D H Ramanjinappa @ D H Dhruva Ramanji vs H S Shankar & Others

C.M. Poonacha, J

The above first appeal is filed by the Defendant under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) challenging the judgment and decree dated 26.7.2014 passed in OS NO.9327/2013 on the file of the XXXIX Additional City Civil and Sessions Judge, Bangalore (hereinafter referred to as the 'Trial Court), whereunder the suit filed by the Plaintiffs for specific performance is decreed.

Along with the above appeal IA.I/2019 is filed under Section 5 of the Limitation Act to condone the delay of 1606 days in filing the appeal and IA.2/2019 is filed under Order XLI Rule 5 of the CPC read with Section 151 of CPC for stay.

The Respondents have filed their detailed objections along with 6 documents to IA.1/2019 and also to IA.2/2019.

For the sake of convenience, the parties herein are referred as per their rank before the Trial Court.

A few necessary background facts are required to be noticed before consideration of IA.1/2019.

It is the case of the Plaintiffs that the Defendant being the owner of the suit property agreed to sell the same to the Plaintiffs for a total sale consideration of Rs. 55 lakhs and the parties entered into registered Agreement of Sale dated 5.5.2011 and also received an advance sale consideration of Rs. 45 lakhs. The Sale Deed was agreed to be executed within two years. The balance sale consideration ofRs. 10 lakhs was to be paid and the possession of the property was to be handed over at the time of registration of the Sale Deed. Thereafter, the parties also entered into a registered Rectification Deed dated 7.5.2011. It is the further case of the Plaintiffs that despite they being ready and willing to perform their part of the contract, the Defendant failed to perform his part of the contract despite several requests and demands. Hence, the Plaintiffs filed a suit for specific performance.

The notice sent to the Defendant was received by his wife. However, since the Defendant did not enter appearance, he was placed ex parte. The Plaintiff No.1 examined himself as PW.1 and marked Exs.P1 to P5. Since the Defendant was placed ex parte, no evidence was adduced on his behalf. The Trial Court, upon an appreciation of the oral and documentary evidence available on record, by its judgment and decree dated 26.7.2014 decreed the suit of the Plaintiffs and passed the following order:

"The suit of the Plaintiffs is hereby decreed against the Defendant.

The Defendant is hereby directed to execute registered sale deed in favour of Plaintiffs by receiving balance consideration ofRs. 10 lakhs within 90 days from the date of this order.

In case of failure, the Plaintiffs got right to get the sale deed in respect of the suit property according to law.

Draw a decree accordingly."

Being aggrieved the present appeal is filed.

The learned Counsel for the Appellant-Defendant contended that:

i) The Judgment and decree passed by the Trial Court is without granting an opportunity to the Defendant to contest the suit. That if an opportunity is afforded to the Defendant, he would substantiate his case by producing sufficient material;

ii) The Plaintiffs have not issued any demand notice to the Defendant asking him to execute the registered Sale Deed which is a mandatory requirement, in the absence of which there was no cause of action to file the suit;

iii) There was no legal necessity for the Defendant to sell the ancestral property in which the children have also got a definite share;

iv) The Plaintiffs did not satisfy the ingredients of Sections 16 and 20 of the Specific Relief Act, 1963, and the Trial Court ought not to have decreed the suit of the Plaintiffs;

v) He was not aware of the pendency of the suit and became aware of the same only when the decree was executed.

In support of his contentions, the learned Counsel relied on the following judgments:

i) GNR Babu @ S.N.Babu v. Dr.B.C.Muthappa & Ors., Civil Appeal No.6228/2022, DD 6.9.2022;

ii) Pratibha Singh v. Shanti Devi Prasad (2003) 2 SCC 330.

Per contra, the learned Counsel for the Respondents/Plaintiffs contended that:

i) The Defendant cannot be permitted to plead the aspect regarding non service of suit summons in view of the fact that the said contention is required to be urged in a proceedings under Order IX Rule 13 of the CPC which the Defendant has not initiated;

ii) Consequent to the decree passed by the Trial Court the Plaintiffs filed Execution Case No.261/2017 and the Executing Court through its Commissioner has executed the registered Sale Deed dated 31.5.2018 and the Plaintiffs have also been put in possession of the suit property through process of the Executing Court on 12.3.2019;

iii) The Plaintiffs have acquired a vested right over the property in question and the delay cannot be condoned;

iv) The Defendant has suppressed the fact that during the pendency of the registered Agreement of Sale dated 5.5.2011 executed in favour of the Plaintiffs, he has executed another agreement in favour of one K.Prashanth Reddy vide registered Sale Agreement dated 3.9.2012 which is cancelled by a registered Cancellation Deed dated 13.12.2013 and subsequently the Defendant has executed another registered Sale Deed dated 13.12.2013 in favour of Dr.K.C.Raju Reddy;

v) The suit summons has been duly served on the Defendant and the Defendant has not given sufficient reasons to condone the delay;

Hence, he seeks for dismissal of IA.1/2019 as well as the above appeal.

We have considered the submissions made by both the learned Counsel and perused the material available on record. The questions that arise for consideration are:

i) Whether IA.1/2019 is required to be allowed?

ii) Whether the judgment and decree passed by the trial court is liable to be interfered with?

In support of IA.1/2019 for condonation of delay, the Appellant/Defendant has sworn to an affidavit stating that notice was not issued to him in accordance with law by the Trial Court and that an ex parte judgment and decree was passed. It is further stated that when some persons claiming to be Ameena from the Court came to the residence of the Defendant i.e., the suit property and locked the house in the second week of March 2019 and when the Defendant questioned them, he was informed that in execution of the decree passed in the suit filed by the Plaintiffs, delivery warrant has been issued. That immediately he contacted his Advocate on 12.3.2019 and upon verification he learnt of the judgment and decree and accordingly, applied for certified copies and handed over the same to the Advocate on 14.3.2019 and filed the above appeal. That the delay in filing the appeal is bona fide and unintentional.

The Respondents/Plaintiffs in their objections to IA.1/2019 have stated that consequent to the decree the Plaintiffs filed Execution Case No.261/2017 and the Executing Court through its Commissioner has executed the registered Sale deed dated 31.5.2018. Further, pursuant to the delivery warrant issued by the Executing Court, the Plaintiffs have been put in possession of the property on 12.3.2019. It is further averred by the Plaintiffs that the suit summons has been received by the Defendant and the contention that the Defendant was not served with the suit summons is contrary to the material on record.

It is further placed on record that though the Defendant executed the registered Sale Agreement dated 5.5.2011 in favour of the Plaintiffs, he has executed another registered Sale Agreement dated 3.9.2012 which was cancelled by a registered Deed of Cancellation dated 13.12.2013 and on the same day, the Defendant has executed another registered Sale Deed dated 13.12.2013 in favour of Dr.K.C.Raju Reddy. That although the Defendant has alienated the property, the said aspect has not been disclosed in the above appeal nor in the affidavit filed in support of IA.1/2019.

The suit summons issued through the Court was served on the wife of the Defendant on 20.2.2014 as is forthcoming from the endorsement issued by the Bailiff and the suit summons sent by RPAD has been received by the Defendant on 30.4.2014 as is forthcoming from the postal acknowledgement card. Although the suit summons has been served as noticed above, the Defendant, apart from merely denying the fact that he was not served with the notice in the suit, he has not averred with regard to the aspect regarding service of notice of the suit as is forthcoming from the record.

Order V Rule 15 of the CPC stipulates as follows:

"15. Where service may be on an adult member of defendant’s family.-Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation-A servant is not a member of the family within the meaning of this rule."

(emphasis supplied)

It is relevant to note that Order V Rule 15 of the CPC has been substituted by Act 104 of 1976 w.e.f., 1.2.1977.

A learned Single Judge of this Court considering the substitution made for Order V Rule 15 of the CPC in the case of Mahantesh v. Manjunath ILR 2022 KAR 3435 has held has as under:

"27. Remedy of Order IX Rule 13 of CPC should be always availed before the court of first instance which passed an ex-parte order. In the present case on hand, the trial court records clearly indicate that summons was duly served on the wife of the respondent/defendant. Therefore, even otherwise, the finding of the first appellate court that summons was duly served on respondent/defendant is perverse and palpably erroneous. If the respondent/defendant had any grievance in regard to due service of summons and if he seriously disputes, then he ought to have initiated proceedings under Order IX Rule 13 of CPC before the court at the first instance. The material on record would clearly indicate that summons was served on the wife of respondent/defendant and therefore, there is due compliance of Order V Rule 15 of CPC. Prior to 1956 amendment, the summons was always required to be served either on the defendant or on the male members of the family. By way of 1976 amendment, the same is substituted and now service may be on adult member of defendant's family. Admittedly, the summons was served on respondent/defendant's wife. Therefore, a presumption would arise that summons was duly served on respondent/defendant. Even if respondent/defendant were to deny and place some evidence and if presumption is refuted, in that event, the burden shifts on the plaintiff to prove due service by leading evidence. There is absolutely no material 29 placed on record by respondent/defendant that no honest attempt was made to personally serve on the defendant at his residential address and therefore, service on the family member cannot be held as sufficient service. It is a trite law that in view of amendment to Rule 15 of Order V of CPC, service effected on the wife of the defendant is sufficient service. ………."

(emphasis supplied)

Countering the submissions of the learned counsel for the Plaintiffs that the aspect regarding service of notice is required to be contended only in a proceedings under Order IX Rule 13 of the CPC the learned Counsel for the Defendant has relied on the judgment of the Hon’ble Supreme Court in the case of G.N.R. Babu Civil Appeal No.6228/2022, DD 6.9.2022 to contend that the aspect regarding non service of suit summons can be contended even in a first appeal.

In the case of G.N.R. Babu Civil Appeal No.6228/2022, DD 6.9.2022 the Hon’ble Supreme Court, after relying on its earlier judgment in the case of Bhanu Kumar Jain v. Archana Kumar & Anr., (2005) 1 SCC 787 has held as follows:

"7. ……….. This Court held that though after dismissal of an appeal under Section 96 of CPC against ex parte decree, application under Rule 13 of Order IX of CPC will not be maintainable, there is no bar on unsuccessful defendant adopting both the remedies simultaneously. In such a case, if the regular appeal against the decree is dismissed, obviously the application under Rule 13 of Order IX of CPC cannot proceed. The reason is that explanation to Rule 13 of Order IX of CPC lays down that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than withdrawal, application for setting aside ex parte decree will not lie. However, in the event an application under Rule 13 of Order IX of CPC is dismissed, the defendant can prosecute the appeal against the decree as a right to prefer appeal under Section 96 cannot be taken away in absence of any express provision to the contrary in CPC. In paragraph 38 of the aforesaid decision, this Court held that when application under Rule 13 of Order IX of CPC filed by a defendant is dismissed, the defendant cannot be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing and/or existence of a sufficient cause for nonappearance of the defendant.

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 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 Jain Civil Appeal No.6228/2022, DD 6.9.2022, 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."

(emphasis supplied)

In view of the settled position of law as noted in the case of G.N.R. Babu Civil Appeal No.6228/2022, DD 6.9.2022, the aspect regarding non service of summons can be adjudicated in the present appeal having regard to the fact that the Defendant has, admittedly not initiated any proceedings under Order IX Rule 13 of the CPC.

It is a settled proposition of law that while seeking condonation of delay, the Appellant is required to explain every day's delay. That while considering the said aspect Courts ought not to adopt a pedantic approach. However, there must be a reasonable explanation for the delay. (see: Ajay Dabra v. Pyare Ram & Ors.,5 ).

As noticed above, the suit summons was served on the wife of the Defendant on 20.2.2014 and on the Defendant on 30.4.2014 as is forthcoming from the RPAD acknowledgement card. As held in the case of Mahantesh3 the summons served on the wife of the Defendant is required to be held as sufficient service. It is required to be presumed that the Defendant had knowledge of the suit as on the said date. The delay for the period when the Defendant was served with the suit summons in February/April, 2014 till March, 2019 remains unexplained. Hence, the Appellant has failed in demonstrating sufficient cause to condone the delay in filing the above appeal. In the absence of the Defendant specifically refuting the service of suit summons as noticed above, the cause of action shown for condonation of delay only from March, 2019, is liable to be rejected.

Another aspect which is required to be taken note of is that due to the passage of time, valuable rights in immovable property has stood vested with the Plaintiffs, as also the fact that the Defendant has also not disclosed the true and correct facts regarding the alienation of the suit property while filing the present appeal.

The judgment relied upon by the Appellant Pratibha Singh2 will not aid the case of the Appellant as in the said case the Hon'ble Supreme Court has held that the map of the property should be filed with the plaint, when sub-plot numbers mentioned to describe the property were not capable of being identified merely by boundaries nor by numbers. However, in the present case, the decree having been executed and the Plaintiff having been put in possession of the property, the said judgment will not aid the case of the Appellant.

It is forthcoming from a perusal of the order sheet dated 28.10.2022 that this Court directed the Appellant to deposit a sum of Rs. 45 lakhs which he received under the Agreement of Sale with interest at 6% p.a. Accordingly, the Appellant has deposited a total sum of Rs. 75,82,500/- lakhs (Rs. 15 on 2.12.2022 and Rs. 37 lakhs and Rs. 23,82,500/- on 6.1.2023) which has been kept in Fixed Deposit pursuant to the orders dated 2.12.2022 and 6.1.2023.

In view of the findings recorded above, the questions framed for consideration are answered in the negative. The appellant is entitled to refund of the amounts deposited by him before this Court.

In view of the aforementioned, we pass the following:

ORDER

i. IA.1/2019 is dismissed;

ii. Consequently, the above appeal is also dismissed;

iii. IA.2/2019 for stay does not survive for consideration in view of the dismissal of the appeal;

iv. Registry to refund the amount deposited by the Appellant upon due verification.

No costs.