G.N.R. Babu @ S.N. Babu vs Dr. B.C. Muthappa

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

JUDGMENT

ABHAY S. OKA, J.

1. Leave granted.

2. The appellant, who is the original first defendant, has

taken an exception to the judgment and order dated 22 nd

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 Digitally signed by BALA PARVATHI Date: 2022.09.07 96 of the Code of Civil Procedure, 1908 (for short ‘CPC’). 17:32:44 IST Reason: 1

3. The first respondent who is the original plaintiff, filed a

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

Bangalore, by his judgment and order dated 19 th 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.

6. Shri Arvind Kamath, the learned senior counsel

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.

Archana Kumar & Anr.1 in support of his contention that in

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

Shankar More v. Balu Gangaram More & Ors.2 in which the

decision of this Court in the case of Bhanu Kumar Jain1 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

Kumar Jain1 a Bench of three Hon’ble Judges of this Court

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 ex parte decree was maintainable despite the

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.

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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

of Bhanu Kumar Jain1, only when the application made by a

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

dated 27th October 2014 that the summons issued to the

appellant and second respondent was returned unserved with

the remark that their respective premises were locked.

However, on 05th January 2015, the trial court ordered issue

of summons by Registered Post Acknowledgement Due at the

same address. The order sheet of 05 th 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

impugned judgment and order dated 22nd March 2016 passed

by the High Court as well as the impugned judgment and

decree dated 19th 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.

12. The parties to the appeal shall mark their presence

before the learned Principal Judge, City Civil Court at

Bangalore on Monday, the 26th 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

within maximum period of one month from 26 th 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.

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