SMT. NEELAMMA v. Location: HIGH

Judgment

1. Location: HIGH COURT OF KARNATAKA SRI J. SHANKAR S/O LATE UMMANNA POOJARI, AGED ABOUT 83 YEARS, MANAGING DIRECTOR, SOLAR AUTOMOBILE INDIA PRIVATE LIMITED., NO.6, ST. JOHNS ROAD, BENGALURU-560 042.

2. SMT. GOWRAMMA SINCE DEAD BY HER LRS 2(a) SMT. USHA D/O LATE SRINIVASA REDDY, AGED ABOUT 39 YEARS, RESIDING AT NO.29, 1ST CROSS, 1ST STAGE, - 2 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 OPP SAI MEDICALS, OKALIPURAM, BENGALURU-21 2(b) SMT. SUNANDA D/O LATE SRINIVASA REDDY, AGED ABOUT 53 YEARS, 2(c) SMT. SAROJA D/O LATE SRINIVASA REDDY, W/O SRI. SURESH REDDY AGED ABOUT 45 YEARS, NOS.2(b) AND 2(c) ARE RESIDING AT NO.6, GARVEBHAVI PALYA, BEHIND BRIGHT FUTURE ENGLISH SCHOOL, BEGUR HOBLI, BENGALURU SOUTH TALUK BENGALURU-560068. 2(d) SMT. VIMALA W/O AYAPPA REDDY D/O LATE SRINIVASA REDDY, AGED ABOUT 51 YEARS R/AT NO.442, 10TH MAIN ROAD, 2ND CROSS, DODDABANASWADI, KALYANANAGAR 1ST BLOCK BENGALURU-560 043 2(e) SMT. BHAGYA W/O SRI. MUNI REDDY D/O LATE SRINIVASA REDDY, AGED ABOUT 49 YEARS R/AT ALANAYAKANAHALLI, SARJAPURA HOBLI, BENGALURU SOUTH TALUK BENGALURU. 2(f) SMT. S. ANASUYAMMA AGED ABOUT 43 YEARS D/O. LATE SUNDER RAM REDDY, - 3 - NC: 2024:KHC:5542 MFA No. 8204 of 2018

2(g) SRI.S.MANJUNATH REDDY S/O LATE SUNDER RAM REDDY, AGED ABOUT 43 YEARS 2(h) SMT. CHANDRAKALA D/O LATE SUNDER RAM REDDY, AGED ABOUT 40 YEARS NOS.2(f) TO 2(h) ARE RESIDING AT NO.61, SOUTH END MAIN ROAD, BASAVANAGUDI, BENGALURU-04. …RESPONDENTS [BY SRI B.L. ACHARYA, SENIOR COUNSEL FOR SRI ROHAN BABU JOSEPH, ADVOCATE FOR R1; NOTICE TO R2(a & b) ARE DISPENSED WITH VIDE ORDER DATED 15.12.2018; NOTICE TO R2 (c to h) ARE DISPENSED WITH VIDE ORDER DATED 19.12.2018] THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CPC, AGAINST THE ORDER DT.19.07.2018 PASSED IN MISC.NO.616/2013 AND ALSO JUDGMENT AND DECREE (IN O.S.NO.4911/2012) ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY (CCH-6), DISMISSING THE PETITION FILED U/O.9 RULE 13 R/W SEC.151 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 JUDGMENT

1. Heard learned counsel for appellant and also learned counsel for respondents.

2. This Miscellaneous First Appeal is filed rejection of the petition filed by the appellant under Order 9 Rule 13 R/w Section 151 of CPC wherein the appellant prayed the Court to set-aside judgment and decree passed in O.S.No.4911/2012.

3. The factual matrix of the case of the plaintiff before the Trial Court in O.S.No.4911/2012 against the appellant herein the relief of declaration and permanent injunction that he had purchased the property and he has been put in possession and inspite of it the defendant/appellant herein causing obstruction and interfering with the possession and hence he has sought for the relief of declaration and permanent injunction. The notice was issued against the appellant herein and the same was returned with an endorsement that he has - 5 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 refused to receive the suit summons and the said endorsement is made by the Court Ameena. The Trial Court proceeded consider respondent/plaintiff and decreed the suit vide judgment dated 30.10.2012 granting the relief of permanent injunction and declined to grant the relief of declaration. Being aggrieved by the said order, miscellaneous proceedings initiated by the appellant herein and the same is resisted by the respondent by filing the objections. Hence, the present appellant has been examined as PW1 and got marked document Ex.P1 to Ex.P5 and also the respondent No.1 has been examined as RW1.

4. The Trial Court having considered the material on record, particularly evidence of PW1, comes to the conclusion that he has not taken any steps to examine the said Ameena and ought to have examined the Court bailiff to prove the allegation made against him. The petitioner has not taken any pain to call said bailiff to Court and putting in witness purpose - 6 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 cross-examination for the reason best known to her. The Trial Court also taken note of admission given by PW1 in the cross-examination wherein he has stated that she came to know about the filing of suit on 30.08.2012 and respondent No.1 filed police complaint and hence the very contention of the appellant herein is falsified in view of admission and also considered the Ex.P5, the same falsifies the case of the petitioner and material shows that the petitioner has knowledge regarding disposal of O.S.No.4911/2012 as on 30.08.2012 and not on the date as contended by her in the miscellaneous petition and that much prior to filing of miscellaneous petition, the petitioner has the knowledge about passing of judgment and hence, not made out any ground and dismissed the miscellaneous Petition.

5. The counsel appearing for the appellant would vehemently contend that the Trial Court committed an error in relying upon the stray admission with regard to the knowledge of the suit filed by the respondent and also - 7 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 the counsel would vehemently contend that in order to prove the fact that the respondent is colluding with the Court Ameena, got the endorsement and in the cross- examination of RW1, he categorically admitted that he is not having acquaintance with Ameena who had been appointed in the said case and also never met the said Ameena and not assisted him and also do not know as to when the Ameena served the notice and also not signed the said summons, but when the document Ex.P5 is confronted to the witness, he admits the signature found in the Ex.P5, but he says he do not remember where he has signed the Ex.P5 and he did not know at which address the notice was served to the present appellant and also does not know the contents of shara in Ex.P5. The counsel referring this admission contend that when he was cross examined he says that he was not having any acquaintance with the Ameena and denied everything even with regard to the fact that he had not assisted the Ameena in service of notice. The signature of the plaintiff found in Ex.P5 and there is no any explanation and what - 8 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 made to get the signature of plaintiff in the summons issued against the defendant is not been explained.

6. The counsel in support of his argument he relies upon the judgment 1975 SCC ONLINE KAR 125 in case of B.Padmavathi Rai V/s V.Parvathiamma and the counsel brought to notice of this Court paragraph No.4 wherein this Court taken note of Court below has proceeded on the assumption that letter tendered by the postman to the defendant about 8 months earlier, was the summons issued in the suit. That conclusion was reached on the knowledge attributed to the defendant about the pending suit. It seems to me that conclusion is untenable. There was no basis to hold that letter tendered by the postman was the registered notice containing the suit summons. The defendant was examined on 30.07.1974. Eleven months earlier, goes back to the month of

30.08.1973, whereas the alleged date of refusal of summons was on 04.06.1973. Secondly, the indirect knowledge of the defendant about the pending litigation is - 9 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 irrelevant for the purpose of determining the sufficiency of the service. The service may be held to be sufficient only on the proof of delivery of, or refusal to receive the summons. The counsel also brought to notice of this Court paragraph No.5 wherein also the Court observed that there was one other error committed by the Court below. It has put the burden on the defendant to examine the postman in order to rebut the presumption available on under Order 5 Rule 10 of CPC. But the law is other way about. When the defendant has examined herself and stated that she had not refused to receive the letter, the prima facie presumption of the proof of service has disappeared, and it would be then for the plaintiff to produce cognet evidence to prove the ‘shara’ made by the postman. The counsel by referring these paragraph Nos.4 and 5 would vehemently contend that the Trial Court committed an error in not considering the evidence of RW1 while rejecting the petition and not discussed anything about the evidence of RW1 except considering the evidence of PW1 and even not relied upon the evidence of - 10 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 RW1 in the order passed by the Trial Court. Hence, it requires interference.

7. Per Contra, the counsel appearing for the respondent in his argument would vehemently contend that the property was purchased in the year 1993 from the mother who represented through a power of attorney holder and also counsel would submits that after 10 years, the very same mother gifted the property in favour of the appellant herein. The Trial Court having taken note of the material, though not granted the relief of declaration and granted the relief of permanent injunction in coming to the conclusion that the respondent is in possession of the property. The counsel would vehemently contend that when the appellant contend that the judgment and decree is obtained by fraud, the burden is on the appellant to prove the same.

8. The counsel for respondents relied upon the judgment reported in (2011) 3 SCC 545 in case of Parimal V/s Veena Alias Bharti wherein the Apex Court - 11 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 held that no attempt made to establish that there had been fraud and collusion between the appellant’s husband and postman. The counsel also brought to notice of this Court the relevant paragraph i.e., para No.11 wherein discussion is made with regard to the proviso Order 9 Rule 13 of CPC and also paragraph No.12 wherein an observation is made that however the Court shall not set-aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the Court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

9. The counsel also brought to notice of this Court paragraph No.22 wherein held that High Court held that the presumptions stood rebutted by a bald statement made by the respondent wife that she was living at - 12 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 different address with her brother and this was duly supported by her brother who appeared as a witness in the Court. The High Court erred in not appreciating the facts in the correct prospective as substituted service is meant to the resorted to serve the notice at the address known to the parties where the party had been residing last. The counsel also brought to notice of this Court with regard to the fraud and collusion wherein held that it is nobodies case that respondent’s wife made any attempt to establish that there had been a fraud and collusion between the appellant and postman. Not a single document had been summoned from the post office. No attempt has been made by the respondent’s wife to examine the postman. The counsel referring this also contend that no attempt is made to examine the Ameena against whom an allegation is made that he colluded with the plaintiff and made an endorsement. The counsel also brought to notice of this Court paragraph Nos.27 and 29 wherein clear discussion is made in coming to the conclusion that the matter does not fall within the four - 13 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 corners of Order 9 Rule 13 of CPC, the court has no jurisdiction to set-aside an ex-parte decree. The counsel referring this judgment would vehemently contend that when the specific allegation is made against the Ameena, he has not been examined and judgment of the Apex Court is aptly applicable to the case on hand.

10. Having heard the appellant’s counsel and also the counsel appearing for the respondents and also taking into note of the principles laid down in the judgment of this Court as well as the judgment of the Apex Court, no doubt in the case when any allegation is made with regard to fraud or collusion, the person who pleads has to prove the same. In the case on hand, no doubt the appellant has not examined the Ameena with regard to the allegation of making an endorsement that the defendant has refused to receive the summons. In the cross-examination also the PW1 admits with regard to notice of suit wherein it is admitted that on 30.08.2012 when respondent No.1 filed police complaint, to know regarding - 14 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 O.S.No.4911/2012, the same has been considered by the Trial Court in paragraph No.12 of order of miscellaneous petition.

11. Having perused the evidence of PW1 and also the order of the Trial Court and the fact that even the respondent/plaintiff is also examined before the Trial Court, the Trial Court even not touched upon the evidence of RW1 while considering whether ex-parte judgment and decree passed in O.S.No.4911/2012 is liable to be set- aside and the Trial Court did not choose to even rely upon the evidence of RW1 and nothing is discussed in the order passed by Trial Court with regard to the evidence of RW1. It is important to note that the RW1/plaintiff has been examined before the Trial Court. No doubt an affidavit is filed in support of his contention and he was also cross examined and in the cross-examination, he admits that after obtaining exparte judgment, he has filed complaint dated 10.09.2013 against present petitioner before Madivala Police Station and hence the admission of PW1 is - 15 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 immaterial with regard to earlier knowledge. It important to note that when the specific allegation is made against the Ameena and cross-examination was made in respect of whether he was having any acquaintance with Ameena, but in paragraph No.3 of cross-examination, RW1 categorically admits that he does not know the name of Ameena who was appointed to serve the summons in O.S.No.4911/2012. He further says that he never met the said Ameena. He had not assisted the said Ameena, he does not know as to when the said Ameena served notice. He has also not signed the shara written by the Ameena. When the document of summons was confronted to RW1 which is marked as Ex.P5 wherein the Ameena has made an endorsement that the defendant was refused to receive the notice, but found the signature of plaintiff. RW1 admits the same in the cross-examination that Ex.P5 contains his signature, but no explanation on the spot as and when he signed the Ex.P5. He does not know at which address the notice has to be served to present appellant. He does not know the contents of shara on Ex.P5. This admission has - 16 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 not been discussed by the Trial Court and even not looked into the evidence of RW1. Even inspite of non examination of Ameena, the very answer elicited from the mouth of RW1 is very clear that though he contend that he never met Ameena and also not assisted him in service of notice, but, when the document is confronted to him, he categorically admitted that the signature found in the Ex.P5. The Ex.P5 is the summons which was issued to the defendant. No explanation how come he has signed the document of Ex.P5. Hence, the very answer elicited from the mouth of RW1 is very clear that an endorsement is obtained with the collusion with the Ameena, the same has even not been discussed by the Trial Court. Even in the absence of evidence of Ameena, if answer elicited from the mouth of RW1 is considered by the Trial Court and the Trial Court in a ingenious method not discussed the evidence of RW1. The Trial Court only discussed the evidence of the PW1 and taking note of admission given that when respondent No.1 has filed police complaint, she came to know about O.S.No.4911/2012 comes to the - 17 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 conclusion that he had a knowledge and also not examined the Ameena, but not considered the material available on record particularly the admission given by RW1. The said circumstances goes against the plaintiff in one breath he says that he is not having acquaintance with Ameena and even he does not know who was appointed as Ameena, but he signed the summons issued against the defendant, when it was in the custody of Ameena. This fact has not been considered by the Trial Court. Hence, the Trial Court committed an error in not considering the evidence of RW1 and erroneously comes to the conclusion that Ameena has not been examined. When the answer elicited from the mouth of RW1 itself is sufficient to comes to the conclusion that there is a force in the contention of the appellant that endorsement is obtained at the instance of the Ameena that the defendant has refused to receive the suit summons. Hence, the Trial Court ought to have granted the relief as sought by invoking provision under Order 9 Rule 13 of CPC and sufficient reason has been shown and answer elicited from the mouth of RW1 itself is sufficient - 18 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 to set-aside the judgment and decree of the Trial Court. Hence, it is a fit case to exercise the power under Order 9 Rule 13 of CPC and the Trial Court committed an error.

12. In view of the discussions made above, I pass the following: ORDER The Miscellaneous First Appeal is allowed. The impugned order passed by the Trial Court in Misc.No.616/2013 is set-aside. i) ii) iii) The judgment and decree passed by the Trial Court in O.S.No.4911/2012 is also set-aside. iv) The Trial Court is directed to give an opportunity the appellant herein and consider the case of appellant by giving an opportunity to file written statement within one month from the first appearance, since the suit is of the year 2012. Hence, it is appropriate to give a direction to the Trial Court to decide the same in a time bound period that is within a period of one from 11.03.2024. - 19 - NC: 2024:KHC:5542 MFA No. 8204 of 2018 v) The parties are directed to appear before the Trial Court on 11.03.2024 without expecting any notice from the Trial Court. Both parties and respective counsel are directed to assist the Trial Court in disposal of suit within stipulated time. vi) The appellant is directed to pay the cost of Rs.10,000/-(Rupees Ten Thousand only) to the respondent on or before 11.03.2024. vii) The appellant counsel has filed an application under Order 41 Rule 27 of CPC and the same does not require for consideration of the case and that is only an endorsement with regard to the non filing of the complaint before the concerned police. Hence, I.A is rejected. RHS List No.: 1 Sl No.: 30 Sd/- JUDGE