Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6228 OF 2022
[Arising out of SLP (C) No.25496 of 2016]
G.N.R. Babu @ S.N. Babu … Appellant
Versus
Dr. B.C. Muthappa & Ors. … Respondents
J U D G M E N T
ABHAY S. OKA, J.
1. Leave granted.
The appellant, who is the original first defendant, has
2.
nd
taken an exception to the judgment and order dated 22
March 2016 passed by the High Court of Karnataka in an
appeal being R.F.A.No.494 of 2016 preferred under Section
Signature Not Verified
96 of the Code of Civil Procedure, 1908 (for short ‘CPC’).
Digitally signed by
BALA PARVATHI
Date: 2022.09.07
17:32:44 IST
Reason:
1
The first respondent who is the original plaintiff, filed a
3.
suit in the City Civil Court at Bangalore (now Bengaluru) for
a declaration that he was the absolute owner of the property
subject matter of the suit comprising 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 hereinafter referred as “the suit property”. Apart
from claiming a declaration of ownership, the first respondent
contended that a structure erected by the appellant on the
suit property was illegal and therefore, a decree was sought
for removal of the structure. The other two respondents in
this appeal were the second and third defendants
respectively. The learned Judge of the City Civil Court at
th
Bangalore, by his judgment and order dated 19 September
2015, passed a declaratory decree by declaring the first
respondent as the owner of the suit property. A decree was
also passed directing the appellant and the second
respondent to remove the structure on the suit property. The
2
appellant and the second respondent were also restrained by
a decree of perpetual injunction from entering in the suit
property and from interfering with the peaceful possession
and enjoyment thereof by first respondent. In paragraph 20
of the said judgment, the learned trial Judge observed that
the appellant and second respondent did not appear despite
the service of summons and did not contest the suit. By the
impugned judgment and order, the High Court confirmed the
decree on merits.
4. In support of the appeal, apart from raising various
contentions on merits of the decree, the learned counsel for
the appellant Shri Anand Sanjay M. Nuli urged that
appellant’s address mentioned in the cause title of the suit
was incorrect and on the date of institution of the suit, he
was 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 that the High Court proceeded on erroneous basis
that the issue regarding the failure to serve the suit
3
summons can be agitated only in an application filed for
setting aside ex parte decree by invoking Rule 13 of Order IX
of CPC. The submission of the learned counsel appearing for
the appellant is that on the basis of the record of the suit, the
appellant could always point out that the service of summons
was not effected or that it was otherwise illegal to proceed ex
parte against him. He would further submit that as can be
seen from the rejoinder filed by the appellant, a multi
storeyed building consisting of ground and four upper floors
has been constructed by the appellant on the suit property
long back and the building is occupied by the purchasers of
the premises therein. He submitted that there is a very
drastic decree passed for demolition of the said building
constructed on the suit property without impleading the
purchasers of the premises therein as parties. He would,
therefore, urge that by setting aside the decree of the trial
court, the suit be remanded for fresh adjudication.
Shri Arvind Kamath, the learned senior counsel
6.
appearing for the first respondentplaintiff submitted that the
third respondentBangalore Development Authority was the
4
owner of the suit property and that the first respondent is the
allottee of the suit property from the third respondent. He
submitted that the sale deed on the basis of which the
appellant is claiming ownership is in respect of some other
property, as can be seen from the description of the property
in the sale deed. The learned senior counsel relied upon a
decision of this Court in the case of Bhanu Kumar Jain v.
1
in support of his contention that in
Archana Kumar & Anr.
an appeal against an ex parte decree, the appellantdefendant
can challenge the decree only on merits. If he wants to
challenge the decree either on the ground that summons was
not duly served to him or that he was prevented by sufficient
cause from appearing in the suit, his remedy is to apply
under Rule 13 of Order IX of CPC. He also relied upon
another decision of this Court in the case of
Bhivchandra
2
Shankar More v. Balu Gangaram More & Ors. in which the
1
decision of this Court in the case of Bhanu Kumar Jain was
followed. He submitted that it is not open for the appellant to
challenge the decree of the trial court on the ground that
1 (2005) 1 SCC 787
2 (2019) 6 SCC 387
5
summons was not duly served as he has not filed an
application for setting aside the decree. He submitted that
there is a concurrent finding of the trial court and High Court
that the first respondent has established his title and
ownership over the suit property and that the building
constructed thereon is completely illegal. The learned senior
counsel, therefore, urged that the present appeal be
dismissed.
7. We have given careful consideration to the
submissions. Firstly, we will deal with the scope of
adjudication in an appeal preferred under Section 96 of CPC
by a defendant against whom the trial court has proceeded
ex parte and a decree has been passed. In the case of Bhanu
1
a Bench of three Hon’ble Judges of this Court
Kumar Jain
dealt with a case where an application for setting aside ex
parte decree was filed by a defendant under Rule 13 of Order
IX of CPC. The said application was dismissed. Even an
appeal preferred against the order of dismissal of the said
application was dismissed. An appeal under Section 96 of
CPC was also preferred by the said defendant. The
6
submission before this Court was that the subject matter of
the application under Rule 13 of Order IX of CPC and the
subject matter of the appeal against decree being the same, it
is against the public policy to allow two parallel proceedings
to continue simultaneously. In paragraph 23 of the decision,
this Court noted that the question before it was whether an
appeal against decree was maintainable despite the
ex parte
fact that an application under Rule 13 of Order IX of CPC
was dismissed. Paragraphs 24 to 27 of the said decision read
thus :
“ 24. An appeal against an ex parte decree in terms
of Section 96(2) of the Code could be filed on the
following grounds
(i) the materials on record brought on record in
the ex parte proceedings in the suit by the plaintiff
would not entail a decree in 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 order posting the case
for ex parte hearing, it is open to the defendant to
contend that he had sufficient and cogent reasons for
not being able to attend the hearing of the suit on the
relevant date.
7
26. When an ex parte decree is passed, the
defendant (apart from filing a review petition and
a suit for setting aside the ex parte decree on the
ground of fraud) has two clear options, one, to file
an appeal and another to file an application for
setting aside the order in terms of Order 9 Rule
13 of the Code. 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 Explanation appended to Order 9 Rule
13 of the Code a petition under Order 9 Rule 13
would not be maintainable. However, Explanation
I appended to the said provision does not suggest
that the converse is also true.
27. In an appeal filed in terms of Section 96 of the
Code having regard to Section 105 thereof, it is also
permissible for an appellant to raise a contention as
regards correctness or otherwise of an interlocutory
order passed in the suit, subject to the conditions
laid down therein.”
[Emphasis added]
This Court held that though after dismissal of an appeal
under Section 96 of CPC against ex parte decree, application
under Rule 13 of Order IX of CPC will not be maintainable,
there is no bar on unsuccessful defendant adopting both the
remedies simultaneously. In such a case, if the regular
appeal against the decree is dismissed, obviously the
application under Rule 13 of Order IX of CPC cannot proceed.
8
The reason is that explanation to Rule 13 of Order IX of CPC
lays down that where there has been an appeal against a
decree passed ex parte and the appeal has been disposed of
on any ground other than withdrawal, application for setting
aside ex parte decree will not lie. However, in the event an
application under Rule 13 of Order IX of CPC is dismissed,
the defendant can prosecute the appeal against the decree as
a right to prefer appeal under Section 96 cannot be taken
away in absence of any express provision to the contrary in
CPC. In paragraph 38 of the aforesaid decision, this Court
held that when application under Rule 13 of Order IX of CPC
filed by a defendant is dismissed, the defendant cannot be
permitted to raise a contention as regards the correctness or
otherwise of the order posting the suit for ex parte hearing
and/or existence of a sufficient cause for nonappearance of
the defendant.
8. In this case, the question is when the defendant did
not avail the remedy under Rule 13 of Order IX of CPC,
whether it is open for him to agitate in the regular appeal
against the decree that the trial court had no justification for
9
proceeding ex parte against the appellant. In such a case,
though the appellant would not be entitled to lead evidence in
appeal for making out a sufficient cause for his absence
before the trial court, he can always argue on the basis of the
record of the suit that either the suit summons was not
served upon him or that even otherwise also, the trial court
was not justified in proceeding ex parte against him. The
reason is that under Section 105 of CPC, when a decree is
appealed from, any error, defect or irregularity in any order
affecting the decision of the case can be set forth as a ground
of objection in the Memorandum of Appeal. Thus, in such a
case, the appellant can always urge in an appeal against the
decree that an interim or interlocutory order passed during
the pendency of 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 the order passed to proceed with
the suit ex parte against him was illegal. As held in the case
1
of , only when the application made by a
Bhanu Kumar Jain
defendant under Rule 13 of Order IX of CPC is dismissed that
10
such a defendant cannot agitate in the appeal against ex
parte decree that the order directing that the suit shall
proceed ex parte was illegal or incorrect. However, in this
case, the appellant has not filed application under Rule 13 of
Order IX of CPC. Therefore, such a contention can be raised
by him.
9. Now coming to the facts of the case in hand, we find
that there is a noting in the order sheet of the trial court
th
dated 27 October 2014 that the summons issued to the
appellant and second respondent was returned unserved with
the remark that their respective premises were locked.
th
However, on 05 January 2015, the trial court ordered issue
of summons by Registered Post Acknowledgement Due at the
th
same address. The order sheet of 05 March 2015 records
that the summons sent to the appellant and the second
respondent by post was returned with the remarks
“Intimation Delivered”. Thus, the record shows that an
attempt to serve summons by the regular mode failed as the
premises of the appellant were found to be locked. The trial
court did not direct affixing of a copy of the summons on the
11
outer door of the premises in which the appellant was
residing, as required by Rule 17 of Order V of CPC. Without
verifying whether the address of the appellant, as shown in
the cause title of the suit was correct, summons was ordered
to be served through Registered Post AD. Therefore, in our
view, there was no warrant for proceeding ex parte against
the appellant.
10. Moreover, we find from the rejoinder that a multi
storeyed building consisting of ground plus four floors has
been constructed on the suit property and the residential
premises in the building on the suit property have been
occupied by different persons. As noted earlier, there is a
decree passed for the demolition of the building constructed
on the suit property. This is one more reason why we are
inclined to accept the prayer for remand of the suit. The suit
was instituted in the year 2014. As a result of passing an
order of remand, the disposal of the suit filed by the first
respondent will be delayed. Therefore, the appellant will have
to be saddled with costs quantified at Rs.2,00,000/ (Rupees
two lacs only). Though we are not making any adjudication
12
on the issue whether the occupants of the building are
necessary parties to the suit, a liberty will have to be granted
to the first respondent, if he so desires, to implead the
persons in possession of the premises in the building
constructed on the suit property.
11. Accordingly, the present appeal is partly allowed. The
nd
impugned judgment and order dated 22 March 2016 passed
by the High Court as well as the impugned judgment and
th
decree dated 19 September 2015 passed by the learned
Judge of the City Civil Court at Bangalore are hereby set
aside. Original Suit No.6610 of 2014 is restored to the file of
the City Civil Court, Bangalore.
The parties to the appeal shall mark their presence
12.
before the learned Principal Judge, City Civil Court at
th
Bangalore on Monday, the 26 September 2022 at 10:30 a.m.
It will be open to the Principal Judge of the City Civil Court to
transfer the suit for disposal to any of the Judges of the City
Civil Court. The appellant shall file his written statement
th
within maximum period of one month from 26 September
2022. Under no circumstances, the appellant shall be
13
granted extension of time to file written statement.
Considering the fact that the suit is of the year 2014, the trial
court shall endeavour to give necessary priority to the
disposal of the suit.
13. The first respondent shall be entitled to costs
quantified at Rs.2,00,000/ (Rupees two lacs only) from the
appellant. The payment of costs shall be the condition
precedent. The appellant shall either directly pay the costs
amount to the first respondent and produce the receipt
thereof within four weeks from today or shall deposit the
costs amount with the City Civil Court within four weeks
from today.
.………..…………………J.
[Ajay Rastogi]
.………..…………………J.
[Abhay S. Oka]
New Delhi;
September 06, 2022.
14