G.N.R. BABU @ S.N. BABU versus DR. B.C. MUTHAPPA & ORS.

G.N.R. BABU @ S.N. BABU

DR. B.C. MUTHAPPA & ORS.

(Civil Appeal No. 6228 of 2022)

SEPTEMBER 06, 2022

[AJAY RASTOGI AND ABHAY S. OKA, JJ.]

Code of Civil Procedure, 1908 – ss.96, 105 & Or.IX, r.13 –Ex-parte decree against defendant – Appeal u/s.96 – Scope ofadjudication – Ex-parte decree was passed against the appellant-defendant in the suit filed by first respondent – Plea of the appellantthat the High Court in appeal u/s.96 while confirming the decreeon merits proceeded on the basis that the issue regarding the failureto serve the suit summons can be agitated only in an applicationfiled for setting aside ex-parte decree by invoking r.13 of Or.IX –Correctness of – Held: The appellant while challenging ex- partedecree by filing an appeal, can always point out from the record ofthe trial court that the order passed to proceed with the suit ex-parteagainst him was illegal – Though he would not be entitled to leadevidence in appeal for making out sufficient cause for his absencebefore the trial court, he can always argue on the basis of the recordof the suit that either the suit summons was not served upon him orthat even otherwise also, the trial court was not justified inproceeding ex-parte against him – Only when the application madeby defendant u/r.13 of Or. IX is dismissed that such defendantcannot agitate in the appeal against ex-parte decree that the orderdirecting that the suit shall proceed ex-parte was illegal or incorrect– However, in the present case, the appellant had not filedapplication u/r.13 of Or.IX, therefore, such contention can be raisedby him – Also, on facts proceeding ex-parte against the appellantwas not warranted – Impugned order passed by the High Court aswell as the decree of the Trial Court set aside – Further, on facts theprayer for remand of the suit is accepted – Appellant to pay costsof Rs.2,00,000/- to the first respondent – Original suit restored.

Code of Civil Procedure, 1908 – s.105 – Held: Under s.105when decree is appealed from, any error, defect or irregularity inany order affecting the decision of the case can be set forth as aground of objection in the Memorandum of Appeal.

ACode of Civil Procedure, 1908 – Or.V, r.17 – Requirementunder – Non-fulfillment of – Ex-parte decree passed against theappellant and second respondent observing that they did not appeardespite the service of summons – Held: Record shows that an attemptto serve summons by the regular mode failed as the premises of theappellant were found to be locked – Trial Court did not directBaffixing of copy of the summons on the outer door of the premisesin which the appellant was residing, as required by r.17 of Or.V –Without verifying whether the address of the appellant, as shown inthe cause title of the suit was correct, summons was ordered to beserved through Registered Post AD – Decree set aside.CPartly allowing the appeal, the CourtHELD: 1.1 In this case, the question is when the defendantdid not avail the remedy under Rule 13 of Order IX of CPC,whether it is open for him to agitate in the regular appeal againstthe decree that the trial court had no justification for proceedingDex parte against the appellant. In such case, though the appellantwould not be entitled to lead evidence in appeal for making out asufficient cause for his absence before the trial court, he can alwaysargue on the basis of the record of the suit that either the suitsummons was not served upon him or that even otherwise also,Ethe trial court was not justified in proceeding ex parte againsthim. The reason is that under Section 105 of CPC, when decreeis appealed from, any error, defect or irregularity in any orderaffecting the decision of the case can be set forth as ground ofobjection in the Memorandum of Appeal. Thus, in such case,the appellant can always urge in an appeal against the decreeFthat an interim or interlocutory order passed during the pendencyof the suit affecting the decision of the case was illegal. Therefore,the appellant, while challenging ex parte decree by filing an appeal,can always point out from the record of the trial court that theorder passed to proceed with the suit ex parte against him wasGillegal. As held in the case of Bhanu Kumar Jain, only when theapplication made by defendant under Rule 13 of Order IX ofCPC is dismissed that such defendant cannot agitate in theappeal against ex-parte decree that the order directing that thesuit shall proceed ex- parte was illegal or incorrect. However, inthis case, the appellant has not filed application under Rule 13 ofH

Order IX of CPC. Therefore, such contention can be raised byhim. [Para 8][210-F-H; 211-A-C]

Bhanu Kumar Jain v. Archana Kumar & Anr. (2005) 1SCC 787 : [2004] 6 Suppl. SCR 1104 – relied on.

1.2 On facts of the case in hand, it is found that there is anoting in the order sheet of the trial court dated 27th October2014 that the summons issued to the appellant and secondrespondent was returned unserved with the remark that theirrespective premises were locked. However, on 05th January2015, the trial court ordered issue of summons by RegisteredPost Acknowledgement Due at the same address. The ordersheet of 05th March 2015 records that the summons sent to theappellant and the second respondent by post was returned withthe remarks “Intimation Delivered”. Thus, the record shows thatan attempt to serve summons by the regular mode failed as thepremises of the appellant were found to be locked. The trial courtdid not direct affixing of copy of the summons on the outer doorof the premises in which the appellant was residing, as requiredby Rule 17 of Order V of CPC. Without verifying whether theaddress of the appellant, as shown in the cause title of the suitwas correct, summons was ordered to be served throughRegistered Post AD. Therefore, there was no warrant forproceeding ex parte against the appellant. Moreover, it is foundfrom the rejoinder that multi-storeyed building consisting ofground plus four floors has been constructed on the suit propertyand the residential premises in the building on the suit propertyhave been occupied by different persons. As noted earlier, thereis decree passed for the demolition of the building constructedon the suit property. This is one more reason to accept the prayerfor remand of the suit. The suit was instituted in the year 2014.As result of passing an order of remand, the disposal of the suitfiled by the first respondent will be delayed. Therefore, theappellant will have to be saddled with costs quantified atRs.2,00,000/- (Rupees two lacs only). Though no adjudication isbeing made on the issue whether the occupants of the buildingare necessary parties to the suit, liberty will have to be grantedto the first respondent, if he so desires, to implead the personsin possession of the premises in the building constructed on the

Asuit property. The impugned judgment and order passed by theHigh Court as well as the impugned judgment and decree datedpassed by the learned Judge of the City Civil Court at Bangaloreare set aside. Original Suit No.6610 of 2014 is restored to thefile of the City Civil Court, Bangalore. The first respondent shallbe entitled to costs quantified at Rs.2,00,000/- (Rupees two lacsBonly) from the appellant. The payment of costs shall be thecondition precedent. [Paras 9-11, 13][211-D-H; 212-A-C, F]

Bhivchandra Shankar More v. Balu Gangaram More& Ors. (2019) 6 SCC 387 : [2019] 7 SCR 298 –referred to.C

Case Law Reference

DCIVIL APPELLATE JURISDICTION: Civil Appeal No. 6228of 2022.

From the Judgment and Order dated 22.03.2016 of the High Courtof Karnataka at Bengaluru in R.F.A. No. 494 of 2016.

Anand Sanjay M. Nuli, Dharm Singh, Suraj Kaushik, NandaEKumar K.B., M/s Nuli & Nuli, Advs. for the Appellant.

Arvind Kamath, Sr. Adv., Shivram Jasra, Bhargava V. Desai,Ms. Charu Modi, S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni,Ms. Uditha Chakravarthy, Advs. for the Respondents.

The Judgment of the Court was delivered byFABHAY S. OKA, J.

1. Leave granted.

2. The appellant, who is the original first defendant, has taken anexception to the judgment and order dated 22[nd] March 2016 passed byGthe High Court of Karnataka in an appeal being R.F.A.No.494 of 2016preferred under Section 96 of the Code of Civil Procedure, 1908 (forshort ‘CPC’).

3. The first respondent who is the original plaintiff, filed suit inthe City Civil Court at Bangalore (now Bengaluru) for declaration

that he was the absolute owner of the property subject matter of the suitcomprising of Site No.28 at BTM Layout, Bangalore. Site No.28,according to the first respondent, consisted of lands bearing survey nos.56,57 and 60 of Bilkenahalli Village and survey nos.61, 71 and 72 of N.S.Palya Village, Bangalore South Taluk, Bangalore. Site No.28 is hereinafterreferred as “the suit property”. Apart from claiming declaration ofownership, the first respondent contended that structure erected bythe appellant on the suit property was illegal and therefore, decreewas sought for removal of the structure. The other two respondents inthis appeal were the second and third defendants respectively. The learnedJudge of the City Civil Court at Bangalore, by his judgment and orderdated 19[th] September 2015, passed declaratory decree by declaringthe first respondent as the owner of the suit property. decree was alsopassed directing the appellant and the second respondent to remove thestructure on the suit property. The appellant and the second respondentwere also restrained by decree of perpetual injunction from entering inthe suit property and from interfering with the peaceful possession andenjoyment thereof by first respondent. In paragraph 20 of the saidjudgment, the learned trial Judge observed that the appellant and secondrespondent did not appear despite the service of summons and did notcontest the suit. By the impugned judgment and order, the High Courtconfirmed the decree on merits.

4. In support of the appeal, apart from raising various contentionson merits of the decree, the learned counsel for the appellant Shri AnandSanjay M. Nuli urged that appellant’s address mentioned in the causetitle of the suit was incorrect and on the date of institution of the suit, hewas residing at another address set out in the grounds of appeal.Therefore, the suit summons was not duly served upon the appellant.

5. The learned counsel appearing for the appellant submitted thatthe High Court proceeded on erroneous basis that the issue regardingthe failure to serve the suit summons can be agitated only in an applicationfiled for setting aside ex parte decree by invoking Rule 13 of Order IXof CPC. The submission of the learned counsel appearing for theappellant is that on the basis of the record of the suit, the appellant couldalways point out that the service of summons was not effected or that itwas otherwise illegal to proceed ex parte against him. He would furthersubmit that as can be seen from the rejoinder filed by the appellant, amulti- storeyed building consisting of ground and four upper floors has

Abeen constructed by the appellant on the suit property long back and thebuilding is occupied by the purchasers of the premises therein. Hesubmitted that there is very drastic decree passed for demolition of thesaid building constructed on the suit property without impleading thepurchasers of the premises therein as parties. He would, therefore, urgethat by setting aside the decree of the trial court, the suit be remandedBfor fresh adjudication.

6. Shri Arvind Kamath, the learned senior counsel appearing forthe first respondent-plaintiff submitted that the third respondent-BangaloreDevelopment Authority was the owner of the suit property and that thefirst respondent is the allottee of the suit property from the third respondent.CHe submitted that the sale deed on the basis of which the appellant isclaiming ownership is in respect of some other property, as can be seenfrom the description of the property in the sale deed. The learned seniorcounsel relied upon decision of this Court in the case of Bhanu KumarJain v. Archana Kumar & Anr.[1]in support of his contention that in anDappeal against an ex parte decree, the appellant-defendant can challengethe decree only on merits. If he wants to challenge the decree either onthe ground that summons was not duly served to him or that he wasprevented by sufficient cause from appearing in the suit, his remedy is toapply under Rule 13 of Order IX of CPC. He also relied upon anotherdecision of this Court in the case of Bhivchandra Shankar More v.EBalu Gangaram More & Ors.[2]in which the decision of this Court inthe case of Bhanu Kumar Jain[1]was followed. He submitted that it isnot open for the appellant to challenge the decree of the trial court onthe ground that summons was not duly served as he has not filed anapplication for setting aside the decree. He submitted that there is

Fconcurrent finding of the trial court and High Court that the first respondenthas established his title and ownership over the suit property and that thebuilding constructed thereon is completely illegal. The learned seniorcounsel, therefore, urged that the present appeal be dismissed.

7.We have given careful consideration to the submissions. Firstly,Gwe will deal with the scope of adjudication in an appeal preferred underSection 96 of CPC by defendant against whom the trial court hasproceeded ex parte and decree has been passed. In the case of BhanuKumar Jain[1] Bench of three Hon’ble Judges of this Court dealt with

1 (2005) 1 SCC 787H2 (2019) 6 SCC 387

G.N.R. BABU @ S.N. BABU v. DR. B.C. MUTHAPPA & ORS.

case where an application for setting aside ex parte decree was filedby defendant under Rule 13 of Order IX of CPC. The said applicationwas dismissed. Even an appeal preferred against the order of dismissalof the said application was dismissed. An appeal under Section 96 ofCPC was also preferred by the said defendant. The submission beforethis Court was that the subject matter of the application under Rule 13of Order IX of CPC and the subject matter of the appeal against decreebeing the same, it is against the public policy to allow two parallelproceedings to continue simultaneously. In paragraph 23 of the decision,this Court noted that the question before it was whether an appeal againstex parte decree was maintainable despite the fact that an applicationunder Rule 13 of Order IX of CPC was dismissed. Paragraphs 24 to 27of the said decision read thus :

“24. An appeal against an ex parte decree in terms of Section96(2) of the Code could be filed on the following grounds

(i) the materials on record brought on record in the ex parteproceedings in the suit by the plaintiff would not entail decreein his favour, and

(ii) the suit could not have been posted for ex parte hearing.

25. In an application under Order 9 Rule 13 of the Code, however,apart from questioning the correctness or otherwise of an orderposting the case for ex parte hearing, it is open to the defendant tocontend that he had sufficient and cogent reasons for not beingable to attend the hearing of the suit on the relevant date.

26. When an ex parte decree is passed, the defendant (apartfrom filing review petition and suit for setting aside theex parte decree on the ground of fraud) has two clear options,one, to file an appeal and another to file an application forsetting aside the order in terms of Order 9 Rule 13 of theCode. He can take recourse to both the proceedingssimultaneously but in the event the appeal is dismissed as aresult whereof the ex parte decree passed by the trial courtmerges with the order passed by the appellate court, havingregard to Explanation appended to Order 9 Rule 13 of theCode petition under Order 9 Rule 13 would not bemaintainable. However, Explanation I appended to the saidprovision does not suggest that the converse is also true.

27. In an appeal filed in terms of Section 96 of the Code havingregard to Section 105 thereof, it is also permissible for an appellantto raise contention as regards correctness or otherwise of aninterlocutory order passed in the suit, subject to the conditions laiddown therein.”

[Emphasis added]

This Court held that though after dismissal of an appeal underSection 96 of CPC against ex parte decree, application under Rule 13of Order IX of CPC will not be maintainable, there is no bar onunsuccessful defendant adopting both the remedies simultaneously. InCsuch case, if the regular appeal against the decree is dismissed, obviouslythe application under Rule 13 of Order IX of CPC cannot proceed.

The reason is that explanation to Rule 13 of Order IX of CPClays down that where there has been an appeal against decree passedex parte and the appeal has been disposed of on any ground other thanDwithdrawal, application for setting aside ex parte decree will not lie.However, in the event an application under Rule 13 of Order IX ofCPC is dismissed, the defendant can prosecute the appeal against thedecree as right to prefer appeal under Section 96 cannot be takenaway in absence of any express provision to the contrary in CPC. Inparagraph 38 of the aforesaid decision, this Court held that whenEapplication under Rule 13 of Order IX of CPC filed by defendant isdismissed, the defendant cannot be permitted to raise contention asregards the correctness or otherwise of the order posting the suit for exparte hearing and/or existence of sufficient cause for non-appearanceof the defendant.

8. In this case, the question is when the defendant did not availthe remedy under Rule 13 of Order IX of CPC, whether it is open forhim to agitate in the regular appeal against the decree that the trial courthad no justification for proceeding ex parte against the appellant. Insuch case, though the appellant would not be entitled to lead evidenceGin appeal for making out sufficient cause for his absence before thetrial court, he can always argue on the basis of the record of the suit thateither the suit summons was not served upon him or that even otherwisealso, the trial court was not justified in proceeding ex parte against him.The reason is that under Section 105 of CPC, when decree is appealedfrom, any error, defect or irregularity in any order affecting the decision

of the case can be set forth as ground of objection in the Memorandumof Appeal. Thus, in such case, the appellant can always urge in anappeal against the decree that an interim or interlocutory order passedduring the pendency of the suit affecting the decision of the case wasillegal. Therefore, the appellant, while challenging ex parte decree byfiling an appeal, can always point out from the record of the trial courtthat the order passed to proceed with the suit ex parte against him wasillegal. As held in the case of Bhanu Kumar Jain[1], only when theapplication made by defendant under Rule 13 of Order IX of CPC isdismissed that such defendant cannot agitate in the appeal against exparte decree that the order directing that the suit shall proceed ex partewas illegal or incorrect. However, in this case, the appellant has not filedapplication under Rule 13 of Order IX of CPC. Therefore, such acontention can be raised by him.9. Now coming to the facts of the case in hand, we find that thereis noting in the order sheet of the trial court dated 27[th] October 2014that the summons issued to the appellant and second respondent wasreturned unserved with the remark that their respective premises werelocked. However, on 05[th] January 2015, the trial court ordered issue ofsummons by Registered Post Acknowledgement Due at the sameaddress. The order sheet of 05[th] March 2015 records that the summonssent to the appellant and the second respondent by post was returnedwith the remarks “Intimation Delivered”. Thus, the record shows thatan attempt to serve summons by the regular mode failed as the premisesof the appellant were found to be locked. The trial court did not directaffixing of copy of the summons on the outer door of the premises inwhich the appellant was residing, as required by Rule 17 of Order V ofCPC. Without verifying whether the address of the appellant, as shownin the cause title of the suit was correct, summons was ordered to beserved through Registered Post AD. Therefore, in our view, there wasno warrant for proceeding ex parte against the appellant.

10. Moreover, we find from the rejoinder that multi- storeyedbuilding consisting of ground plus four floors has been constructed onthe suit property and the residential premises in the building on the suitproperty have been occupied by different persons. As noted earlier, thereis decree passed for the demolition of the building constructed on thesuit property. This is one more reason why we are inclined to accept theprayer for remand of the suit. The suit was instituted in the year 2014.

AAs result of passing an order of remand, the disposal of the suit filedby the first respondent will be delayed. Therefore, the appellant willhave to be saddled with costs quantified at Rs.2,00,000/- (Rupees twolacs only). Though we are not making any adjudication on the issuewhether the occupants of the building are necessary parties to the suit, aliberty will have to be granted to the first respondent, if he so desires, toBimplead the persons in possession of the premises in the buildingconstructed on the suit property.

11.Accordingly, the present appeal is partly allowed. The impugnedjudgment and order dated 22[nd] March 2016 passed by the High Court aswell as the impugned judgment and decree dated 19[th] September 2015Cpassed by the learned Judge of the City Civil Court at Bangalore arehereby set aside. Original Suit No.6610 of 2014 is restored to the file ofthe City Civil Court, Bangalore.

12. The parties to the appeal shall mark their presence before thelearned Principal Judge, City Civil Court at Bangalore on Monday, theD26[th] September 2022 at 10:30 a.m. It will be open to the Principal Judgeof the City Civil Court to transfer the suit for disposal to any of theJudges of the City Civil Court. The appellant shall file his written statementwithin maximum period of one month from 26[th] September 2022. Underno circumstances, the appellant shall be granted extension of time to file

Ewritten statement. Considering the fact that the suit is of the year 2014,the trial court shall endeavour to give necessary priority to the disposal ofthe suit.

13. The first respondent shall be entitled to costs quantified atRs.2,00,000/- (Rupees two lacs only) from the appellant. The paymentFof costs shall be the condition precedent. The appellant shall either directlypay the costs amount to the first respondent and produce the receiptthereof within four weeks from today or shall deposit the costs amountwith the City Civil Court within four weeks from today.

GDivya Pandey

Appeal partly allowed.