Brother’s Bid To Set Aside Ex-Parte Orders In Sister’s And Buyer’s Property Suits Fails After Unexplained Years: Karnataka HC

Dr. Shoba Devi sued to have a 2016 sale deed executed by her brother, B.C. Ramesh Kumar, declared not binding on her and for an injunction. Ramesh was proceeded ex parte in that suit after service by newspaper publication in 2017.

The purchaser, V. Venkatesh, later filed a separate suit seeking recognition of his claimed half share and other reliefs; Ramesh was proceeded ex parte in that suit in 2020 after summons were returned “unclaimed”.

In November 2023, Ramesh applied under Order IX Rule 7 CPC to set aside the ex parte orders, sought leave to file written statements, and sought permission to act through a power-of-attorney holder, citing travel, chronic diabetes and the amputation of both legs in February 2023.

The trial court dismissed the applications, prompting these Article 227 petitions.

Order IX Rule 7 CPC permits a defendant, who appears before an adjourned ex parte hearing, to be heard as if present on the original date if the defendant shows “good cause” for the earlier non-appearance; absent good cause, the defendant may participate in further proceedings but cannot claim restoration to the earlier stage (*Arjun Singh v. Mohindra Kumar*).

“Sufficient cause” is to be construed in a justice-oriented manner, but relief is not warranted where gross negligence, want of due diligence, or an inadequate explanation is shown (*K.B. Lal v. Gyanendra Pratap*).

A postal endorsement of “unclaimed” may support a rebuttable presumption of service where the notice was correctly addressed and dispatched; the addressee may rebut it by showing lack of knowledge or other relevant circumstances (*K. Bhaskaran v. Sankaran Vaidhyan Balan*; *C.C. Alavi Haji v. Palapetty Muhammed*).

Under Order III Rules 1 and 2 CPC, a power-of-attorney holder may testify about acts performed by the holder, but cannot replace the principal as a witness on matters within the principal’s personal knowledge (*Janki Vashdeo Bhojwani v. Indusind Bank Ltd.*; *Rajesh Kumar v. Anand Kumar*).

The Court found that Ramesh did not dispute the address used for service and had acknowledged using it for correspondence. His applications did not adequately explain why he failed to appear for years, particularly in the first suit, where service had also been effected by publication.

His claimed amputation occurred in 2023 and did not explain his earlier non-appearance; the applications were filed only after Venkatesh sought judgment on admissions in the second suit. The Court therefore found no sufficient cause and considered the explanations inadequate to justify reopening the proceedings.

The requests to file written statements relied on the same deficient grounds. The applications for power-of-attorney representation did not establish the proposed holder’s knowledge of the transaction; in any event, the holder could not testify in Ramesh’s place about matters within Ramesh’s personal knowledge.

Both writ petitions were dismissed. The parties remained at liberty to raise their contentions before the trial court in accordance with law, and pending applications were closed.