Rosane vs Housabai

Mohan M. Shantana Goudar, J.—This matter has got a checkered history. The litigation has started with institution of O.S. No. 291/1971 by the petitioner herein seeking decree for possession in respect of the suit property. The same was decreed and ultimately it is confirmed by this Court in RSA No. 668/1984. The said decree was executed in Execution Petition No. 136/1984. The said suit was originally filed against Bhagawandas, i.e., husband of the respondent herein. During the pendency of the matter earlier before this Court, Bhagawandas died and the respondent herein was brought on record as his L.R. According to the petitioner, though the possession was handed over in execution petition, the respondent repossessed the suit property taking advantage of the interim order granted in her favour in O.S. No. 80/95 filed by her. In order to get back the possession, the petitioner filed an application in Execution Petition No. 136/1994 requesting the Court to reissue delivery warrant, which came to be dismissed. The said order was questioned by the petitioner in C.R.P. No. 3914/1999 before this Court, which also came to be dismissed by observing that though the petitioner had taken possession of the property legally, she was dispossessed illegally by the respondent. However, this Court kept open the option in favour of the petitioner to file a separate suit once again for possession.

It is relevant to note that O.S. No. 80/1995 filed by the respondent herein for declaration and injunction against the petitioner herein was dismissed. The said judgment is confirmed in R.A. No. 155/2007. Thus, it is finally decided that petitioner is the owner but not the respondent.

When the facts stood thus, the petitioner, in the meanwhile filed O.S. No. 449/2009 for possession once again as directed by this Court in C.R.P. No. 3914/1999. In the said suit, the notice was issued to the respondent calling upon her to appear before the trial Court on 21.6.2009. The notice seems to have not been served through registered post. Ultimately the bailiff has taken the notice for service on the respondent. The report of the bailiff dated 9.5.2009 discloses that the respondent has refused the service of notice. Such report of the bailiff was handed over to the trial Court on 28.5.2009. The trial Court accepted such report and proceeded with the suit and ultimately decreed the suit exparte.

Respondent herein filed Misc. Application No. 41/2009 under Order IX Rule 13 of CPC. Based on such decree in O.S. No. 449/2009, the petitioner herein is said to have taken possession of the property already by filing Execution Petition No. 839/2009 on 7.9.2009. In the meanwhile, Misc. Application No. 41/2009 came to be filed by the respondent under Order IX Rule 13 CPC for setting aside the decree by the trial Court. The same was dismissed. The respondent herein filed M.A. No. 97/2013 before the first appellate Court, which came to be allowed on 24.3.2014 with a direction that the suit be restored to the file of trial Court. However, it is observed that the defendant-respondent herein is not entitled to invoke the provisions of Section 144 of CPC till the disposal of suit. As against the said order passed in M.A. No. 97/2013, this writ petition is filed.

Sri Ramesh Misale, learned advocate appearing for the respondent submits that the Writ Petition may not be maintainable in view of Section 115 of CPC. According to him, Civil Revision Petition is maintainable before this Court. Even assuming that the Civil Revision Petition is maintainable under Section 115 of CPC, the same is maintainable before this Court only (See the judgment in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, Such technicality does not change the jurisdiction of this Court. In view of the same, the matter is taken up for final disposal without standing on technicality.

Sri Sachin Magadum, learned counsel for the petitioner drawing the attention of the Court to the Second Proviso to Order IX Rule 13 of CPC submits that though there is irregularity of service of summons by the bailiff, the decree should not have been set aside by the first appellate Court in view of the fact that the respondent had purposely evaded service of notice and had intentionally avoided to come before the Court.

Sri Ramesh Misale, learned advocate appearing for the respondent relying on Order V Rules 17 and 19 of CPC submits that the procedure as contemplated therein is not followed and therefore the first appellate Court is justified in setting aside the exparte decree.

I find that the procedure as contemplated under Order V Rules 17 and 19 CPC is not followed, inasmuch as neither there is an affidavit of the bailiff nor the bailiff is examined before the Court in support of his report submitted before the trial Court on 9.5.2009. So also, the Court on facts cannot come to a definite conclusion that the respondent had notice of the date of hearing and had sufficient time to appear and answer the claim of the plaintiff, particularly in the light of the absence of affidavit of the bailiff or his examination before the Court. However, it needs to be observed that the petitioner is made to suffer since 1971 though two decrees for possession are passed in his favour, may be this is a case of abuse of process of law. Be that as it may, in my considered opinion, in order to avoid any technicality, interest of justice will be met if the concerned bailiff is examined before the trial Court. If such a procedure is adopted, no prejudice will be caused to any of the parties, on the other hand, such procedure will bring the truth to the limelight. Accordingly, the following order is made:--

"The judgment in M.A. No. 97/2003, dated 24.3.2014 and the order passed in Misc. Application No. 41/2009 by the II Additional Senior Civil Judge, Belgaum, dated 7.9.2013 stand set aside. Misc. Application No. 41/2009 is restored to the file of the trial Court. The trial Court shall follow the procedure as contemplated under Order V Rules 17 and 19 of CPC before proceeding further. It is made clear that during the pendency of the matter, at any stage, the defendant-respondent herein is not entitled to invoke the provisions of Section 144 of CPC as ordered by the Court below."

Writ petition is disposed of accordingly.