Krishnadevaraya vs Gulabi Devi and Others

B. Veerappa, J—Defendant No. 2 filed the above Civil Revision Petition against the order dated 25.03.2014 made in Misc. Appeal No. 29/2013, on the file of the III Addl. District and Sessions Judge, Ballari, sitting at Hospet, confirming the order dated 14.12.2012 made in Misc. Case No. 32/2011, rejecting the application filed under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (for short ''CPC) to set aside the ex-parte'' judgment and decree dated 20.08.2010 made in O.S. No. 210/2006, is before this Court.

It is the case of the petitioner that the 1st respondent, who is the plaintiff in the trial court, by filing a suit in O.S. No. 210/2006 for recovery of Rs. 3,83,998/- against the petitioner (who was the 2nd defendant) and others. When the petitioner was in USA, the suit was decreed ex parte by the trial court against him. Aggrieved by the said judgment and decree, the petitioner filed Misc. Case No. 32/2011 under Order IX Rule 13 read with Section 151 of CPC before the Principal Senior Civil Judge and JMFC, Hospet, who after hearing both the parties, by his order dated 14.12.2012 has dismissed the petition holding that the petitioner deliberately not appeared in the Original Suit. Therefore, the ex parte judgment and decree is not liable to be set aside.

Aggrieved by the said order, the petitioner filed Misc. Appeal No. 29/2013 before the III Addl. District and Sessions Judge, Ballari, sitting at Hospet, who after hearing both the parties by his impugned order dated 25.03.2014, dismissed the appeal and confirmed the order passed by the trial court. Hence, the present revision petition is filed.

I have heard the learned counsel for the parties to the lis.

Sri. Harsha Desai, learned counsel for the petitioner, has contended that the petitioner who was the 2nd defendant in the trial court, was out of the country and notice which was served to his father-the alleged power of attorney holder, does not amount to service and the judgment and decree made in O.S. No. 210/2006 also depicts that petitioner was made ex-parte (Defendant No. 2 Ex-parte). Therefore, the impugned order passed by the courts below rejecting his application under Order IX Rule 13 of CPC is erroneous and contrary to law, and also contended that the plaintiff cannot succeed the suit on technicalities and an opportunity should be given to the petitioner, who was the 2nd defendant, to put forth his case and by giving an opportunity, no prejudice will be caused to the plaintiff. Therefore, he sought to set aside the impugned order passed by the courts below, allowing the writ petition.

Per contra, Sri. J.S. Shetty, learned counsel for the 1st respondent/plaintiff, has sought to justify the impugned orders and contended that the service of notice being made and it was specifically refused by the power of attorney holder of the petitioner. Therefore, it was not an ex-parte order. Therefore, the order passed by the courts below are perfectly justified. Therefore, he has sought to dismiss the Civil Revision Petition.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for both the parties and perused the entire material on record.

It is not in dispute that the suit filed by the 1st respondent/plaintiff for recovery of Rs. 3,83,998/-, contending that, a registered partnership firm has been formed, at the first instance, to do the business to deal with electrical items, tele-communications, office automation, etc., as agreed between the parties, i.e., between Krishnadevaraya/defendant No. 2 and K.S. Narendra Kumar and the business has been started at Hospet under the name and style of M/s. Unik Automation and the deed of partnership has been entered by them on 26.04.1997 to deal with the above said items of business and the 2nd defendant/Krishnadevaraya left to U.S.A. by giving power of attorney to his father and his father was acting as his power of attorney holder, etc. The notice issued to the 2nd defendant was served personally to the present petitioner, but according to the plaintiff, he has been served to the power of attorney holder. The service is to a power of attorney holder and the plaintiff has not examined the power of attorney holder to show that notice has been received by him on behalf of his son/defendant No. 2 and no material documents are produced before the Court to show that the 2nd defendant was served.

In fact, the judgment and decree dated 20.08.2010 clearly indicates that the 2nd defendant/present petitioner was placed ex-parte. When the rights of the parties in respect of the recovery of money was involved, it was the duty of the trial court to ensure that the notice should be served personally to the petitioner/2nd defendant. The same has not been done in the present case. The parties shall not succeed based on mere technicality. Ultimately, the rights of the parties has to be decided by giving proper opportunity to both the parties in order to implement substantial justice between the parties to the suit.

Even the trial court in Misc. Case No. 32/2011 has recorded a finding that the ex-parte judgment and decree is not liable to be set aside. It means the trial court has also indirectly admitted that the 2nd defendant was not served and he was placed ex-parte, without proper notice and without giving an opportunity. The party should not lose his right, based on technicality. That is not the intention of the courts while dealing with the rights of the parties. The trial court only stated that inspite of grant of many adjournments, the petitioner did not contest the case properly and he has not taken pain to appear in the original suit and contested case and it is also not in dispute that the petitioner was out of the country and it is also stated by the learned Judge that the suit filed by the petitioner showing his father as GPA holder, though the petitioner was living in USA at the relevant time, but his father was present in the given address. The Court Process Server report shows that the summons was refused by his father. It is relevant to state here that the Court process was served on the power of attorney holder and not the petitioner and admittedly in the present case, respondents have not produced any material before this Court that the father of the petitioner was holding GPA on behalf of the petitioner to contest the suit. In the absence of the same, the notice issued to the father of the 2nd defendant does not amount to service of notice. Therefore, the impugned order passed by the trial court rejecting the application under Order IX Rule 13 read with Section 151 of CPC cannot be sustained in law. The same is confirmed by the appellate court without referring the merits of the case and without reference to the service of notice to the petitioner personally. Therefore, the impugned orders passed by the courts below are wholly erroneous and contrary to law.

Before examining the scope and impact of Order IX Rule 13 of the CPC and the proviso to it and the definition of ''Decree'' made in the Code and other relevant provisions, it is appropriate to look into earlier provisions made in the Civil Procedure Code, 1882. Section 108 of the 1882 Code dealt with the applications for setting aside the ex-parte decree, which reads as under:

"In any case, in which a decree is passed ex-parte against the defendant, he may apply to the Court by which the decree was made for an order to set it aside, and if he satisfies that the Court that the summons were not duly served, the Court shall pass an order to set aside the said decree upon such terms as to costs, payment into court or otherwise as it thinks fit and shall appoint a date for proceeding with the suit."

The expression "proceeding with the suit", clearly shows the intentions of the Legislature that the Court was required to proceed with the suit i.e., between all the plaintiffs and defendants. Therefore, the impugned order passed by the trial court rejecting the application under Order IX rule 13 of CPC is bad in law.

A reading of Order IX Rule 13 of CPC would clearly shows that under the said provision, it was clarified that an ex-parte decree was ordinarily to be set aside only against the defendant, against whom, the decree was passed ex-parte and the suit was to be revived.

In order to protect the substantial justice between the parties, since in the present case, the suit filed by the plaintiff for recovery of money of Rs. 3,83,998/- and odd, therefore, it is just and appropriate to give an opportunity to the 2nd defendant to contest the suit on merits by imposing cost, accordingly, the impugned orders are liable to be set aside.

It is no doubt true that, within time from the date of judgment of the trial court, the petitioner has filed application for restoration of the ex-parte judgment and decree but, in view of the proceedings before the trial court, as well as the appellate court, now the matter is dragged for more than four years from the date of judgment. The said delay might have caused prejudice and inconvenience to the plaintiff. It may be compensated by means of cost and ultimately, the trial court has to decide the suit independently based on the evidence on record to be adduced before it by both parties.

In order to give an opportunity to the petitioner, this court is of the opinion that the impugned order passed by both the courts below are liable to be set aside.

Accordingly, the impugned order passed by the appellate court dated 25.03.2015 made in Misc. Appeal No. 29/2013 on the file of the III Addl. District and Sessions Judge, Ballari, sitting at Hospet, confirmed by the order dated 14.12.2012 made in Misc. Case No. 32/2011, on the file of Principal Senior Civil Judge and JMFC, Hospet, are hereby set aside;

The ex-parte judgment and decree dated 20.08.2010 made in O.S. No. 210/2006 on the file of the Prl. Senior Civil Judge and JMFC, Hospet, is restored to its file, subject to payment of cost of Rs. 15,000/-(Rupees Fifteen Thousand only) payable by the petitioner to the plaintiff, within a period of four weeks from the date of receipt of a copy of this order.

On such payment, the trial court is directed to proceed with the case in accordance with law, independently, after giving sufficient opportunity to both parities.

The amount deposited by the petitioner before this Court in pursuance of the interim order passed by this Court shall be invested in fixed deposit in any nationalised bank, initially, for a period of two years, which shall be subject to result of the suit.

Accordingly, this Civil Revision Petition is disposed of.