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2020 DIGILAW 606 (KAR)

G. Gopalakrishna v. Charles Raphael

2020-03-02

JOHN MICHAEL CUNHA

body2020
JUDGMENT John Michael Cunha, J. - This appeal is preferred against the ex parte decree passed by the learned VI Addl. City Civil and Sessions Judge, Bengaluru City (CCH-11) in O.S. No. 3303/2006 dated 10.08.2016. The trial court has placed the appellant (hereinafter referred to as defendant) ex parte on the ground that summons issued to the defendant has been refused by the defendant. 2. For the sake of convenience, the parties are referred to their ranking before the trial court:- The defendant contends that he was not residing in the address mentioned in the summons. Plaintiff has deliberately given a false address and therefore, the order placing the defendant ex parte cannot be sustained and on that ground, he is entitled to maintain an appeal before this Court. On the question of maintainability of appeal, he places reliance on the decision of the Honble Supreme Court in Bhanu Kumar Jain v. Archana Kumar and Another, (2005) 1 SCC 787 . Further the learned counsel contends that even on merits the material produced before the trial court do not entail a decree in favour of the plaintiff. Plaintiff though claims to have acquired his right to the suit schedule property in succession to his deceased mother, he did not produce any title deed, instead, relied on a release deed executed by his siblings and consequent khatha certificate and tax paid receipts. It is the submission of learned counsel that the defendant purchased the suit schedule property from the mother of the plaintiff under a registered sale deed dated 31.10.1979. In respect of said property, there was a civil litigation between the defendant and one Govindraj which had gone up to the Honble Supreme Court. The defendant is in actual possession and enjoyment of the suit schedule property. Under the said circumstances, even on merits, the defendant has a case to oppose the suit filed by the plaintiff. 3. Learned counsel for the plaintiff however disputes the submissions made by learned counsel for the defendant and by referring to the report of the bailiff submits that the defendant having refused to receive the summons cannot seek to set-aside the impugned judgment on the ground of non-service of summons. 3. Learned counsel for the plaintiff however disputes the submissions made by learned counsel for the defendant and by referring to the report of the bailiff submits that the defendant having refused to receive the summons cannot seek to set-aside the impugned judgment on the ground of non-service of summons. On the contentions urged by learned counsel for the defendant, touching the merits of the case, learned counsel submits that it is only after filing of this appeal, plaintiff came to know about the sale deed alleged to have obtained by the defendant. Said sale deed was forged and fabricated and hence, the plaintiff has taken steps to prosecute the defendant for perjury by filing a complaint before the X Addl. Chief Metropolitan Magistrate, Bengaluru in C.C. No. 51669/2019 and the same is pending consideration of the criminal Court. With regard to actual possession of the suit schedule property, learned counsel for the plaintiff contends that only on the strength of interim order passed by this Court, the defendant began to assert his right over the suit schedule property. The plaintiff has inducted the tenants in the suit property and there is ample proof in this regard. Under the said circumstances, without exhausting the remedy under Order IX Rule 13 of CPC, the defendant is not entitled to maintain this appeal. 4. I have considered the rival submissions and perused the records. 5. Insofar as the maintainability of the appeal directly before this Court without exhausting the remedy under Order IX Rule 13 CPC is concerned, substantive provision under section 96(2) CPC itself empowers the aggrieved party to prefer an appeal against the original decree passed ex parte. As such, it cannot be said that the course adopted by the defendant is without authority of law. 6. In the decision referred above, the Honble Supreme Court has clarified the circumstances in which a person suffering ex parte decree can avail appeal remedy before the Appellate court. In the light of the above proposition of law, the objection raised by learned counsel for the plaintiff on the question of maintainability of the appeal is rejected. 7. Insofar as the service of summons to the defendant is concerned, I have perused the original records which contain the report of the bailiff for having refused the summons by the defendant. 7. Insofar as the service of summons to the defendant is concerned, I have perused the original records which contain the report of the bailiff for having refused the summons by the defendant. Said report which has been signed by one of the witnesses is in accordance with Order V Rule 17(1) of CPC which provides for a procedure when the defendant refuses to accept service or cannot be found. The bailiff having followed due procedure, at this juncture, it cannot be said that there was no proper service of notice to the defendant. 8. However, insofar as the other contentions urged by the parties are concerned, in my view, these contentions requires to be adjudicated and therefore ends of justice require that an opportunity is afforded to both the parties to put forth their pleas before the trial Court. Since defendant has put forward a registered sale deed purported to have been executed by the predecessor in the interest of the plaintiff and the plaintiff having taken up a plea that the execution of the said sale deed was not within the knowledge of the plaintiff and the document was forged, to subserve the ends of justice, adequate opportunity is required to be afforded to both the parties to avail legal remedy available under law. 9. In that view of the matter, in the peculiar circumstances of this case, to subserve the ends of justice, the impugned judgment is liable to be set-aside. Accordingly, the appeal is allowed. The impugned judgment and decree passed by learned VI Addl. City Civil and Sessions Judge, Bengaluru City (CCH-11) in O.S. No. 3303/2006 dated 10.08.2016 is set-aside. Matter is remitted to the trial court to consider it afresh by affording opportunity to both the parties to put forth their respective pleas. All legal and factual contentions urged by the parties are kept open for decision of the trial court. Both the parties are directed to appear before the sessions court on 26.03.2020 without any further notice. This order shall not affect the pending proceedings initiated by the respective parties before the criminal court or other authorities. Registry is directed to return the original records to the trial Court forthwith. In view of the above judgment, I.A. 2/2016 and 2/2017 and 1/2017 stand disposed of. Until the matter is seized by the trial court, both the parties shall maintain status-quo as on today.