Smt. Indira vs Sri L.K. Rangaswamy

Aravind Kumar, J.—Heard Sri K.N. Dayalu, learned counsel appearing for appellant/defendant and Sri Vishwanath Sabarad, learned counsel appearing for respondent/plaintiff. Perused the order passed by XXXI Addl. City Civil Judge, Bangalore City, Bangalore dated 10.08.2009 in Misc. No. 1055/2008, whereunder petition filed under Order 9 Rule 13 read with Section 151 CPC by appellant herein seeking for setting aside the exparte judgment and decree in O.S. No. 8300/2004 dated 18.06.2008, has been dismissed. It is the contention of Sri Dayalu, learned counsel that appellant had not been served with suit summons in O.S. No. 8300/2004 and she became aware of the exparte judgment and decree only when bailiff brought the order of attachment of movables and tried to execute it against appellant/defendant. He would further elaborate his submission by contending that when respondent/plaintiff had evaded service of notice in Misc. Petition he was placed exparte and evidence of appellant/defendant remained uncontroverted and as such Trial Court without examining these aspects had erroneously dismissed Misc. Petition. He would also submit that if an opportunity is granted to the appellant/defendant she would be able to demonstrate and establish before the Trial Court that there was no alleged transaction between the parties and one claimed by respondent/plaintiff is without any basis and as such, he seeks for an opportunity being granted to the appellant/defendant and prays for suit O.S. No. 8300/2004 being restored to its file for being adjudicated on merits.

Per contra, Sri Vishwanath Sabarad, learned counsel appearing for respondent/plaintiff would support the order passed by Trial Court and contends that appellant/defendant was duly served before the Trial Court and order sheet of Trial Court would also evidence this fact and in the absence of any positive evidence being tendered by appellant/defendant, Trial Court has rightly dismissed the Petition filed under Order 9 Rule 13 read with Section 151 CPC, which does not call for interference and hence, he prays for rejection of the appeal.

Having heard the learned Advocates appearing for parties and on perusal of order passed in Misc. No. 1055/2008 dated 10.08.2009 as also judgment and decree passed in O.S. No. 8300/2004 dated 18.06.2008 and records secured from the Courts below, following points would arise for my consideration:

i. Whether petition filed by appellant/defendant under Order 9 Rule 13 read with Section 151 CPC seeking for setting aside the exparte judgment and decree passed in O.S. No. 8300/2004 on 18.06.2008 ought to have been allowed by the Trial Court and order in question requires to be affirmed or set aside?

ii. What order?

Perusal of records would indicate that a suit came to be filed by respondent herein in O.S. No. 8300/2004 for recovery of sum of Rs. 1,50,000/- together with interest @ 18% p.a. from 10.11.2001 being the date of issuance of cheque till date of filing of the suit i.e., 09.11.2004 and upto date, in a total sum of Rs. 2,31,000/- with. similar future rate of interest and costs. Suit summons came to be ordered on defendant. Order sheet of the Trial Court in O.S. No. 8300/2004 would indicate that on 06.04.2005 Trial Court has recorded that summons has been duly served on defendant based on the share made by the Registry, which is to the following effect:

Served on 15.12.2004.

Thereafterwards trial Court has called out defendant, on account of none having appeared, it has been recorded as absent and it is thereafter defendant came to be placed exparte on 12.12.2005. It is thereafter Trial Court has proceeded to adjudicate the claim of plaintiff and decreed the suit as prayed for.

Challenging the said judgment and decree a Misc. Petition under Order 9 Rule 13 read with Section 151 CPC came to be filed on 12.12.2008 by the defendant contending interalia that suit summons was not served and as such, defendant sought for setting aside the exparte judgment and decree. Though notice on Misc. Petition was served on respondent, he did not choose to appear and contest the matter. Defendant got herself examined as P.W.1 and she produced 5 documents and got them marked as Exs.P-1 to P-5. On evaluation of evidence tendered by defendant, Trial Court dismissed the Misc. Petition by concluding that the order sheet in O.S. No. 8300/2004 dated 06.04.2005 was clearly indicating that notice issued to defendant by Registered Post Acknowledgement Due was duly served on 15.12.2004.

The contentions raised before the Trial Court in Misc. No. 1055/2008 has been reiterated by Sri Dayalu, learned counsel appearing for defendant before this Court. In the light of specific contention by the defendant that suit summons was not duly served and as such, there was deficiency of service of notice as required under Order 5 CPC, I have examined the records of Trial Court namely O.S. No. 8300/2004. Postal acknowledgment which has been received by the Central Process Mahazar, City Civil Court, Bangalore, would clearly indicate that suit summons has been despatched through RPAD addressed to defendant. Address of the defendant as reflected in the said postal acknowledgement is the same address as reflected in the present appeal. There is no change in the said address. Same has been signed by Smt. Indira on 15.12.2004. The signature found on the postal acknowledgment when compared with the signature found in the vakalathanamas namely vakalathanama filed in Misc. No. 1055/2008 (records of which have also been secured by this Court) and also the signature of appellant found in the vakalathanama of the present appeal, it would prima-facie indicate that all these signatures are one and the same. In fact, the trial Court adjudicating Misc. Petition under Order 9 Rule 13 CPC for this specific reason has recorded a finding and held that suit summons was duly served on defendant and I am of the view that it is in consonance with records. Said finding recorded by the Trial Court does not suffer from any infirmity either on facts or on law calling for interference of this Court. In that view of the matter, contention of Sri Dayalu, learned counsel appearing for appellant/defendant cannot be accepted and for the reasons assigned herein above point formulated above requires to be answered against the appellant/defendant. Hence following is passed:

ORDER

i. Appeal is hereby dismissed.

ii. Order dated 10.08.2009 passed by XXXI Additional City Civil Judge, Bangalore, in Misc. No. 1055/2008, is hereby affirmed.

iii. No order as to costs.

iv. Registry is directed to transmit the records to the Trial Court.