Syed Moinuddin vs Lakshmamma and Others

B.S. Patil, J.—This civil revision petition is filed under Section 115 CPC challenging the Order dated 05.03.2012 passed by the Court below, thereby allowing Miscellaneous No. 51/2009 and setting aside the exparte judgment and decree passed in O.S. No. 330/1989. The suit O.S. No. 330/1989 has been ordered to be restored to file to provide an opportunity to respondent No. 1 herein who was defendant No. 16(a) in the suit and petitioner in the miscellaneous petition.

O.S. No. 330/1989 was filed by the father of the petitioner herein late Syed Umar seeking relief of partition and separate possession of two items of properties i.e., Sy. No. 11/1 measuring 5 acres 24 guntas and Sy. No. 299 measuring 6 acres 5 guntas both situated at Kesare Village, Mysore Taluk. Mother of respondent No. 1 herein was arrayed as defendant No. 16 in the said suit. She adopted the written statement filed by other defendants and had contended that an extent of 2 acres 11 guntas of land had been purchased by her in Sy. No. 299.

When the suit was under trial, defendant No. 16 died, plaintiff filed an application seeking to bring her legal representatives on record. Respondent No. 1 herein Smt. Lakshmamma was one of the legal representatives along with her two brothers. Notice issued to respondent No. 1 herein on the application filed to bring her on record was returned with a shara that notices could not be served as full address was not furnished. Thereafter, on an application filed under Order V Rule 20 CPC, plaintiff was permitted to take out notice by way of sub-service by beat of tom-tom fixing the date of appearance. Based on the service of notice by beat of tom-tom, when respondent No. 1 herein Lakshmamma did not appear, the Trial Court placed Lakshmamma and her two brothers exparte and proceeded to hear and dispose of the suit.

Eventually the suit O.S. No. 330/1989 was decreed on 23.07.2003 granting 2/7th share to the plaintiff and 2/7th share to defendants 10 and 11, 1/7th share was allotted to defendant No. 12 and insofar as defendants 1 to 9 were concerned from whom defendant No. 16 claimed to have purchased the property, 2/7th share was allotted. Thereafter, final decree proceeding in F.D.P. No. 6/2004 was initiated on 25.03.2004.

In the said final decree proceedings, an order was passed on 25.04.2009 holding that defendant No. 16(a)/respondent No. 1 herein had knowledge of the entire proceedings in the original suit, despite which, she did not participate in the suit and contest the proceedings and therefore, she had no right to contend that final decree could not be drawn in terms of the preliminary decree drawn, particularly when she did not take any steps to challenge the preliminary decree.

It is also relevant to notice here that Lakshmamma-respondent No. 1 herein had filed a suit in O.S. No. 1065/2007 on 22.06.2007 seeking relief of declaration and permanent injunction in respect of the very property wherein she had made a reference to the decree obtained in O.S. No. 330/1989 by the plaintiff - revision petitioner contending inter alia that she had knowledge of the same three months prior to filing of the said suit.

It is relevant to notice here that after the order dated 25.04.2009 was passed in the Final Decree Proceedings, respondent No. 1 herein filed Misc. No. 51/2009 on 09.06.2009 along with an application seeking condonation of delay. The Court below heard both parties on the application filed for condonation of delay and by order dated 14.09.2009 condoned the delay imposing costs of Rs. 3,000/-. Petitioner herein has received the costs of Rs. 3,000/-. The order passed on 14.09.2009 has not been challenged. Therefore, it is clear that order condoning the delay in filing the miscellaneous petition has attained finality. Even in the present revision petition, there is no relief sought seeking to set aside the said order condoning the delay.

Eventually, by the impugned order, the Court below has allowed the miscellaneous petition and set aside the exparte judgment and decree passed in O.S. No. 330/1989 recording a finding that summons were not at all issued to the legal representatives of defendant No. 16 and procedure followed in placing them exparte by allowing application filed under Order V Rule 20 CPC was totally illegal. The Court below has also found that notice was not issued to the address where the legal representatives of deceased defendant No. 16 was residing and therefore, in terms of Order IX Rule 13 CPC, order placing them exparte and the exparte decree passed against them deserved to be set aside.

Learned counsel for the petitioner submits by placing reliance on the judgment of the Apex Court in the case of Mahabir Singh Vs. Subhash and Others, that as the Power of Attorney Holder of respondent No. 1 herein had admitted in the cross-examination that he had knowledge of the suit summons issued and that there was reference to the decree passed in the suit filed by respondent No. 1 herein in O.S. No. 1065/2007, the Court below committed an error in allowing the miscellaneous petition. He has also placed reliance on the judgment of this Court in the case of S.M. Education Society Vs. Sri. Haji Abdul Khaleel (since deceased by his LRs. Smt. Fahmeedunnissa, Sri Kaleemulla, Sri Nurulla and Sri Nasrulla) and Sri. Haji Abdul Shukur, to contend that mere irregularity in effecting service of summons, when defendant could be shown to have had the knowledge of the proceedings is not sufficient to exercise powers under Order IX Rule 13 CPC to set aside the decree passed exparte, unless prejudice was shown to have been caused.

It is submitted that in view of the preliminary decree passed making it clear that defendant No. 16 and her legal representatives were entitled to seek allotment of share in respect of land measuring 2 acres 5 guntas comprised in Sy. No. 299 in favour of defendants 1 to 9 in the final decree proceedings, the Court below was not at all justified in setting aside the entire decree as there was no claim in respect of Sy. No. 11/1 measuring 5 acres 24 guntas. In this regard, he has placed reliance on the judgment in the case of Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadhaji Patil, .

Learned counsel for respondent No. 1 has strongly supported the order passed by the Court below and has placed reliance on the judgment in the case of Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others, to contend that second proviso to Order IX Rule 13 CPC has no application in the instant case as respondent No. 1 herein had no knowledge of the date of hearing of the suit. He has also pointed out that order condoning delay has attained finality and costs have been received in a sum of Rs. 3,000/- by the petitioner herein.

Having heard the learned counsel for both parties, I find from the materials on record including the findings recorded by the Court below that after the death of defendant No. 16, though notice was issued to her legal representatives, defendants 16(a) to (c), notices were not served, they were returned on account of insufficient address of those defendants. Hence, the next course of action was to call upon the plaintiff to furnish correct address of defendants 16(a) to (c) and take out notice to their correct address. This procedure was not adopted. Plaintiff chose to file an application to take out substituted service by beat of tom-tom which was allowed by the Court below. It is, in this background, the Court below has rightly held that there was no service of notice of the proceedings on the legal representatives of deceased - defendant No. 16. Legal representatives of defendant No. 16 did not have an opportunity to participate in the proceedings as they were not notified of the date of hearing of the suit. It is this factor which has weighed in the mind of the Court below to come to the conclusion that there was no notice of the proceedings to defendant No. 16(a) to (c).

Order IX Rule 13 CPC mandates that if a decree is passed exparte against the defendant who applies to the Court seeking to set aside the same and satisfies the Court that summons was not duly served, then the Court shall make an order setting aside the decree as against him on certain terms. Second proviso to Order IX Rule 13 states that no Court shall set aside the decree passed exparte merely on the ground that there was irregularity in the service of summons, if it is satisfied that the defendant had notice of the hearing and had sufficient time to appear and answer the plaintiff''s claim. In the instant case, there is no material elicited or placed before the Court to hold that defendants 16(a) to (c) had notice of the date of hearing and had sufficient time to appear and answer plaintiff''s claim.

The first notice issued had been returned with shara �insufficient address'' and the second notice was not a notice at all in the eye of law because without recording any satisfaction regarding pre-requisites required under Order V Rule 20 CPC, the Court proceeded to order sub-service by beat of tom-tom. In such circumstances, the Court below was right and justified in passing the impugned order because the second proviso to Order V Rule 20 CPC has no application to the facts of the case.

Learned counsel for respondent No. 1 is right and justified in relying on the judgment in the case of SUSHU KUMAR SABHARWAL referred to supra in this connection. Judgment on which learned counsel for the petitioner has placed reliance will not come to his aid because of the factual matrix referred to above.

So far as condonation of delay is concerned, no challenge has been made to the order passed condoning the delay and indeed revision petitioner has received costs of Rs. 3,000/- and has felt satisfied after the delay was condoned. Hence, the petitioner cannot be now permitted to assail the said order. In fact, he has not challenged the said order even in this revision petition.

Learned counsel for the petitioner is right and justified in contending that entire decree could not have been set aside as interest of defendant No. 16 was confined only to Sy. No. 299. The decree of partition is passed even in respect of Sy. No. 11/1 over which defendant No. 16 or for that matter her legal representatives have no interest. Therefore, the decree of partition in respect of Sy. No. 11/1 ought not to have been set aside by the Court below. To this extent, the order under challenge deserves to be interfered with.

In the result and for the foregoing, this revision petition is partly allowed. Order dated 05.03.2012 passed in Misc. No. 51/2009 is set aside with regard to Sy. No. 11/1 is concerned. The decree passed in O.S. No. 330/1989 is restored in respect of Sy. No. 11/1 measuring 5 acres 24 guntas and the parties would be free to execute the same in accordance with law by pursuing the final decree proceedings. Insofar as Sy. No. 299 measuring 6 acres 5 guntas, order passed in Misc. No. 51/2009 is confirmed. Revision Petitioner and respondent No. 1 herein are directed to appear before the Trial Court in O.S. No. 330/1989 on 08.10.2015. The Trial Court is directed to dispose of the case as expeditiously as possible, at any rate, within a period of eight months from the date of receipt of a copy of this order having due regard to the fact that the suit is of the year 1989.