of CPC and not in appeal under Section 96 (2) of CPC. It was submitted, since date of purchase under Ex.P.1, plaintiff was in possession of suit property. Though defendants executed Ex.P.1, without impleading plaintiff in OS no.137/2004 or bringing it to his notice, they obtained collusive decree. It was submitted that trial Court had rightly appreciated material on record, decreed suit and reserved liberty to plaintiff to implead in FDP. Same was affirmed by first appellate Court. As appeal was against concurrent findings, scope of interference in second appeal was limited. On above grounds, sought dismissal of appeal without admitting it.

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Heard learned counsel, perused impugned

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judgment and decree and record.

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This appeal is by defendant no.1 against concurrent finding in suit for declaration and permanent injunction. Case of plaintiff (respondent no.1 herein), before trial Court was he had purchased suit property under Ex.P1 - sale deed on 11.08.2004. Said sale deed was executed by defendants no.1 to 4, wherein defendant no.2, father of defendant no.1 had represented him as minor guardian. But, when defendant no.1 filed OS no.137/2004 against defendants no.2 to 6 herein, for partition and separate possession of his 1/4^th share in schedule properties including suit property, they did not either inform plaintiff about said suit or bring to notice of Court sale of suit property to plaintiff. Therefore, decree passed in said suit was result of collusion between defendants and without arraying plaintiff as party to suit. Hence, said decree was null and void and not binding on plaintiff.

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It is seen present appellant – defendant no.1 was placed ex-parte by trial Court. His case before first appellate Court was twofold. Firstly, trial Court failed to verify proper

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service of summons and secondly, trial Court had decreed suit virtually on ground that there was no contest by defendants, without examining whether material on record would be sufficient to justify plaintiff’s claim. First appellate Court first contention by referring to order-sheet dated 30.11.2009, wherein trial Court had recorded that defendants no.1 to 4 were served with summons personally and defendants no.4 and 5 refused summons, which it held to be proper. Second contention was rejected by concurring with trial Court findings.

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In this Appeal, main ground of challenge is about propriety of service of summons, justification of order by trial Court placing defendant no.1 ex parte and refusal by first appellate Court to interfere. While said ground is opposed relying upon decision in Mahanthesh ’s case (supra) and contending that jurisdiction of first appellate Court in Appeal under Section 96 of CPC was confined to examining decree on merits and ground about improper service of summons or placing defendants ex parte could not be urged. Therefore substantial question of law that arises for consideration herein

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is :

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“1. Whether there was proper service of summons on defendant no.1 in suit and whether trial Court was justified in proceeding against defendant no.1 ex parte?

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Whether in Appeal under Section 96 of CPC, defendant is barred from raising those grounds which can be urged in application under Order IX Rule 13 of CPC?”

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This appeal is by defendant no.1 challenging concurrent judgments. Defendant no.1 was placed ex parte by trial Court and first appellate Court held same justified on ground of presumption about service being completed if summons is sent to proper address of defendant.

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Insofar as second substantial question of law, learned counsel for defendant no.1 relied on GNR Babu , Bhuvichandra and Bhanu Kumar Jain ’s cases (supra), while learned counsel for plaintiff relied on Mahanthesh ’s case (supra). In Mahantesh’s case, learned Single Judge of this Court, after referring to ratio laid down in Bhanu Kumar Jain ’s case (supra) held:

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“29. Conclusions:

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(i) If defendant is questioning the correctness of the order posting the case for ex-parte hearing and consequentially raises several

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contentions indicating that he was not served with summons, the said contentions have to be raised in a petition filed under Order IX Rule 13 before the Court of first instance who has passed the order of posting the case for ex-parte hearing and consequentially has passed an ex-parte decree. In view of the principles laid down by the Apex Court in Bhanu Kumar Jain , (supra), the conditions enumerated under clause (a) and (b) of Order IX Rule 13 of CPC cannot be raised in a first appeal against the ex-parte decree under Section 96(2) of CPC.

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(ii) In an appeal under Section 96(2), the defendant on merits of suit can contend that the material brought on record by the plaintiff were not sufficient for passing a decree in his favour, which necessarily presupposes that defendant even in the absence of defence or rebuttal evidence can still argue that evidence available on record is not sufficient to grant any reliefs to the plaintiff.

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(iii) The principles laid down by the Apex Court in the case of Bhanu Kumar Jain , (supra), clearly indicate that defendant cannot be permitted to raise contention as regard to correctness or otherwise of order posting the suit ex-parte hearing; conversely can be inferred that Appellate Court also cannot examine the existence of sufficient case for non-appearance of the defendant in an appeal filed under Section 96(2) and has to only confine its adjudication on merits.

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(iv) There is no legal impediment in filing the appeal against the ex-parte decree. Though

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remedies under Order IX Rule 13 and Section 96(2) are concurrent but their scope is entirely different. The two remedies provided against ex-parte decree are in respect of two different situations and can be resorted to only if the facts of the situations are available to litigant.

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(v) If the there is denial of service by defendant, the presumption raised under Section 27 of the General Clauses Act on the basis of expression ‘may presume’ stands refuted and burden would shift upon the plaintiff to prove due service by leading evidence and also by examining the process server and this exercise has to be done before the Court of first instance which has proceeded to place the defendant ex-parte and consequentially exparte decree is passed.

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(vi) An enquiry under Rule 13 of Order IX necessarily involves adducing of evidence either to show that summons was not duly served or that he was prevented from appearing by any sufficient cause. The correctness of an order under that provision can be considered by Appellate Court in an appeal under Order XLIII Rule 1(d) of the Code. The petition to set aside ex-parte decree is a less expensive remedy than an appeal for which Court fee on the subject matter of the appeal has to be paid.

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(vii) An error, defect or irregularity which has affected the decision of the case may be challenged in an appeal against the decree whether ex parte or otherwise. But an appeal against the ex parte decree under Section 96(2) CPC cannot be converted into

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proceedings for setting aside the decree with the concomitant duty of affording to the parties an opportunity of adducing evidence for and against any ground that may be raised in support thereof under Order IX Rule 13, CPC. Nor can such an appeal be converted into an appeal under Order XLIII Rule 1(d), CPC. The reason is that when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set aside, these remedies and none other must be followed.”

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21. However, later decision of Hon'ble Supreme Court

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in GNR Babu ’s case (supra), after referring to ratio in Bhanu

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Kumar Jain ’s case (supra) has held as follows:

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“9. In this case, the question is when the defendant did not avail the remedy under Rule 13 of Order IX of CPC, whether it is open for him to agitate in the regular appeal against the decree that the trial court had no justification for proceeding ex parte against the appellant. In such a case, though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him. The reason is that under Section 105 of CPC, when a decree is appealed from, any error, defect or irregularity in any order affecting the

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decision of the case can be set forth as a ground of objection in the Memorandum of Appeal. Thus, in such a case, the appellant can always urge in an appeal against the decree that an interim or interlocutory order passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal. As held in the case of Bhanu Kumar Jain1, only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect. However, in this case, the appellant has not filed application under Rule 13 of Order IX of CPC. Therefore, such a contention can be raised by him.

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10. Now coming to the facts of the case in hand, we find that there is a noting in the order sheet of the trial court dated 27th October 2014 that the summons issued to the appellant and second respondent was returned unserved with the remark that their respective premises were locked. However, on 05th January 2015, the trial court ordered issue of summons by Registered Post Acknowledgement Due at the same address. The order sheet of 05th March 2015 records that the summons sent to the appellant and the second respondent by post was returned with the remarks “Intimation Delivered”.

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Thus, the record shows that an attempt to serve summons by the regular mode failed as the premises of the appellant were found to be locked. The trial court did not direct affixing of a copy of the summons on the outer door of the premises in which the appellant was residing, as required by Rule 17 of Order V of CPC. Without verifying whether the address of the appellant, as shown in the cause title of the suit was correct, summons was ordered to be served through Registered Post AD. Therefore, in our view, there was no warrant for proceeding ex parte against the appellant.”

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Admittedly, appellant – defendant no.1 herein has not filed application under Order IX Rule 13 of CPC, for setting aside of ex-parte decree. He invoked only appellate remedy. Therefore, as held in GNR Babu ’s case (supra), there would be no impediment against challenging judgment and decree of trial Court on ground of lack of proper service of summons. Consequently, ratio laid down in Mahantesh ’s case is no longer good law.

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In order to answer other substantial question of law, it would be appropriate to refer to records of trial Court. It is seen that suit was filed on 10.07.2009, summons was ordered on 13.07.2009. On 01.09.2009, noting defendants no.1

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to 5 were unserved, fresh summons was ordered by RPAD. And on 30.11.2009, trial Court held defendants no.1 to 4 served by RPAD and placing them ex-parte . Shara of process server on summons issued to defendant no.1 discloses that service could not be effected. RPAD acknowledgment of summons issued to defendant no.1 contains thumb impression of Lakkegowda. Though, Ex.P9 – notice issued in compliance with Order XXXIX Rule 3A of CPC, to defendant no.1 bears signature, it cannot be confirmed to be that of defendant no.1. Said acknowledgment was received on 17.07.2009.

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At this stage, it would be appropriate to shed attention to one more factor in present case. In Ex.P1 – sale deed dated 11.08.2004, age of defendant no.1 – Ramesha is shown as 16 years i.e. minor and therefore represented by his natural guardian defendant no.2. But, in OS no.137/2004, his age as on date of filing i.e. 29.10.2004 is shown as 28 years. Said suit is filed and pursued by defendant no.1 wherein he also deposed as PW.1. This would indicate that he had attained age of majority, in which case, execution of Ex.P1 - sale deed by Lakkegowda – defendant no.2 showing defendant no.1 as minor would indicate conflict of interest. Hence, when there is

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no proper service of summons on defendant no.1, order of trial Court proceeding against him ex-parte would vitiate judgment and decree of trial Court. While passing impugned judgment and decree, first appellate Court did not choose to verify proper services, but proceeded on basis of presumption. Therefore, first appellate Court failed to exercise jurisdiction vested in it. Hence, appellant is entitled to succeed on both substantial questions of law. Consequently, following:

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ORDER

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Appeal is allowed, impugned judgment and decree dated 18.08.2012 passed by Senior Civil Judge & JMFC., Channapatna, Ramanagara District, in R.A.no.13/2012 and judgment and decree dated 23.06.2010 passed by Addl. Civil Judge (Jr.Dn.) Channapatna, in O.S.no.88/2009 are set aside.

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OS no.88/2009 is restored to file. Since plaintiff and defendant no.1 are represented before this Court, they are directed to appear before trial Court without fresh summons on 03.03.2025. On or before said date, defendant no.1 is permitted to enter appearance and file written statement. In case of default, trial Court would be at liberty to pass appropriate order and proceed in accordance with law.

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In view of fact that suit is of sufficient vintage, all parties are directed not to dilate proceedings and trial Court is directed to expedite disposal of suit, as far as possible within period of six months after completion of service.

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Registry is directed to draw decree and transmit Trial Court Records well before 03.03.2025.

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Sd/(RAVI V. HOSMANI) JUDGE

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Psg/AV/GRD

Ramesha v. Shivarajegowda

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Ramesha v. Shivarajegowda

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