R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7H DAY OF APRIL2022BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY WRIT PETITION No.41411 OF2017(GM-CPC) BETWEEN: Sri. M.N.Swamigowda, S/o Narasegowda, Aged about 61 years, R/at Door No.2669, 4th Cross, Snake Shyam Road, 2nd Stage, Vijayanagar, Mysuru-570 017. .. Petitioner ( By Sri Datta Prasad, Advocate for Sri P.N.Manmohan, Advocate ) And : Sri Marigowda A, S/o Late Appaji Gowda, Aged about 65 years, Special Land Acquisition Officer, Mangaluru City Corporation, Lal Bagh, Mangaluru-575 004. And also R/at Behind Divya Kripa Convent, Nagoona Hally Post Office, Srirangapatna Taluk, Mandya District-571 438. .. Respondent ( By Sri G.Manivannan, Advocate ) WP.No.41411/2017 2 This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 08.08.2017, passed on IA No.13 in O.S.No.181/2014, on the file of Additional Small Causes Court, Mysuru (produced as Annexure-G) and consequently reject IA No.13 and to set aside the order dated 08.08.2017, passed on IA No.15 in O.S.No.181/2014, on the file of Additional Small Causes Court, Mysuru (produced as Annexure-G) and consequently reject IA No.15 and to pass such other and further orders as deem fit in the facts and circumstances of the case in the interest of justice and equity. This Writ Petition coming on for Orders through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following: ORDER
The present petitioner as a plaintiff had instituted a suit in O.S.No.563/2010, in the Court of Prl.Civil Judge (Sr.Dn.) & C.J.M., at Mysuru, against the present respondent arraying him as defendant for the relief of recovery of money. According to both parties, the said O.S.No.563/2010 was later renumbered as O.S.No.181/2014 and was made over to the Court of learned Addl.Small Causes Judge at Mysuru, (hereinafter for brevity referred to as `trial Court’). According to the petitioner herein since the defendant did not appear in the suit, he was placed ex parte and the plaintiff was permitted WP.No.41411/2017 3 to lead his evidence. As such, the plaintiff led his evidence as PW-1 on 20.11.2010 and got marked documents from Exs.P-1 to P-52. It is thereafter the defendant appeared and filed two interlocutory applications i.e., IA.No.13 under Section 34 of the Karnataka Stamp Act, 1957 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC’), seeking a direction to the plaintiff to pay the duty and penalty on the alleged agreement which was marked as Ex.P-1 on 20.11.2010 and IA.No.15 under Order XIII Rule 1 read with Section 151 of CPC, seeking a direction to the plaintiff to produce the original of the alleged Agreement dated 12.03.2006. The trial Court by its impugned order dated 08.08.2017, allowed both the IAs., impounded the Agreement at Ex.P-1 and directed the plaintiff to pay the deficit stamp duty and penalty of a sum of `4,18,000/- and also directed the plaintiff to produce the original Agreement dated 12.03.2006. Aggrieved by the same, the plaintiff in the trial Court is before this Court as a petitioner. WP.No.41411/2017 4 2. The respondent is being represented by his learned counsel.
3. Initially learned counsel for the petitioner submitted his detailed arguments contending that the impugned order does not sustain in the eye of law, as such deserves to be set aside. However, when he was still to continue his arguments, it was brought to the notice of the Court by the learned counsel for the respondent that the trial Court has not at all passed any order on the application of the defendant seeking recalling of the order placing him ex parte and permitting him to contest the matter. At that stage, the matter was stopped from hearing further on the impugned order and the trial Court record which had already been summoned and placed before the Court was verified.
4. By a verification of the trial Court records, it is noticed that the Original Suit was initially listed to be called on 23.10.2010, however, on the said day, mentioning that the Presiding Officer was on leave, the case was called and WP.No.41411/2017 5 stood adjourned to 22.11.2010 by the incharge Judge. Before the said regular date, which was on 22.11.2010, the matter got advanced at the application of the plaintiff and it was taken up on 25.10.2010, on which day, an application under Order V Rule 20 of CPC filed by the plaintiff seeking substituted service of summons upon the unserved defendant came to be allowed. Though the order sheet does not specifically mention, however, a perusal of the said application go to show that the application was made seeking permission to carry out substituted service of summons through affixture and the next date of hearing was fixed as 15.11.2010. On the said day, when the case was called, learned counsel for the plaintiff had remained absent. However, the office has put a shara that notice to defendant No.1 by affixture was served. The matter stood adjourned to 30.11.2010. Once again the matter got advanced by the plaintiff by moving an application under Section 151 of CPC on WP.No.41411/2017 6 18.11.2010. A perusal of the said application, which is also a part of the trial Court record, go to show that on 5.11.2010 (which ought to be 15.11.2010), due to the abstinence of the work by the learned advocates, learned counsel for the plaintiff did not appear in the Court. Accordingly, the matter was advanced from 30.11.2010 to 18.11.2010 and the defendant was called out and was shown that he had remained absent. Thereafter, the matter stood adjourned to 20.11.2010, 27.11.2010, 29.11.2010, 30.11.2010 and on 1.12.2010. On 1.12.2010, the defendant filed an interlocutory application under Order IX Rule 7 read with Section 151 of CPC, seeking to set aside the order of placing him ex parte and permit him to file Vakalat in the case. The office of the trial Court has noted the filing of such an application, however, on 1.12.2010, without making any observation in that regard, the matter simply stood adjourned to 3.12.2010 and from 3.12.2010 to 4.12.2010. WP.No.41411/2017 7 It is also to be noticed that, for adjourning the matter from 03.12.2010 to 04.12.2010, except mere mentioning of the date as 04.12.2010, there is no signature or initial of the Presiding Officer in the order sheet. However, the case was called on 04.12.2010, on which day, it is shown that defendant has filed written statement and objections to IA.No.1. From 4.12.2010, the matter went on adjourning to different dates. Ultimately, after disposing of the IA. filed by the defendant under Order VII Rule 11 (a)(d) of CPC, which came to be rejected and subsequent to the rejection of plaintiff’s IA. filed under Section 38 Rule 5 of CPC, the suit came and stood at the stage of the defendant filing IA.Nos.13 and 15, which applications came to be allowed by the trial Court, which are challenged in this writ petition.
5. Learned counsel for the respondent submitted that his application under Order IX Rule 7 read with Section 151 of CPC filed on 1.12.2010 till date has remained unattended WP.No.41411/2017 8 or without any consideration by the trial Court, as such, all further proceedings of the trial Court gets vitiated. Neither of the learned counsels in this writ petition could able to show to this Court in the order sheet of the trial Court of any order passed on the said IA. dated 1.12.2010 filed by the defendant seeking recalling of the order placing him ex parte. Thus, the application remained undecided and that all the subsequent proceedings in the trial Court have proceeded without recalling the order placing the defendant ex parte and permitted him to participate in the proceedings. Apart from the above, couple of more discrepancies also can be noticed in the matter. Firstly, as observed above, initially the suit was listed for hearing on 23.10.2010, on which day, due to the Presiding Officer going on leave, the matter stood adjourned to 22.11.2010. As such, the regular date of hearing of the suit was on 22.11.2010. However, the matter was got advanced at the instance of the plaintiff alone to 25.10.2010. From the said date i.e., 25.10.2010, till the WP.No.41411/2017 9 expiry of 22.11.2010, the matter was not at all called by the trial Court on the regular date of hearing, which was on 22.11.2010. It is needless to observe that, in the absence of the opposite party (defendant herein) when the matter is advanced, the said matter is required to be called on the regular date of hearing also, so that, the defendant if he is known about the regular date of hearing, he would appear on the said day. In case, if the opposite party (defendant herein) comes to know about the advanced date of hearing and participate in the proceeding, then, there would be no necessity of calling the matter on the regular date of hearing, from which date, the suit was advanced. Whereas, in the instant case, the defendant has throughout remained unserved till he was placed ex parte on 18.11.2010. As such, calling of the case on the regular date fixed earlier, which was on 22.11.2010, was required. Secondly, after advancing the matter on 25.10.2010, though the plaintiff could get an order for substituted service of summons, which according to the application, WP.No.41411/2017 10 was by way of affixture, but, there is no order of the Presiding Officer in the impugned order observing that the said substituted service of summons was held sufficient by the Court. It is only the office note which has mentioned that the notice to defendant No.1 by affixture was served. Even the said office note is also not authenticated by any of the officer of the Court. Irrespective of the same, it is the duty of the Court to accept the substituted service of summons or notice upon a party and to hold the said service as sufficient and then to call out the said party upon whom the substituted service of summons or notice is taken and only then to proceed to place that person as ex parte if he does not appear in the matter. None of these exercises have been done by the trial Court. However, the defendant appeared before the Court on 1.12.2010. As such, any irregularity in the acceptance of substituted service of summons through affixture need not be made as a issue at this stage. WP.No.41411/2017 11 But, what remains as a vital aspect is that, upon the application filed by the defendant under Order IX Rule 7 read with Section 151 of CPC on 1.12.2010, till date, no orders have been passed by the trial Court. On the contrary, without recording whether the substituted service of summons through affixture was sufficient, the trial Court proceeded to place the defendant ex parte and proceeded to record the evidence of the plaintiff on 20.11.2010 and permitted him to produce and mark the documents from Ex.P-1 to P-52. At the same time, without passing any order on the IA. filed under Order IX Rule 7 read with Section 151 of CPC, by the defendant on 1.12.2010, the trial Court proceeded to accept his written statement filed by the defendant on 04.12.2010. Thirdly, even after the alleged acceptance of the written statement filed by the defendant, it appears that the Court did not proceeded to frame the issues. No mentioning about framing of the issues can be found in the order sheet. Further, the learned counsel from both side WP.No.41411/2017 12 also could not able to show from the order sheet of the trial Court that any issues were framed in the suit by the trial Court even after taking on record the written statement filed by the defendant in the matter. The trial Court records also does not mention anything about the presence of any document like issues as a part of the trial Court record. Neither the order sheet depicts the framing of the issues nor is there any document to be called as issues in the trial Court records. Thus, it has to be held that the trial Court has not framed the issues to proceed further in the matter up to the stage of entertaining several IAs. filed by both side and passing the impugned order which is challenged in this writ petition.
6. Though the learned counsel for the petitioner submits that the scope of this writ petition is not about appreciating or noticing the irregularities committed by the trial Court in conducting the proceedings, but, it is only deciding the correctness of the impugned order passed on IA.Nos.13 and 15 by the trial Court, but, when prima facie WP.No.41411/2017 13 the very conduct of the Court proceedings and holding the trial in the matter appears to be in an improper manner and throwing all the procedures to the air, this Court under Article 227 of the Constitution of India, under which the present writ petition has been filed, can notice those serious irregularities committed by the trial Court which has ultimately resulted in passing the impugned order on IA.Nos.13 and 15. Therefore, the Court cannot confine its scope in this petition only to evaluate the correctness of the order passed on IA.Nos.13 and 15 and can look into the process and procedure followed by the trial Court which has led it to pass the order on IA.Nos.13 and 15. This is essential, because, had the application filed by the defendant on 1.12.2010 filed under Order IX Rule 7 read with Section 151 of CPC being decided in one way or the other, the defendant would have taken a definite stand of his choice in the matter. Further, had the trial Court framed the issues in the matter, the course that followed thereafter in the order sheet could have been different. WP.No.41411/2017 14 7. Thus, suffice it to say that, since the procedure followed by the trial Court from the date of advancing the matter from 22.11.2010 to 25.10.2010, till passing of the impugned order on IA.Nos.13 and 15, been highly irregular and as such, the entire proceedings would not get any validity in the eye of law, the trial Court is required to pass its order on the IA. filed by the defendant under Order IX Rule 7 read with Section 151 of CPC and then to proceed further in the matter in accordance with law. Needless to say that, in case the defendant is given an opportunity to appear and contest the matter by filing his written statement, the trial Court would be required to frame appropriate issues and direct both side parties to lead their evidence in the matter in accordance with law.
8. Observing accordingly and specifically observing that in the light of the above analysis, the impugned order passed on IA.No.13 filed under Section 34 of the Karnataka Stamp Act, 1957 read with Section 151 of CPC and IA.No.15, filed under Order XIII Rule 1 of CPC, WP.No.41411/2017 15 on 08.08.2017, becomes null and void in the eye of law, the Writ Petition stands disposed of. Considering the fact that the suit is of the year 2010, early disposal of the matter by the trial Court, but, not later than six months from today would be highly appreciated. In that regard, both side parties to cooperate with the trial Court for the early disposal of the matter on its merits. Sd/- JUDGE bk/