MS RAHAMATH BEE v. MR AHESAN PASHA

3. This appeal is filed by the defendants in O.S.No.4252 of 2015 assailing the ex parte judgment and decree passed by 42^ndAdditional City Civil and Sessions Judge, Bangalore city (CCH. No.43), dated 21.06.2016.

4. Briefly stated the facts are that the plaintiff/respondent had filed the suit seeking specific performance of an agreement to sell dated 16.07.2014 of the suit schedule property bearing Sy. No.66, measuring 24,480 sq. ft., situated at Doddigunta village, Davis Road, Bangalore North taluk, more fully detailed in the Schedule appended to the plaint and the decree. The sale consideration was Rs.3 crore. According to the respondent - plaintiff, an advance amount of Rs.30,00,000/- was paid to the defendants and the balance amount of Rs.2,70,00,000/- had to be paid after they got their names entered in the katha. Contending that the defendants had not agreed to the terms and conditions of the agreement and had refused to sell the suit schedule property to the plaintiff, although the plaintiff was ready and willing to

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purchase the said property, the respondent - plaintiff filed the suit for specific performance of the agreement to sell dated 16.07.2014. The trial Court issued suit summons and notices to the defendants in the suit. But the fact is that the defendants did not appear in the matter and they were placed ex parte. After recording plaintiff's evidence and on hearing arguments advanced on behalf of plaintiff, the trial Court raised the following points for its consideration:

1. Whether the plaintiff proves that the defendants have executed agreement to sell in his favour dated 16.07.2014 in respect of the suit schedule property for a sale consideration of Rs.3,00,00,000/- receiving Rs.30,00,000/- as an advance, agreeing to get katha in their names and to execute the regular sale deed in favour of the plaintiff after receiving balance consideration amount of Rs.2,70,00,000/-?

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2. Whether the plaintiff further proves that he is always ready and willing to perform his part of contract?

3. What relief the plaintiff is entitled to?

5. The plaintiff had examined himself as P.W.1. He produced 21 documents which were marked as Exs.P-1 to P-21. Obviously there was no evidence on the part of the defendants. The trial Court answered points No.1 and 2 in the affirmative. By judgment and decree dated 21.06.2016 it decreed the suit by granting the relief of specific performance of the agreement to sell against the defendants and passed certain other incidental and ancillary directions. Thereafter the plaintiff filed Execution Petition No.1881 of 2017 before the trial Court seeking execution of the said decree. At that stage the defendants in the suit became aware of the ex parte judgment and decree and have preferred this appeal.

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6. We have heard learned counsel for the appellants and learned counsel for the respondent and perused the material on record.

7. Appellants' counsel contended that Ex.P-1 is the agreement to sell. In the said agreement, the address of the defendants' vendors is, "No.99, Wheelers Road, Cox Town, Bangalore-560005". But, on the process covers, the number of the residence has been changed to "No.99", although in the plaint it is indicated as No.97. Consequently, there was no service of notice on the defendants. He contended that whether the residence is considered to be at "No.97" or at "No.99", the fact remains that the appellants were not served in the matter.

8. Learned counsel highlighted that if in Ex.P-1 the residence is shown as "No.99" then in the cause title of the suit the residence could not have been shown as "97".

In the circumstances, the ex parte judgment and decree may be set aside and the matter may be remanded for an adjudication.

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9. Learned counsel for the appellants further contended that the suit itself is not maintainable as there is a mediation clause and an arbitration clause and that in the absence of the Alternative Dispute Resolution method being adopted by the plaintiff, straight away the original suit was filed. Therefore, the judgment and decree of the trial Court may be set aside.

10. Per contra, learned counsel for the respondent - plaintiff supporting the ex parte judgment and decree contended that even though in the cause title, the house number has been shown as "No.97", but in the process covers, the number has been rectified as "No.99". That the plaintiff cannot be blamed if the defendants did not appear in the matter. Possibly they refused service of notice and hence the plaintiff now cannot be put to prejudice as the ex parte judgment and decree is in his favour. He contended that there is no merit in the appeal.

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11. Learned counsel for the respondent also submitted that the appellants have avoided filing a Miscellanous Petition and resorted to filing this regular first appeal because if a Miscellaneous Petition had been filed they would not have been successful in proving the fact that they were unaware of the suit proceeding and that the version of the appellants may not be accepted by this Court and the appeal may be dismissed.

12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:

1. Whether the ex parte judgment and decree of the trial Court calls for any interference in this appeal?

2. What order?

13. The detailed narration of facts and contentions would not call for a reiteration except highlighting the fact that the impugned judgment and decree of the trial Court is an ex parte decree.

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14. Learned counsel for the appellants contended that the appellants, who were the defendants in the suit have not been responsible for the suit being decreed ex parte inasmuch as they had no service of notice or summons in the suit. In that regard it is contended that there has been a deliberate erroneous mentioning of the house number of the defendants in the cause title as

"No.97, Wheelers Road", whereas in Ex.P-1 which is produced by plaintiffs it is "House No.99, Wheelers Road".

There is no justification or reason forthcoming for the same from the side of the respondent-plaintiff. Thereafterwards, in the first instance, service of notice was not made on the defendants. Subsequently, another attempt was made and at that stage on the postal covers

"No.97" as shown in the cause title has been re-written as

"No.99". Despite that the covers have been returned unserved. Therefore, learned counsel for the appellants contended that, in substance, the defendants were not served in the suit. Hence, it resulted in an ex parte

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judgment and decree. While all these facts are denied by the learned counsel for the respondent.

15. Having regard to the judgment of the Hon'ble Supreme Court in the case of Bhanu Kumar Jain vs. Archana Kumar and Another, reported in (2005)1 SCC 787 as against an ex parte decree, the defendant has two clear options: one, to file an appeal and another to file an application for setting aside the order in terms of Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.', for the sake of brevity). He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed, as a result whereof the ex parte decree passed by the trial Court merges with the order passed by the Appellate Court, having regard to the Explanation appended to Order IX Rule 13 of C.P.C., a petition under Order IX Rule 13 of C.P.C. would not be maintainable. Therefore, this regular first appeal filed by the appellants is maintainable, even in

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the absence of filing any application under Order IX Rule 13 of C.P.C.

16. On perusal of Ex.P-1, the agreement to sell dated 16.07.2014, it is noted that the house number of the defendants is "No.99, Wheelers road", but in the cause title of the plaint the house number is shown as "No.97, Wheelers Road". There is no explanation for the same. Then an attempt has been made to re-write "No.97, Wheelers Road" on the postal cover as "No.99, Wheelers Road". When all is said and done, the fact remains that the defendants did not appear in the suit. The contention of the learned counsel for the appellants in this regard is that the suit summons and notices were not served on the defendants. The fact remains that ex parte judgment and decree of the trial Court has been passed without there being any participation of the defendants in the suit. It is an uncontested suit for seeking the relief of specific performance which has been decreed. Had the defendants appeared in the suit, the fate of the suit may have been

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different or the plaintiff may have succeeded also. At any rate, a contested suit is a more effective adjudication than an ex parte one. In the circumstances, we hold that the ex parte judgment and decree has been passed without the defendants/appellants herein participating in the suit, which in substance is in violation of the principles of natural justice as the decree has been passed without they having any opportunity to have their say in the matter. On that short ground alone, the impugned judgment and decree is set aside. The appeal is allowed in the aforesaid terms.

17. In order to give an opportunity to the appellants herein to file their written statement in the suit and to participate in the suit in accordance with law, the matter is remanded to the trial Court. Since the parties are represented by their respective counsel, they are directed to appear before the trial Court without expecting any separate notices from the said Court on 25.04.2019. The

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trial Court is directed to dispose of the suit in accordance with law.

18. Since the matter is remanded to the trial Court for a fresh consideration, having regard to Section 64(1) of the Karnataka Court-Fees and Suits Valuation Act, 1958, the Registry is directed to refund the full amount of court fee paid on the memorandum of appeal to appellant No.2 after due identification.

19. At this stage, learned counsel for the respondent makes a two fold submission: firstly, he submits that the appellants may undertake not to alienate the suit schedule property pending disposal of the suit. Appellants' counsel submits that they would not do so. Said submission is placed on record. Learned counsel for the respondent further submits that the suit may be disposed off within a time frame to be issued by this Court. If both sides co-operate with the trial Court, the suit shall be disposed off expeditiously.

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20. In view of the disposal of the appeal, I.A. No.3 of 2018 stands disposed.

Sd/-

JUDGE

Sd/-

JUDGE

hnm

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