SRI. B C RAMESH KUMAR vs SRI. V VENKATESH
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 8 DAY OF OCTOBER, 2026
R
BEFORE
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 35612 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO. 36043 OF 2024 (GM-CPC)
IN WP No. 35612/2024
BETWEEN:
SRI. B.C.RAMESH KUMAR
S/O LATE PROF B.N.CHOWDAIAH,
AGED ABOUT 6-4-YEARS,
TH TH
R/AT NO, 10, 4 BLOCK, 5 CROSS,
KUMARA PARK WEST,
SUBRAMANYA TEMPLE STREET,
BANAGLORE-560 020.
…PETITIONER
(BY SRI. ARUN.B.K., ADVOCATE)
AND:
1. DR. SHOBA DEVI
D/O LATE PROF B.N.CHOWDAIAH,
AGED ABOUT 69 YEARS,
TH
R/AT NO. 10, 4 BLOCK,
TH
5 CROSS, KUMARA PARK WEST,
SUBRAMANYA TEMPLE STREET,
BANGALORE-560 020.
2. SRI. V.VENKATESH,
S/O LATE VENKATAPPA,
AGED ABOUT 42 YEARS,
Digitally signed
by JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
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R/AT DOOR NO.12/3,
YAMUNABAI ROAD,
MADAVANAGARA,
NEHARU NAGAR,
BANGALORE-560 001
…RESPONDENTS
(BY SRI. VIVEK SUBBAREDDY., SENIOR COUNSEL FOR
SRI. S.ISMAIL ZABIULLA., ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
IMPUGNED COMMON ORDER DTD. 10.06.20234 PASSED IN
O.S.NO. 3721/2016 ON THE FILE XXX ADDL. CITY CIVIL
AND SESSION JUDGE AT BENGALURU (CCH-31). ALLOW
THE APPLICATION FILED BY THE PETITIONER IN O.S.NO.
3721/2016 ON THE FILE XXX ADDL. CITY CIVIL AND
SESSION JUDGE AT BENGALURU (CCH-31) UNDER ORDER
IX RULE 7 OF THE CODE OF CIVIL PROCEDURE, 1908 AND
PERMIT THE PETITIONER TO CONTEST THE SAID SUIT ON
MERITS BY FILING HIS WRITTEN STATEMENT.
IN WP NO. 36043/2024
BETWEEN:
SRI. B.C.RAMESH KUMAR
S/O. LATE PROF. B.N.CHOWDAIAH,
AGED ABOUT 64 YEARS,
R/AT NO. 10, 4TH BLOCK,
5TH CROSS, KUMARA PARK WEST,
SUBRAMANYA TEMPLE STREET,
BANGALORE-560 020.
...PETITIONER
(BY SRI. ARUN.B.K., ADVOCATE)
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AND:
1. SRI. V.VENKATESH
S/O. LATE VENKATAPPA,
AGED ABOUT 42 YEARS,
R/AT DOOR NO. 12/3,
YAMUNABAI ROAD,
MADAVANAGARA,
NEHARU NAGAR,
BANGALORE-560 001.
2. DR. SHOBA DEVI
D/O. LATE PROF. B.N.CHOWDAIAH,
AGED ABOUT 69 YEARS,
R/AT NO. 10, 4TH BLOCK,
5TH CROSS, KUMARA PARK WEST,
SUBRAMANYA TEMPLE STREET,
BANGALORE-560 020.
...RESPONDENTS
(BY SRI. SHAIK ISMAIL ZABIULLA., ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS IN O.S.NO. 3455/2020 ON THE FILE XXX
ADDL. CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (CCH-31) SET-ASIDE THE IMPUGNED
ORDER DTD. 10.06.2024 PASSED ON I.A.NO. 5 FILED
UNDER ORDER IX RULE 7 OF CPC IN O.S.NO.
3455/2020 ON THE FILE XXX ADDL. CITY CIVIL AND
SESSION JUDGE AT BENGALURU (CCH-31). ALLOW THE
APPLICATION (I.A.NO.5) FILED BY THE PETITIONER IS
O.S.NO.3455/2020 ON THE FILE XXX ADDL. CITY CIVIL
AND SESSION JUDGE AT BENGALURU (CCH-31) UNDER
ORDER IX RULE 7 OF THE CODE OF CIVIL PROCEDURE
1908 AND PERMIT THE PETITIONER TO CONTEST THE
SAID SUIT ON MERITS.
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THESE PETITIONS ARE COMING ON FOR HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL ORDER
Table of Contents
I. Brief Introduction................................................... 4
II. Factual Matrix: ...................................................... 5
III. Contentions of the Parties : ................................... 15
IV Issue for consideration: ........................................ 18
V. Analysis & Legal Evaluation: .................................. 19
VI. Conclusion ........................................................ 50
I. Brief Introduction
1. These petitions are filed seeking to challenge two
orders, both dated 10.06.2024, passed in O.S.
No.3455/2020 and O.S.No.3726/2016 respectively, by the
XXX Additional City Civil and Session Judge, Bengaluru
[hereinafter referred to as the “Impugned Orders”]. By the
Impugned Orders, three applications filed by the
petitioner/defendant No.1 being I.A.Nos.13 to 15, under
Order IX, Rule 7 of the Code of Civil Procedure, 1908
[hereinafter referred to as ‘the CPC’], Order III, Rule 2 and
Section 151 of the CPC in O.S. No.3751/2020 and three
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similar applications filed by the petitioners/defendants
being I.A. Nos.5 to 7 under Order 9 Rule 7 of CPC; under
Order 3 Rule 2 of the CPC; and under Section 151 of the
CPC in O.S.No.3455/2020 have been dismissed.
II. Factual Matrix:
2. The brief facts relevant for the adjudication of these
petitions are that a suit for declaration and permanent
injunction was filed by defendant No.2, Dr. Shobha Devi,
[hereinafter referred to as ‘Dr. Shobha’] being
O.S.No.3721/2016 seeking a declaration that the registered
sale deed dated 28.03.2016, executed by the
petitioner/defendant No.1 [hereinafter referred to as
‘B.C.Ramesh’] in favour of the respondent No.2/defendant
No.2 [hereinafter referred to as ‘V.Venkatesh’] be declared
as not binding on the plaintiff and a permanent injunction
restraining the defendants from interfering with the
peaceful possession and enjoyment of the plaintiff in the
suit schedule property [O.S.No.3721 of 2016 is hereinafter
st
referred to as the ‘1 suit’].
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st
2.1 The prayers in the 1 Suit, as well as the schedule
property are set out herein below:
“ WHEREFORE it is prayed that this Hon'ble Court may
kindly be pleased to pass judgment and decree in her favor
as here under:-
(a) Declaration declaring that sale deed dated
28.03.2016, which was registered in CD No. GAND260 page
15 Reg. No. GAN-1-06093-2015-16, executed by 1st
defendant in favor of 2nd defendant in respect of schedule
property is not binding on plaintiff.
(b) Permanent injunction restraining the defendants,
their henchmen, agents, administrators, executors or legal
representatives from interfering with the peaceful
possession and enjoyment of the plaintiff over the suit
schedule property.
(c) To pass such other relief as deemed fit in view of the
above said facts and circumstances in the interest of justice
and equity.
SCHEDULE PROPERTY
All that piece and parcel of Immovable property bearing
New No.6, (Old No 10) situated at 5th Cross, Kumara Park
West, PID No.27-90-6, BBMP Ward No. 27,
Sheshadripuram, Bangalore-560020 measuring East to
West 46'.6", North to South 49'10 ½" totally measuring
2288.293. Sq.ft., and along with 2200 Square built up area
comprising of Ground and first floor with all rights,
appurtenances whatsoever whether underneath or above
the surface, with all building structures and fittings now
standing thereon and bounded as follows:
East by : Building Old No.11 & New No.5
West by : Building No.8
rd th
North by : 3 Cross road & New 5 Cross
South by : Building No.17”
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2.2 It was the case of Dr. Shobha that originally her father
was the absolute owner of the suit schedule property and
that her brother (B.C. Ramesh) had sold the schedule
property taking advantage of the fact that the Khata of the
schedule property was in his name alone. It was contended
that B.C. Ramesh had alienated the schedule property to
V.Venkatesh by executing a registered sale deed dated
28.03.2016 without the consent of Dr.Shobha.
st
2.3 The 1 suit also set up that V.Venkatesh is trying to
alienate the suit schedule property and thus an injunction
was sought for as well.
3. The learned Trial Court by its order dated 26.05.2016
st
passed in the 1 suit granted an ad-interim ex-parte
injunction restraining the V.Venkatesh from alienating the
suit property till the next date of hearing. The said
V.Venkatesh appeared and contested the matter thereafter.
Since defendant No.1 / B.C. Ramesh did not appear and
remained unserved, service was effected on him by means
of publication in the Newspaper Kannada Prabha by an
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order dated 09.12.2016. On 07.04.2017, since there was
no presence on behalf of the B.C. Ramesh despite the paper
publication, he was proceeded with as ex-parte.
Subsequently, Issues were framed by the Court on
21.04.2017 and the evidence of the parties commenced.
4. During the pendency of this suit, another suit was filed
by the said V. Venkatesh being O.S.No.3455/2020 against
B.C.Ramesh and Dr.Shobha [hereinafter referred to as the
nd nd
‘2 suit’]. The 2 suit sought a declaration that the plaintiff
is entitled to half share in the schedule property, by virtue
of the registered sale deed dated 28.03.2016. It was
averred by the said V.Venkatesh therein, that the half share
of B.C.Ramesh be allotted in favour of the plaintiff /
V.Venkatesh and that V.Venkatesh be put in separate
possession of his half share of the schedule property. A
permanent injunction was also sought restraining the
interference of the possession of the plaintiff / V.Venkatesh,
as well as directions for refund the sum of Rs.1,20,00,000/-
with interest 12% per annum and costs.
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4.1 The prayers in this suit and the schedule property are
set out below:
“ WHEREFORE, it is prayed that this Hon'ble Court that it
may kindly be pleased to pass a judgment and decree
against the Defendants in the following manner:
a) To Declare that the Plaintiff herein is entitled to half
share in the suit schedule property by virtue of registered
sale deed dated 28-3-2016 bearing document No. GAN-1-
06093/2015-16, CD No. GAND260, dated 28-3-2016,
registered in the Sub-Registrar's Office, Gandhinagar,
Bangalore, purchased through Defendant NO.1 for valuable
sale consideration and allot the half share of Defendant
NO.1 in the schedule property in favour of the Plaintiff and
put the Plaintiff in separate possession and enjoyment of
his half share in the schedule property the same by metes
and bounds
b) Permanent Injunction restraining to Defendants their
agents, legal representatives, henchmen, assignees,
administrators, or any body is claiming through them from
interfering with the plaintiff's peaceful possession and
enjoyment of the half share in the schedule property which
shall be divided by metes and bound.
c) Direct the Defendant No. 1 herein to refund/pay back a
sum of Rs. 1,20,00,000/- with interest @ 12% p.a. from
the date of execution of Sale Deed dated 28-3-2016 till date
of payment to the Plaintiff which was received by the
Defendant No. 1 in excess to his actual entitlement in
respect of the schedule property under the sale deed dated
28-3-2016 bearing document No. GAN-1-06093/2015-16,
CD No. GAND260, dated 28-3-2016, registered in the Sub-
Registrar's Office, Gandhinagar, Bangalore.
d) For costs of the suit.
e) For such other relief/s as this Hon'ble Court deems fit in
the above said facts and circumstances in the interest of
justice and equity.
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SCHEDULE PROPERTY
All that piece and parcel of immovable property bearing
New Municipal No.6 (Old Door NO.W-94/6) Situated at 5th
Cross, Kumara park West, PID NO.27-90-6, BBMP Ward
No.27, Gandhinagar, Bangalore measuring East to West
46'-6" feet and North to South 49'-10 ½" feet, totally
measuring 2288.293 sq.ft and along with 2200sq.ft built up
area, comprising of Ground and First Floor with all rights,
appurtenances, whatsoever whether underneath or above
the surface, with all building structures, and fitting now
standing thereon and bounded as follows:
East by : Building No.11
West by : Compound Wall of Building No.9
rd
North by :3 Cross road,
South by : Building No.17”
5. As can be seen from the above, the schedule property
st nd
in both the 1 suit and the 2 suit were the same.
Subsequently, pursuant to an application filed for clubbing
st
of this suit with the 1 suit, by an order dated 04.02.2021,
st nd
the learned Trial Court directed that the 1 suit and the 2
suit be clubbed together. It was further held by the learned
Trial Court that since evidence has already commenced in
the first suit, common evidence be led in that suit for both
cases.
nd
6. Summons were issued in the 2 suit on 11.08.2020.
However, summons issued to Defendant No.1/B.C. Ramesh
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nd
in the 2 suit were returned with the endorsement
nd
‘unclaimed’ on 06.11.2020. However, the 2 suit was
contested by the said Dr. Shoba. The learned Trial Court on
06.11.2020 while noting this contention held as follows:
“Both the counsels for plaintiff and defendant No.2 are
present.
Counsel for defendant No.2 seeks permission to file IA
U/sec.148 of CPC seeking for extension of time to file
written statement. He is permitted to file the same in
office.
The said application is hereby allowed.
SS to defendant No.1 returned unserved with
endorsement unclaimed. Service of summons to
defendant No.1 held sufficient, defendant No.1 called out,
absent.
For appearance of Defendant No1. And for written
statement and objections to IA by 11.12.2020.”
7. Pursuant thereto, an application under Order XII, Rule
6 of the CPC was filed by the V. Venkatesh being IA No.4 of
2021 on 07.07.2021 seeking a judgement based on
admissions made by Dr. Shobha in the written statement
filed. The matter was adjourned from time to time and the
application was listed for hearing as a final opportunity on
03.10.2023.
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8. It is thereafter and on 06.11.2023 that the three
st
applications were filed by the 1 defendant/B.C. Ramesh in
st
the 1 suit, being :
(i) I.A. No.13 under Order 9, Rule 7 of the CPC, seeking
opportunity to contest the matter on merits;
(ii) I.A.No.14 under Order 3, Rule 2 of the CPC, seeking
permission to be represented by a Power of Attorney holder,
since he does not have the use of both his legs and is not
in a good health condition; and
(iii) I.A.No.15 under Section 151 of CPC, seeking leave to
file the Written Statement.
nd
9. In addition, 3 applications were also filed in the 2
suit on 06.11.2023, being:
(i) I.A. No.5, under Order IX Rule 7 of the CPC seeking to
set-aside the ex-parte order against the said defendant;
(ii) I.A.No.6 under Order III, Rule 2 read with Section 151
of the CPC, with a prayer that he be represented through a
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power of attorney holder since he does not have the use of
both his legs and is not in a good health condition; and
(iii) I.A. No.7 under Order VII, under Section 151 of the
CPC, seeking leave to file the Written Statement in the
matter.
10. These applications were contested by V.Venkatesh by
filing objections to each application. The objections to
I.A.No.13 stated that the service of notice is deemed to be
served when it is returned with the remarks ‘unclaimed’ and
thus the notice was served on 07.04.2017. It further sets
out that it is almost after a lapse of 7 years, that this
application was filed and no materials or documents
regarding the contentions therein have been placed on
record.
11. So far is concerned the objections to the application
under Order III, Rule 2 of the CPC, it was stated by
V.Venkatesh that the power to depose in place of a principal
extends only to depositions in respect of acts done by a GPA
holder and the GPA holder cannot depose for the principal,
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in respect of matters of which only the principal has
personal knowledge. Since the acts in the suit are only done
by B.C. Ramesh, the GPA holder cannot depose. Thus, it
was stated that the application is without merit.
12. In the objections filed to the application under Section
151 of the CPC, it was stated that Dr.Shobha and
B.C.Ramesh are brother and sister. They are both residing
at the address as given in the petition and that the notice
which was returned as ‘unclaimed’ would be actual service.
It was further stated in the objections that Dr. Shobha and
her brother B.C. Ramesh hatched a conspiracy and that
after selling the property based on the Khata and without
disclosing that his sister had a 50% share in the property,
the said B.C.Ramesh fraudulently made the V.Venkatesh
part with the entire sale consideration and has embroiled
him in unnecessary litigation.
st
12.1 The contents of all the three applications in 1 suit
nd
were pari-materia to those in the 2 suit, as were the
objections thereto.
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13. The learned Trial Court has decided these six
applications by two separate identical judgments being the
Impugned Orders, dismissing these all applications filed in
st nd
1 suit and the 2 suit by B.C. Ramesh.
III. Contentions of the Parties :
14. Learned counsel for the petitioner Sri. Arun B.K.,
submits that the petitioner/B.C. Ramesh was proceeded
with ex-parte by the Trial Court, even though he was not
properly served as the service report set out that it was
‘unclaimed’. He further submits that as has been stated in
his applications, he was initially travelling a lot and that he
was not available at his address. Hence, the summons were
returned as ‘unclaimed’. In addition, it was stated therein
that the petitioner suffered from medical issues which led
to the amputation of both his legs in February 2023 abroad
and it is only in the second week of September’2023 and
after the fitting of prosthetic legs, that he came to know
about the suit from some family members who visited the
hospital.
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14.1 It is thus contended by learned counsel that since he
was proceeded with ex-parte by the learned Trial Court, he
could not appear and contest his case and that he must be
given an opportunity to do so. However, the learned Trial
Court has not given him such an opportunity.
15. In support of the contentions, learned counsel seeks
to rely on the judgment of a Coordinate bench of this Court
in the case of V.Nalina Vs. M/s Poornaprajna House
1
Building Cooperative Society Ltd. , to submit that in a
similar case when there was a delay of 1335 days in filing
the application, the Court held that where the rights of the
parties are involved in respect of immovable property of a
large extent, the parties should not be deprived of their
rights. The other side cannot claim to have a vested right
injustice being done because of non-deliberate delay and
there is no presumption that delay is occasioned
deliberately. Since a litigant does not stand to gain by delay,
the Courts must step in to ensure no injustice is done.
1
W.P.No.38302/2017, By an Order dated 14.12.2017
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16. Learned Senior Counsel, Sri. Vivek Subba Reddy
appearing on behalf of the contesting respondent on the
other hand, submits that the applications are mala fide. No
reason whatsoever has been given in the applications for
not contesting the matter despite service. He further
submits that the petitioner has failed to explain the long
delay of almost seven years in filing these applications in
st nd
the 1 suit and more than 3 years in the 2 suit. He further
submits that the petitioner was proceeded with ex parte
after being served by publication in the Daily Newspaper
st
‘Kannada Prabha’ on 25.01.2017, in the 1 suit , while in
nd
the 2 suit the service has been effected on the petitioner
as ‘unclaimed’.
16.1 It is contended that it is a settled position in law that
‘unclaimed’ would mean adequate service. Reliance in this
behalf is placed on the judgment of the Supreme Court in
(i) K.Bhaskaran vs. Sankaran Vaidhyan Balan And
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Another (ii) Ajeet Seeds Limits vs. K.Gopala
3
Krishaiah .
17. Learned Senior Counsel has also relied on the
judgments of Division Bench of this Court Sri.Siddaram vs.
4
Smt.Mallavva and Others , as well as the Coordinate
Bench of the Delhi High Court in Tarlochan Singh & Ors.
5
v. Union Bank of India & Ors to submit that the settled
legal position on condonation of delay is that unless
sufficient cause is shown and reasons adequate reasons
assigned, delay cannot be condoned.
18. Although service was effected on respondent
No.2/Dr.Shobha, there has been no presence on her behalf.
IV Issue for consideration:
19. The issue that arises for consideration of this Court is,
whether in the circumstances of the case, the learned Trial
Court ought to have allowed these applications?
2
(1999) 7 SCC 510
3
(2014) 12 SCC 685
4
RFA No.100514/2023 v/o 18.12.2023
5
2012 SCC Online Del 5357
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V. Analysis & Legal Evaluation:
20. At the outset, it is apposite to set out the dates when
the said B. C. Ramesh was served. The record reflects that
st
so far as concerns the 1 suit, B. C. Ramesh was served by
publication in a daily newspaper on 25.01.2017, while in the
nd
2 suit he was served in terms of the order dated
06.11.2020 - as the process was returned as “unclaimed”.
21. At this stage, it is apposite to examine the import of
the law in relation to the efficacy of service were effected
with the postal endorsement as ‘unclaimed’. The Supreme
Court in K. Bhaskaran case, has while examining a notice
returned with the postal endorsement ‘unclaimed’, held that
if the notice has been properly addressed and dispatched, a
presumption of service could arise unless the contrary is
proved. The relevant extract is set out below:
“23. Here the notice is returned as unclaimed and not
as refused. Will there be any significant difference
between the two so far as the presumption of service is
concerned? In this connection a reference to Section
27 of the General Clauses Act will be useful. The
section reads thus:
“27. Meaning of service by post.— Where any Central
Act or Regulation made after the commencement
of this Act authorises or requires any document to
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be served by post, whether the expression ‘serve’
or either of the expressions ‘give’ or ‘send’ or any
other expression is used, then, unless a different
intention appears, the service shall be deemed to
be effected by properly addressing, pre-paying and
posting by registered post, a letter containing the
document, and unless the contrary is proved, to
have been effected at the time at which the letter
would be delivered in the ordinary course of post .”
24. No doubt Section 138 of the Act does not require that
the notice should be given only by “post”. Nonetheless the
principle incorporated in Section 27 (quoted above)
can profitably be imported in a case where the
sender has despatched the notice by post with the
correct address written on it. Then it can be deemed
to have been served on the sendee unless he proves
that it was not really served and that he was not
responsible for such non-service. Any other interpretation
can lead to a very tenuous position as the drawer of the
cheque who is liable to pay the amount would resort to
the strategy of subterfuge by successfully avoiding the
notice.
25. Thus, when a notice is returned by the sendee as
unclaimed such date would be the commencing date
in reckoning the period of 15 days contemplated in
clause (c) to the proviso of Section 138 of the Act.
Of course such reckoning would be without
prejudice to the right of the drawer of the cheque to
show that he had no knowledge that the notice was
brought to his address. In the present case the
accused did not even attempt to discharge the
burden to rebut the aforesaid presumption. ”
[Emphasis Supplied]
21.1 A similar view was also taken by the Supreme Court
in the judgment of C.C. Alavi Haji v. Palapetty
6
Muhammed , wherein, while considering the presumption
6
(2007) 6 SCC 555
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of service of notice, the Supreme Court reaffirmed the
principle laid down in K. Bhaskaran case, that where a
notice is dispatched by registered post to the correct
address, service may be presumed to have been effected in
the ordinary course of post. The Court further clarified that
such presumption is rebuttable and the addressee may
establish that the notice was not actually served or that he
had no knowledge of the notice having been brought to his
address. The relevant extract is set out below:
“8. Since in Bhaskaran case [(1999) 7 SCC 510 : 1999
SCC (Cri) 1284] the notice issued in terms of Clause (b)
had been returned unclaimed and not as refused, the
Court posed the question: “Will there be any significant
difference between the two so far as the presumption of
service is concerned?” It was observed that though
Section 138 of the Act does not require that the notice
should be given only by “post”, yet in a case where the
sender has dispatched the notice by post with correct
address written on it, the principle incorporated in
Section 27 of the General Clauses Act, 1897 (for
short “the GC Act”) could profitably be imported in
such a case. It was held that in this situation service
of notice is deemed to have been effected on the
sendee unless he proves that it was not really
served and that he was not responsible for such
non-service.
xxx xxx xxx
10. It is, thus, trite to say that where the payee
dispatches the notice by registered post with
correct address of the drawer of the cheque, the
principle incorporated in Section 27 of the GC Act
would be attracted; the requirement of Clause (b) of
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proviso to Section 138 of the Act stands complied
with and cause of action to file a complaint arises on
the expiry of the period prescribed in Clause (c) of
the said proviso for payment by the drawer of the
cheque. Nevertheless, it would be without prejudice
to the right of the drawer to show that he had no
knowledge that the notice was brought to his
address.
xxx xxx xxx
15. Insofar as the question of disclosure of necessary
particulars with regard to the issue of notice in terms of
proviso (b) of Section 138 of the Act, in order to enable
the court to draw presumption or inference either under
Section 27 of the GC Act or Section 114 of the Evidence
Act, is concerned, there is no material difference between
the two provisions. In our opinion, therefore, when the
notice is sent by registered post by correctly addressing
the drawer of the cheque, the mandatory requirement of
issue of notice in terms of Clause (b) of proviso to Section
138 of the Act stands complied with. It is needless to
emphasise that the complaint must contain basic facts
regarding the mode and manner of the issuance of notice
to the drawer of the cheque. It is well settled that at the
time of taking cognizance of the complaint under Section
138 of the Act, the court is required to be prima facie
satisfied that a case under the said section is made out
and the aforenoted mandatory statutory procedural
requirements have been complied with. It is then for the
drawer to rebut the presumption about the service
of notice and show that he had no knowledge that
the notice was brought to his address or that the
address mentioned on the cover was incorrect or
that the letter was never tendered or that the report
of the postman was incorrect. In our opinion, this
interpretation of the provision would effectuate the
object and purpose for which proviso to Section 138
was enacted, namely, to avoid unnecessary
hardship to an honest drawer of a cheque and to
provide him an opportunity to make amends.
xxx xxx xxx
19. In the final analysis, with the clarification
indicated hereinabove, we reiterate the view
expressed by this Court in K. Bhaskaran [(1999) 7
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SCC 510 : 1999 SCC (Cri) 1284] and Vinod Shivappa
cases [(2006) 6 SCC 456 : (2006) 3 SCC (Cri) 114].”
[Emphasis Supplied]
22. An examination of the record also reflects that it is not
the case of the applicant B. C. Ramesh, that he has changed
his address or that these were sent to an incorrect address.
In fact, there is no averment in the applications qua a
change in address which sets out that the address was
being used. The only averment that has been made in the
applications is that the applicant was travelling a lot and
also suffering from chronic diabetes requiring constant
medical attention. The other averment set forth in the
application is that the health condition of the applicant
deteriorated and both his legs were amputated abroad in
February 2023. The relevant extract of the application and
affidavit in I.A No.13 in OS No. 3721 of 2016 is below:
“APPLICATION UNDER ORDER 9 RULE 7 OF THE
CODE OF CIVIL PROCEDURE
That for the reasons sworn to in the accompanying
affidavit, the Defendant No1 humbly prays that this
Hon'ble Court be pleased to set aside ex-partė
against him, in the interests of justice and equity.
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AFFIDAVIT
xxx xxx xxx
2. I state that the Plaintiff has filed the above suit for
Judgment, and Decree of declaration and other reliefs
against the defendants. I state I was not served with the
summons in the above suit. The service is taken as
sufficient for the reason that summons issued
against me returned unserved with endorsement
unclaimed. Due. to my constant travelling on my
business and during the development that took
place such as threats by the 2nd defendant subsequent
to execution of alleged sale deed, I was not residing in the
address given in the cause title except using the said
address för certain correspondences.
3. It appears that intimation was delivered by the
postal department during the days when I was not
in station and therefore it was returned as
unclaimed. Hence this Hon'ble Court recorded my non-
appearance, in above suit and was pleased to place me
ex-parte.
4. I state that I am suffering from chronic diabetes
from a very long time and was in need of constant
medical attention due to which I was prevented
from travelling. In the meantime, my health
deteriorated and I was admitted in a hospital and was
operated upon and lower legs amputated abroad In
the month February of 2023 and remained in hospital. I
was operated and amputated with both the lower legs
because of my worsened health and to prevent threat to
my life. Thereafter I came to Bangalore for
rehabilitation including Physiotherapy in the second
week of September 2023 and fitting of prosthetic
legs. That is when I came to know about the above
suit from some family members who visited the
hospital in the third week of September 2023 and also
about false claim of ownership by the plaintiff in respect
of the suit property. Immediately I consulted the present
counsel and came to know about me being placed as
exparte in the above suit. Hence this application…..”
[Emphasis Supplied]
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23. The relevant extract of the application and affidavit of
I.A No.5 in O.S.No.3455 of 2020, which is pari-materia to
st
I.A.No.13 of 1 suit is set out below:
“APPLICATION UNDER ORDER 9 RULE 7 OF THE
CODE OF CIVIL PROCEDURE
That for the reasons sworn to in the accompanying
affidavit, the Defendant No1 humbly prays that this
Hon'ble Court be pleased to set aside ex-parte order dated
11.12.2020, in the interests of justice and equity.
AFFIDAVIT
xxx xxx xxx
2. I state that the plaintiff has filed the above suit for
judgment and decree of partition and other reliefs against
the defendant. I state I was not served with the summon
in the above suit. The service is taken as sufficient for
the reason that summons issued against me
returned unserved with endorsement unclaimed.
Due to my constant travelling on my business and
during the development that took place such as threats
by the plaintiffs subsequent to execution of alleged sale
deed, I was not residing in the address given in the
cause title except using the said address for certain
correspondences .
3. It appears that intimation was delivered by the
postal department during the days when I was not
in station and therefore it was returned as
unclaimed. Hence this Hon'ble Court recorded my non-
appearance in the above suit and was pleased to place me
ex-parte on 1.1.12.2020.
4 . I state, that I am suffering from chronic diabetes
from a. very long time and was in need of constant
medical attention due to which I was prevented
from travelling. In the meantime, my health
deteriorated and I was admitted in a hospital and was
operated upon and lower legs amputated abroad in
the month of February 2023 and remained in
hospital. I was operated and amputated with both the
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lower legs because of my worsened health and to prevent
threat to my life. Thereafter I came to Bangalore for
rehabilitation including Physiotherapy in the second week
of September 2023 and fitting of prosthetic legs. That is
when I came to know about the above suit from
some family members who visited the hospital in
the third week of September 2023 and also about
false claim of ownership by the plaintiff in respect
of the suit property. Immediately I consulted the
present counsel and came to know about me being placed
as exparte in the above suit. Hence this application….”
[Emphasis Supplied]
24. In any event, the record also reflects that the address
st
of the petitioner/B.C.Ramesh as appearing in the 1 suit
nd
and the 2 suit is the same address as appearing in this
writ petition. It is not the case of B.C.Ramesh that the
address was incorrect or that he was not available. It has in
fact been admitted in the pleadings that the address was
used by him including as a correspondence address. In
addition, service was also effected on him by publication.
Thus, it cannot be disputed by the applicant/petitioner B.C.
Ramesh that service was effected on him in both matters.
25. It is also apposite at this stage to set out Order IX Rule
7 of the CPC which is extracted below:
“7. Procedure where defendant appears on day of
adjourned hearing and assigns good cause for
previous non-appearance.
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Where the Court has adjourned the hearing of the suit ex-
parte and the defendant, at or before such hearing,
appears and assigns good cause for his previous non-
appearance, he may, upon such terms as the Court
directs as to costs or otherwise, be heard in answer to
the suit as if he had appeared on the day, fixed for his
appearance.”
[Emphasis Supplied]
25.1 The provision sets out that where a defendant who has
been proceeded with ex parte appears and assigns good
cause for his previous non-appearance, the Court may on
such terms as the Court deems fit, direct as to costs or
otherwise be heard. Thus, such defendant has necessarily
to show ‘good cause’ for his previous non-appearance.
26. The requisites of the provision under Order IX Rule 7
of the CPC came to be considered by the Supreme Court in
7
Arjun Singh v. Mohindra Kumar , wherein it was held
that where the Court has adjourned the hearing of the suit
ex parte, the defendant, upon appearing at or before the
adjourned hearing, must assign good cause for his previous
non-appearance to seek the benefit of being heard in
7
AIR 1964 SC 993
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answer to the suit as if he had appeared on the date
originally fixed. The Supreme Court further clarified that, in
the absence of good cause, the defendant cannot claim to
be restored to the position he would have occupied had he
appeared on the earlier date, but must accept the
proceedings already conducted and participate in the suit
from the stage at which he appears. The relevant extract is
set out below:
“28. And referring to the effect of the rejection of
application made under O. XI, r. 7, he added : "If a party
does appear on the day to which the hearing of the suit is
adjourned, he cannot be stopped from participating in the
proceedings simply because he did not appear on the first
or some other hearing. But though he has the right to
appear at an adjourned hearing, he has no right to
set back the hands of the clock. Order IX. r. 7 makes
that clear. Therefore, unless he can show good
cause, he must accept all that has gone before and
be content to proceed from the stage at which he
comes in ."
xxx xxx xxx
33. On this submission, which we might mention has been
urged for the first time in this court, the first question that
arises is whether the Court has the inherent jurisdiction
which learned counsel contends that it has. For the
purpose of the discussion of the question in the context of
the relevant provisions of the Code, it is unnecessary to
embark on any detailed or exhaustive examination
of the circumstances and situations in which it could
be predicated that a Court has the inherent jurisdiction
which is saved by s. 151 of the Civil Procedure Code. It is
sufficient if we proceed on the accepted and admitted
limitations to the existence of such a jurisdiction. It is
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common ground that the inherent power of the Court
cannot override the express provisions of the law. In other
words, if there are specific provisions of the Code dealing
with a particular topic and they expressly or by necessary
implication exhaust the scope of the powers of the Court
or the jurisdiction that may be exercised in relation to a
matter the inherent power of the Court cannot be invoked
in order to cut across the powers conferred by the Code.
The prohibition contained in the Code need not be express
but may be implied or be implicit from the very nature of
the provisions that it makes for covering the contingencies
to which it relates. We shall confine our attention to
the topic on hand, namely applications by
defendants to set aside ex parte orders passed
against them and reopen the proceedings which had
been conducted in their absence. Order IX, r. 1
requires the parties to attend on the day fixed for their
appearance to answer the claim of the defendant. Rule 2
deals with a case where the defendant is absent but the
Court from its own record is apprised of the fact that the
summons has not been duly served on the defendant in
order to acquaint him with the proceedings before the
Court. Rule 2 contains a proviso applicable to cases where
notwithstanding the absence of service of summons, the
defendant appears. Rule 3 deals with a case where the
plaintiff along with the defendant is absent when the suit
is called on and empowers the Court to dismiss the suit.
Rule 5 deals with a case where the defendant is not served
properly and there is default on the part of the plaintiff in
having this done. Having thus exhausted the cases where
the defendant is not properly served, r. 6(1)(a) enables
the Court to proceed ex parte where the defendant is
absent even after due service. Rule 6 contemplates two
cases : (1) The day on which the defendant fails to appear
is one of which the defendant has no intimation that the
suit will be taken up for final hearing for example, where
the hearing is only the first hearing of the suit, and (2)
where the stage of the first hearing is passed and the
hearing which is fixed is for the disposal of the suit and
the defendant is not present on such a day. The effect of
proceeding ex parte in the two sets of cases would
obviously mean a great difference in the result. So far as
the first type of cases is concerned it has to be adjourned
for final disposal and, as already seen, it would be open to
the defendant to appear on that date and defend the suit.
In the second type of cases, however, one of two things
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might happen. The evidence of the plaintiff might be taken
then and there and judgment might be pronounced. In
that case O. IX, r. 13 would come in. The defendant can,
besides filing an appeal or an application for review, have
recourse to an application under O. IX, r. 13 to set aside
the ex parte decree. The entirety of the evidence of
the plaintiff might not be concluded on the hearing
day on which the defendant is absent and something
might remain so far as the trial of the suit is
concerned for which purpose there might be a
hearing on an adjourned date. On the terms of O. IX,
r. 7 if the defendant appears on such adjourned date
and satisfies the Court by showing good cause for
his non-appearance on the previous day or days he
might have the earlier proceedings recalled - "set
the clock back" and have the suit heard in his
presence. On the other hand, he might fail in
showing good cause. Even in such a case he is not
penalised in the sense of being forbidden to take
part in the further proceedings of the suit or
whatever might still remain of the trial, only he
cannot claim to be relegated to the position that he
occupied at the commencement of the trial.
xxx xxx xxx
34. There is one other aspect from which the same
question could be viewed. O. IX, r. 7 prescribed the
conditions subject to which alone an application
competent under the opening words of that rule
ought to be dealt with. Now, the submission of Mr.
Pathak if accepted, would mean to ignore the opening
words and say that though specific power is concerned
when a suit is adjourned for hearing, the Court has an
inherent power even when (a) it is not adjourned for that
purpose, and (b) and this is of some importance, when the
suit is not adjourned at all, having regard to the terms of
O. XX, r. 1. The main part of O. IX, r. 7 speaks "of
good cause being shown for non appearance" on a
previous day. Now, what are the criteria to be applied by
the Court when the supposed inherent jurisdiction of the
Court is invoked. Non-constant it need not be identical
with what is statutorily provided in r. 7. All this only shows
that there is really no scope for invoking the inherent
powers of the Court. Lastly, that power is to be exercised
to secure the needs of justice. If at the stage of r. 7 power
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is vested in the Court and after the decree is passed O. IX,
r. 13 becomes applicable and the party can avail himself
of that remedy, it is very difficult to appreciate the ends
of justice which are supposed to be served by the Court
being held to have the power which the learned counsel
says must inhere in it. In this view it is unnecessary to
consider whether to sustain the present submission the
respondent must establish that the court was conscious
that it lacked specific statutory power and intended to
exercise an inherent power that it believed it possessed to
make such orders as may be necessary for the ends of
justice.”
[Emphasis Supplied]
26.1 The issue relating to the consideration of a belated
fling of an application under Order IX Rule 7 of the CPC
came to be considered by the Supreme Court in K.B. Lal v.
8
Gyanendra Pratap . The Supreme Court held that the
expression “sufficient cause” must be construed liberally to
advance the ends of justice; however, the discretion vested
in the Court is required to be exercised judiciously and
cannot be extended where gross negligence, want of due
diligence, or the absence of a reasonable and satisfactory
explanation is established. The conduct of the applicant and
the explanation offered for the period of inaction are,
therefore, material considerations in determining whether
8
2024 SCC OnLine SC 508
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the relief sought under Order IX Rule 7 CPC warrants being
granted. The relevant extract is set out below:
“9. Whether an application filed by the appellant, under
Order IX, Rule 7 of the CPC can be allowed, after a delay
of almost 14 years, is the only question before us. Was
there a sufficient cause for filing such a belated
application?
Although the term ‘sufficient cause’ has not been
defined in the Limitation Act, it is now well-settled
through a catena of decisions that the term has to
be construed liberally and in order to meet the ends
of justice. The reason for giving the term a wide and
comprehensive meaning is quite simple. It is to
ensure that deserving and meritorious cases are not
dismissed solely on the ground of delay.
10. There is no gainsaying the fact that the
discretionary power of a court to condone delay
must be exercised judiciously and it is not to be
exercised in cases where there is gross negligence
and/or want of due diligence on part of the litigant
(See Majji Sannemma @ Sanyasirao v. Reddy
Sridevi, (2021) 18 SCC 384). The discretion is also
not supposed to be exercised in the absence of any
reasonable, satisfactory or appropriate explanation
for the delay (See P.K. Ramachandran v. State of
Kerala, (1997) 7 SCC 556). Thus, it is apparent that
the words ‘sufficient cause’ in Section 5 of the
Limitation Act can only be given a liberal
construction, when no negligence, nor inaction, nor
want of bona fide is imputable to the litigant (See
Basawaraj v. Special Land Acquisition Officer.,
(2013) 14 SCC 81). The principles which are to be
kept in mind for condonation of delay were
succinctly summarised by this Court in Esha
Bhattacharjee v. Managing Committee of
Raghunathpur Nafar Academy, (2013) 12 SCC 649 ,
and are reproduced as under:
“21.1. (i) There should be a liberal, pragmatic,
justice-oriented, non-pedantic approach while
dealing with an application for condonation of
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delay, for the courts are not supposed to legalise
injustice but are obliged to remove injustice .
21.2. (ii) The terms “sufficient cause” should be
understood in their proper spirit, philosophy and purpose
regard being had to the fact that these terms are
basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and
pivotal the technical considerations should not be given
undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to
deliberate causation of delay but, gross negligence
on the part of the counsel or litigant is to be taken
note of.
21.5. (v) Lack of bona fides imputable to a party
seeking condonation of delay is a significant and
relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause public
mischief because the courts are required to be vigilant
so that in the ultimate eventuate there is no real failure
of justice.
21.7. (vii) The concept of liberal approach has to
encapsulate the conception of reasonableness and
it cannot be allowed a totally unfettered free play.
21.8. (viii ) There is a distinction between inordinate
delay and a delay of short duration or few days, for
to the former doctrine of prejudice is attracted
whereas to the latter it may not be attracted. That
apart, the first one warrants strict approach
whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a
party relating to its inaction or negligence are
relevant factors to be taken into consideration. It
is so as the fundamental principle is that the courts
are required to weigh the scale of balance of
justice in respect of both parties and the said
principle cannot be given a total go by in the name
of liberal approach.
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21.10. (x) If the explanation offered is concocted,
or the grounds urged in the application are
fanciful, the courts should be vigilant not to expose
the other side unnecessarily to face such a
litigation. ………………………..”
(emphasis supplied)
Having perused the application under Order IX, Rule
7 of the CPC dated 23.11.2020, filed by the
appellant, and the accompanying affidavit, wherein
the appellant had sought the benefit of Section 5 of
the Limitation Act, for condonation of a delay of
almost 14 years, we find there was no satisfactory
or reasonable ground given by the appellant
explaining the delay. We say this for two reasons. First,
it is an admitted position by the appellant himself that
upon an inspection of the case file in the year 2011, he
came to know about the order dated 06.09.2006, by which
the Trial Court had decided to proceed ex-parte against
him. What prevented the appellant from filing the
application under Order IX, Rule 7 that year itself has not
been satisfactorily explained at all, as the first application
was only filed in the year 2017. Secondly, the explanation
offered by the appellant, which is that the advocate
appointed by him did not pursue the matter diligently, and
then another advocate was appointed by him who
inadvertently forgot to file the application does not find
support from the records . What is clear is that the
appellant has been grossly negligent in pursuing the
matter before the trial court . Thus, the trial court, the
revisional court as well as the High Court, were correct in
dismissing the belated claim of the appellant. We find no
reason to interfere with the impugned order dated
19.05.2022 of the High Court of Judicature at Allahabad.”
[Emphasis Supplied]
26.2 A similar issue came to be considered by this Court,
while sitting in the Delhi High Court, in Geetanjali Kalra &
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9
Ors. vs. Gaurav Gulati , wherein, while examining an
application under Order IX Rule 7 of the CPC seeking to set
aside the order proceeding ex parte, it was held that where
a defendant establishes good cause for previous non-
appearance, the defendant may be permitted to contest the
suit, subject to the terms imposed by the Court. It was
further observed that even where good cause is not
established, the defendant is not precluded from
participating in the subsequent proceedings, although the
defendant cannot claim restoration to the position occupied
at the commencement of the trial. The relevant extract is
set out below:
“13. The provisions of Order IX Rule 7 of the CPC
provide for the fact where the Court has adjourned
the hearing of the suit ex-parte and the Defendant,
at or before such hearing, appears and assigns good
cause for Defendant’s previous non-appearance, the
Court may, set such terms or direct cost or
otherwise and the defendant can be heard in answer
to the suit as if the Defendant had appeared on the
day, which was fixed for his appearance .
13.1 A Coordinate Bench of this Court in the case of
East India Cotton Manufacturing Co. Ltd. v. S.P.
Gupta [1985 SCC OnLine Del 79], while relying on
the judgement of the Supreme Court in the case of
Sangram Singh v. Election Tribunal, Kotah [See: AIR
1955 SC 425] and in the case of Arjun Singh v.
2024 SCC OnLine Del 9859
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Mohindera Kumar [See; A.I.R. 1964, S.C. 993
(1004)], has held that if the Defendant shows good
cause for his non-appearance on previous date or
dates of ex-parte hearing of the suit, the Defendant
can be allowed to contest the suit. The relevant
extract of the East India Cotton Manufacturing Co. Ltd.
case is reproduced below:
“6. The questions for decision are whether the
application under Order 9 Rule 7 of the Code was within
time and it discloses good cause for setting aside the
Order proceeding ex-parte. Order 9 Rule 7 of the Code
reads as under:—
“Where the Court has adjourned the hearing of the suit
ex-parte, and the defendant, at or before such hearing,
appears and assigns good cause for his previous non-
appearance, he may, upon such terms as the court
directs, as to costs or otherwise, be heard in answer to
the suit as if he had appeared on the day fixed for his
appearance.”
The words “Where the Court has adjourned the hearing
of the suit exparte”, means that there is to be hearing
on the date to which the suit stands adjourned. If the
“Hearing” of the suit has been completed and the Court
has adjourned the suit merely for the purpose of
pronouncing judgment, there is clearly no adjournment
of “the hearing” of the suit and in such circumstances
Order 9 Rule 7 would have no application. But if the
suit has been adjourned for hearing ex-parte such as
for evidence etc. and it is further adjourned for
arguments it would mean that ex-parte hearing
of the suit was not completed and the hearing of
the suit ex-parte was adjourned. Under this rule
if an application is made on any date fixed for ex
parte hearing of the suit showing good cause for
his nonappearance on previous date of dates, the
application would be in accordance with Order 9
Rule 7 of the Code. If the applicant establishes
good cause for his previous non-appearance the
Court would have jurisdiction to set aside the
order proceeding ex-parte.”
7. In Sangram Singh v. Election Tribunal, Kotah, AIR
1955 SC 425 it has been held that:—
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“If at an adjourned hearing the defendant
appears and shows good cause for his “previous
non-appearance.” He can be heard in answer to
the suit as if he had appeared on the day fixed for
his appearance.” This cannot be read to mean
that he can not be allowed to appear at all if he
does not show good cause. All it means is that he
can not be relegated to the position he would
have occupied if he had appeared. If a party does
appear on “the day to which the hearing of the
suit is adjourned”, he can not be stopped from
participating in the proceedings simply because
he did not appear on the first or some other
hearing”.
Further, if the defendant wants to put in written
statement he can do so only if he shows good cause for
his previous absence. In Arjun Singh v. Mohindera
Kumar, A.I.R. 1964, S.C. 993 (1004) it has been
observed as follows:
“ On the terms of Order 9 Rule 7 if the defendant
appears on such adjourned date and satisfies the
court by showing good cause for his non-
appearance on the previous day or days he might
have the earlier proceedings recalled and have the
suit heard in his presence. On the other hand, he
might fail in showing good cause. Even in such a case he
is not penalised the sense of being forbidden to take part
in the further proceedings of the suit or whatever might
still remain of the trial, only he cannot claim to be
relegated to the position that he occupied at the
commencement of the trial”.
8. The law laid down by the Supreme Court makes
it clear that if the defendant shows good cause for
his non-appearance on previous date or dates of
ex-parte hearing of the suit, he can be allowed to
file the written statement and contest the suit and
if no good cause is shown he can be allowed to take
part in further proceedings of the suit…”
[Emphasis Supplied]
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27. The petitioner has relied on the judgment in V. Nalina
case passed by this Court, wherein a Co-ordinate Bench of
this Court, while dealing with an issue of whether 1,335
days delay in filing an application under Order IX Rule 7 of
the CPC could be condoned, held that where rights of parties
in respect of immovable properties are involved,
substantive justice ought to prevail over technical
considerations and accordingly, the Court allowed the
application subject to costs. The judgment in that case is
however distinguishable, since the judgment primarily
relied on the fact that there was no deliberate delay or
negligence. In the present case, however, there is in fact no
st
explanation for the delay of 7 years in the 1 suit and the
nd
delay of 3 years in the 2 suit - no explanation for the
delay of 7 years or 3 years has been given by the applicant.
Thus, no cause whatsoever has been set out.
27.1 It cannot also be said that the litigant is not benefitting
from the delay. In circumstances where the Courts can see
that the delay is bona fide and genuine, the Court could
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condone the same. However, sufficient cause for such
condonation is required to be shown, which is absent in the
present case.
28. In Tarlochan Singh & Ors. v. Union Bank of India
10
& Others , decided on 11.12.2012, a Coordinate Bench in
the Delhi High Court, while dealing with the issue of
condonation of an inordinate delay of 2,360 days in filing an
application under Order IX Rule 7 CPC, held that although
the length of delay is not as relevant as the acceptability of
the explanation offered, an inordinate delay requires the
Court to examine the explanation with greater care and
caution to rule out gross negligence, deliberate inaction or
lack of bona fides. It was further held that a litigant is
expected to diligently pursue his own case and cannot
remain inactive for years and thereafter attribute the entire
blame to the counsel. Finding the explanation vague,
sketchy and unsatisfactory, the Court declined to condone
10
2012 SCC OnLine Del 5357
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the delay and dismissed the applications. The relevant
extract is set out below:
“12. It is settled law that condonation of delay is a
matter of discretion of the court and ordinarily, the
court should be liberal in condoning the delay if it is
satisfied that the explanation offered by a party is
bonafide and sufficient and advances the cause of
justice . Further, the courts should not adopt pedantic
approach and insist that each and every day's delay be
explained by the applicant. The length of delay is not
as relevant as the acceptability of the explanation
offered by the litigant. As observed by the Supreme
Court in the case of N. Balakrishnan v. M.
Krishnamoorthy, (1998) 7 SCC 123, the time limit
fixed for approaching the court in different situation
is not because on expiry of such time, a bad cause
would transform into a good cause. The aforesaid
parameters have been reiterated in a number of
decisions including in the cases of Sangram Singh v.
Election Tribunal, Kotah, AIR 1995 SC 425; State of
Nagaland v. Lipok Ao, (2005) 3 SCC 752 : AIR 2005
SC 2191; New India Insurance Co. Ltd. v. Shant
Mishra, (1975) 2 SCC 840 and State of Kerala v. E.K.
Kuriyipe, 1981 Supp SCC 72. At the end of the day,
the courts are meant to advance substantial justice
and adjudicate disputes between the parties.
However, when the delay is as inordinate as it is in
the present case, then the explanation offered by
the applicants must be examined by the court with
greater care and caution to rule out gross
negligence, deliberate inaction or lack of bonafides.
13. In the present case, the defendants No. 2 & 3 have
sought condonation of delay of 2360 days in filing the
accompanying application, under the provisions of Order
IX Rule 7 CPC. The applicants/defendants No. 2 & 3 have
mainly referred to their ill health to explain the lack of
diligence on that part in pursuing the present case. That
apart, they have sought to blame their previous counsel,
who they claimed they had trusted, for pursuing the
present proceedings on their behalf. The aforesaid
explanation offered by the defendants No. 2 & 3 for
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seeking condonation for such a prolonged period is to say
the least, extremely vague and sketchy.
14. It has been observed time and again that a
litigant is expected to be diligent in pursuing his
own case and he cannot remain indolent and
inactive and then lay the entire blame at the door of
his counsel when found in default. The claim of the
applicants/defendants No; 2 & 3 that they had executed a
vakalatnama in favour of the previous counsel is not borne
out from the record, inasmuch no vakalatnama has been
filed on their behalf in the present case. Further, the claim
of the defendants No. 2 & 3 that they had prepared a
written statement and had handed it over to their counsel
in September 2004, for the same to be filed, is also not
borne out upon perusal of the records, as no written
statement finds place on record nor has any date of filing
of diary number been furnished to substantiate the said
submission.
xxx xxx xxx
18. In view of the aforesaid facts and circumstances, the
court is of the opinion that there is no explanation worth
the name, much less a bonafide explanation offered by the
applicants/defendants No. 2 & 3 for seeking condonation
of delay of a long stretch of 2360 days in filing an
application under Section 5 of the Limitation Act. Even
otherwise, the court has perused the averments made in
the application filed by the applicants/defendants No. 2 &
3 under Order IX Rule 7 CPC for setting aside the ex-parte
order dated 8.9.2004 and the explanation offered is
virtually the same as has been stated in the application for
condonation of delay, except for the fact that the
defendants No. 2&3 have additionally questioned the
nature of the settlement that has been arrived at between
the plaintiffs and the defendant No. 1/Bank. The said
explanation is found to be insufficient and highly
unsatisfactory for the court to exercise its discretion
in favour of the applicants/defendants No. 2 & 3. It
cannot be stated that the defendants No. 2&3 have
acted with reasonable diligence in defending the
present case. The gross negligence and deliberate
inaction on their part is sufficient to deprive them of
the protection granted by Section 5 of the Limitation
Act .”
[Emphasis Supplied]
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29. As stated above, the affidavits annexed to the
applications filed by the petitioner are pari materia to each
other. They both set out that the summons served were
‘unclaimed’. They do not even take into consideration that
in the 1st suit the service was effected by publication in a
daily newspaper. They also do not set out any explanation
whatsoever as to why the petitioner/B.C.Ramesh, despite
st
being the brother of the plaintiff in the 1 suit, did not
appear or contest the suit despite service and how he was
not aware of the litigation until 2023. The sketchy reasons
given are feeble at best and show a complete lack of
bonafides.
30. There is another aspect to the matter as well. From an
overall conspectus of the facts which have been narrated
above, it can be seen that initially a sale was effected by
the B.C.Ramesh for good and adequate consideration of the
suit schedule property in the year 2016. After the registered
sale deed was signed, the sister of the petitioner Dr.Shobha
filed a suit in the year 2017 stating that the petitioner/B.C.
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Ramesh owned only half share in the schedule property and
that the sale be set aside to the extent of her half share.
st
This was the 1 suit. After a lapse of about 4 years of the
st
1 suit, the respondent No.1/V.Venkatesh who was the
purchaser of the schedule property, filed a suit stating that
since the challenge is only to the 50% share, a declaration
be sought that remaining 50% be conveyed to the
nd
purchaser V. Venkatesh, which was the 2 suit. Even in the
nd
2 suit only the sister i.e., Dr. Shobha appeared and there
was no presence throughout by the brother B. C. Ramesh.
It was only when an application for judgments on
nd
admissions was filed in the 2 suit under Order XII Rule 6
CPC by V.Venkatesh that these applications were filed.
Thus, clearly, these applications were filed only to thwart a
judgment on admissions or a judgment in these matters.
31. The lack of bonafides on the part of the petitioner can
also be seen from the fact that he has been unable to show
sufficient cause for the long delay. The medical illness that
he has sought to rely upon, is also admittedly to have
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happened to him in February 2023. Prior thereto, there was
no sufficient cause for his non-appearance. Infact as per his
pleadings, he was regularly travelling for business which
means that he was sufficiently healthy. Thus, and for the
reasons aforegoing, no sufficient cause has been shown by
the petitioner to allow his applications IA No.13 in
O.S.No.3721/2016 and IA No.5 in O.S.No.3455/2020, both
filed under Order IX Rule 7 CPC to set aside the ex-parte
order passed against defendant No.1.
32. So far as concerns the two applications being IA No.15
st nd
in the 1 suit and IA No. 7 in the 2 suit filed under Section
151 of the CPC for permission to file the written statement,
in addition to the incorrect provision of law being invoked,
there is nothing in these applications, to permit the written
statements to be filed either. In fact, the contentions in
these applications are also exactly the same as the
applications being IA.13 and IA.5 under Order IX Rule 7
filed for setting aside the ex-parte order against B.C.
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Ramesh which would not be relevant for deciding these
applications.
33. So far as concerns the applications I.A.14 and I.A.6
filed under Order III Rule 2 read with Section 151 of the
CPC, these applications set out that due to the health
condition of the petitioner, he seeks permission to be
represented through a power of attorney holder.
34. In the Objections that have been filed by the
respondent No. 1/V.Venkatesh to these applications, it is
stated that the power to depose in place of a principal
extends only in respect to depositions qua acts done by a
GPA holder in exercise of the power granted. A GPA holder
cannot depose for a principal in respect of which the matter
only the principal has personal knowledge of. It is apposite
to set out the relevant extract of the Objections filed below:
“5. It is submitted that the averments made in para No.4
of the application that due to his health condition, the
Defendant No.1 not able to look after the affairs of
the above suit personally and hence sought to grant
permission to represent through his power of
attorney holder etc. are all hereby denied as false,
incorrect and misleading.
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6. It is submitted that the power to depose in place of
the principal extends only to depositions in respect
of 'acts' done by the GPA holder in exercise of the
power granted by the instrument and that GPA
holder cannot depose for the principal in respect of
matters of which only the principal can have
personal knowledge and in respect of which the
principal is liable to be cross examined. Hence the
power of attorney holder cannot be permitted to
represent the instant case.
7. Where the law requires or contemplated proceeding, to
establish or prove something his "state of mind" or
"conduct", normally the person concerned alone has to
give evidence and not an attorney holder. In the instant
case, it is the Defendant No.1 along who has
conducted the entire transaction alone has to
depose in the case not by his power of attorney.
Hence the application as filed is liable to be
dismissed.
8. Without prejudice it is submitted that the power of
attorney is not been duly registered as provided under
law. Hence the power of attorney does not confer any right
or power. Therefore the application is liable to be
rejected. ”
[Emphasis Supplied]
st
[
35. An examination IA No.14 in the 1 suit and IA No.6
nd
in the 2 suit reflects that there is no averment made in
either application setting out that that the POA has any
knowledge whatsoever of the transaction in issue or on
what basis the POA would depose in the matter. The only
averment that has been set out is that the Petitioner is
suffering from diabetes and that his legs were amputated
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hence he will not be able to contest the matter. The
st
relevant extract of IA No.14 in the 1 suit, which is pari
nd
materia to IA No.6 in the 2 suit, is extracted below:
“3. I state that I am suffering from chronic diabetes from
a very long time and was in need of constant medical
attention due to which I was prevented from travelling. In
the meantime, my health deteriorated and I was admitted
in a hospital and was operated upon and lower legs
amputated abroad in the month February of 2023 and
remained in hospital. I was operated and amputated
with both the lower legs because of my worsened
health and to prevent threat to my life. Thereafter I
came to Bangalore for rehabilitation including
Physiotherapy in the second week of September
2023 and fitting of prosthetic legs. That is when I
came to know about the above suit from some
family members who visited the hospital in the third
week of September 2023.
4. I state that due to my health condition, I am not
able to look after the affairs of the above suit
personally and therefore it is just and necessary to
grant permission for me to represent through my
power of attorney holder. Hence, this application. ”
[Emphasis Supplied]
36. The Supreme Court in the case of Janki Vashdeo
11
Bhojwani v. Indusind Bank Ltd. while clarifying the
position of law, has held that the Power of Attorney can only
depose, cannot give evidence about facts which are not
11
(2005) 2 SCC 217
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within its personal knowledge or which are within the
knowledge of only the person they represent. The relevant
extract of the judgment, is set out below:
“12. In the context of the directions given by this Court,
shifting the burden of proving on to the appellants that
they have a share in the property, it was obligatory on the
appellants to have entered the box and discharged the
burden by themselves. The question whether the
appellants have any independent source of income
and have contributed towards the purchase of the
property from their own independent income can be
only answered by the appellants themselves and not
by a mere holder of power of attorney from them.
The power-of-attorney holder does not have
personal knowledge of the matter of the appellants
and therefore he can neither depose on his personal
knowledge nor can he be cross-examined on those
facts which are to the personal knowledge of the
principal.
13. Order 3 Rules 1 and 2 CPC empower the holder
of power of attorney to “act” on behalf of the
principal. In our view the word “acts” employed in
Order 3 Rules 1 and 2 CPC confines only to in respect
of “acts” done by the power-of-attorney holder in
exercise of power granted by the instrument. The
term “acts” would not include deposing in place and
instead of the principal. In other words, if the
power-of-attorney holder has rendered some “acts”
in pursuance of power of attorney, he may depose
for the principal in respect of such acts, but he
cannot depose for the principal for the acts done by
the principal and not by him. Similarly, he cannot
depose for the principal in respect of the matter of
which only the principal can have a personal
knowledge and in respect of which the principal is
entitled to be cross-examined.”
[Emphasis Supplied]
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36.1 In addition, the issue relating to the scope of authority
of a Power of Attorney holder to depose on behalf of the
principal came to be considered by the Supreme Court in
12
Rajesh Kumar v. Anand Kumar , wherein, while
reiterating the principles laid down in Janki Vashdeo case,
it was held that a Power of Attorney holder may depose in
respect of acts performed by him pursuant to the authority
conferred under the instrument, but cannot depose in place
of the principal in respect of acts performed by the principal
or matters which are within the exclusive personal
knowledge of the principal and in respect of which the
principal is liable to be cross-examined. The relevant extract
is set out below:
“21. Having noticed the three judgments of this Court in
Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v.
Indusind Bank Ltd., (2005) 2 SCC 217 : (2005) 123 Comp
Cas 154] , Man Kaur [Man Kaur v. Hartar Singh Sangha,
(2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239] & A.C.
Narayanan [A.C. Narayanan v. State of Maharashtra,
(2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343 : (2013) 180
Comp Cas 258] , we are of the view that in view of Section
12 of the Specific Relief Act, 1963, in a suit for specific
performance wherein the plaintiff is required to aver and
prove that he has performed or has always been ready
and willing to perform the essential terms of the contract,
a power-of-attorney holder is not entitled to depose in
12
(2024) 13 SCC 80
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place and instead of the plaintiff (principal ). In other
words, if the power-of-attorney holder has rendered
some “acts” in pursuance of power of attorney, he
may depose for the principal in respect of such acts,
but he cannot depose for the principal for the act
done by the principal and not by him. Similarly, he
cannot depose for the principal in respect of the
matter of which only the principal can have personal
knowledge and in respect of which the principal is
entitled to be cross-examined. If a plaintiff, in a suit
for specific performance is required to prove that he was
always ready and willing to perform his part of the
contract, it is necessary for him to step into the witness
box and depose the said fact and subject himself to cross-
examination on that issue. A plaintiff cannot examine
in his place, his attorney holder who did not have
personal knowledge either of the transaction or of
his readiness and willingness. The term “readiness
and willingness” refers to the state of mind and
conduct of the purchaser, as also his capacity and
preparedness, one without the other being not
sufficient. Therefore, a third party having no
personal knowledge about the transaction cannot
give evidence about the readiness and willingness .”
[Emphasis Supplied]
VI. Conclusion
37. The learned Trial Court has found that the conduct of
the petitioner reveals that he has not acted diligently and
that the applications filed by him have been filed for the
purpose of abuse of process of law and thus has dismissed
these applications. Given the discussions aforegoing, this
Court finds no ground to interfere with this finding of the
learned Trial Court.
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38. These petitions are accordingly dismissed. It is
clarified, however, that the parties are at liberty to agitate
all contentions before the Trial Court, albeit in accordance
with law. All pending applications stand closed.
Sd/-
(TARA VITASTA GANJU)
JUDGE
JJ/KS
List No.: 2 Sl No.: 1
Digitally signed by TARA
VITASTA GANJU
Location: HIGH COURT
OF KARNATAKA
51