- 1 - NC:
2024. KHC:37470 CRP No.72 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE10H DAY OF SEPTEMBER, 2024 R BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ CIVIL REVISION PETITION No.72 OF2024(M) BETWEEN1 SRI. DEVEGOWDA S/O NARAYANASWAMY, AGED ABOUT34YEARS, R/AT No.832, 3RD MAIN ROAD, 4TH BLOCK, RAJAJINAGARA BANGALORE-560010.
2. SRI D J VINAYA KUMAR S/O LATE D V JAYANNA, AGED ABOUT39YEARS, R/AT No.DODDABELAVANGALA VILLAGE, DODDABELAVANGALA HOBLI, DODDABELAVANGALA TALUK, BANGALORE RURAL DISTRICT PIN-561204.
3. SRI MOHANKUMAR D M S/O LATE MARISWAMY, AGED ABOUT38YEARS, R/AT No.DODDABELAVANGALA VILLAGE, DODDABELAVANGALA HOBLI, DODDABELAVANGALA TALUK, BANGALORE RURAL DISTRICT PIN-561204. ...PETITIONERS (BY SRI: ASHOK HARANAHALLI., SR. ADVOCATE FOR SRI. K.P. BHUVAN., ADVOCATE) AND1. SRI. ASHOKANAYAR S/O K V VELAYUDHAN, - 2 - NC:
2024. KHC:37470 CRP No.72 of 2024 AGED ABOUT55YEARS, R/AT No.304, DREAM FLOWER CLAISE, KONTHURUTHY ROAD, THEVARA KOCHI-682013 REPT BY HIS GPA HOLDER SMT SARVAMANGALA D/O SRI B H NAJEGOWDA, AGED ABOUT51YEARS, R/AT NADAVATHI VILLAGE AND POST, VIA KADUGODI, BANGALORE-560067. 2 . SMT ASHWATHAMMA W/O R GANGADHAR, MAJOR, R/A NERALAGHATTA VILLAGE, HANABE HOBLI, DODDA BALLAPURA TALUK, BANGALORE RURAL DISTRICT. 3 . SRI M NAGARAJU S/O LATE MUNIYAPPA, AGED ABOUT74YEARS, 4 . SRI M NARAYANAPPA S/O LATE MUNIYAPPA, AGED ABOUT71YEARS, 5 . SRI. SUBRAYAPPA S/O LATE MUNIYAPPA, AGED ABOUT69YEARS, RESPONDENTS3TO5ARE R/AT KOYIRA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT …RESPONDENTS (BY SRI. G. KRISHNAMURTHY., SR. ADVOCATE FOR SRI. H. RAJANNA., ADVOCATE FOR R1; SRI. SUNIL.S., ADVOCATE FOR R3 TO R5 - 3 - NC:
2024. KHC:37470 CRP No.72 of 2024 V/O DATED186.2024 NOTICE TO R2 H/S) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION115OF THE CPC, 1908 PRAYING TO CALL FOR THE RECORDS PERTAINING TO MISC. PETITION NO.10007/2019 ON THE FILE OF THE IVTH ADDITIONAL DISTRICT AND SESSIONS JUDGE BANGALORE RURUL DISTRICT, DODDABALLAPURA AND ETC. THIS CIVIL REVISION PETITION COMING ON FOR
ORDERS AND HAVING BEEN RESERVED FOR
ORDERS ON2207.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ CAV
ORDER1 The Petitioners are before this Court seeking for the following reliefs: a) Call for the records pertaining to Misc. Petition No.10007/2019 on the file of the IV Additional District and Sessions Judge, Bangalore Rural District, Doddaballapura. b) Set aside the order dated 15.12.2023 passed by the IVth Additional District and Sessions Judge, Bangalore Rural District, Doddaballapura in Misc. No.10007/2019. c) To dismiss Misc. Petition filed by the first respondent in Misc. Petition No.10007/2019 under order 41 rule 21 of Code of Civil Procedure, 1908 on the file of IV Additional District and Sessions Judge, Bangalore Rural District, Doddaballapura. d) Pass such other order/s under the circumstances of petition to meet the ends of justice.
2. The suit in OS No.466/2011 was filed by one Smt.Akkayamma against Respondent Nos.1 to 5 - 4 - NC:
2024. KHC:37470 CRP No.72 of 2024 herein for the relief of declaration of title and permanent injunction in respect of property bearing survey No.50 new No.50/1 measuring about 1 acre 33 guntas situated at Mandi Byadarahalli Village, Kasaba Hobli, Doddaballapura.
3. The said suit came to be dismissed on 09.09.2015, Smt. Akkayamma had filed RA No.10108/2016 (old RA No.11/2015) before the IVth Additional District and Sessions Judge, Bangalore Rural, Doddaballapura which came to be allowed with cost and the suit in OS No.466/2011 came to be decreed on 02.12.2016.
4. Respondent No.1 who had been placed ex-parte both before the Trial Court and the First Appellate Court filed Misc. Petition No.10007/2019 seeking for setting aside the judgment and decree passed in RA No.10108/2016 (old RA No.11/2015).
5. There being a delay of about 880 days in filing the said Misc. Petition, the application under Section 5 of - 5 - NC:
2024. KHC:37470 CRP No.72 of 2024 the Limitation Act for condonation of delay of the said 880 days came to be allowed vide order dated 21.02.2023. Subsequently, the Misc. Petition came to be allowed on 15.12.2023, the judgment passed in RA No.10108/2016 (old RA No.11/2015) came to be recalled and Regular Appeal came to be restored. It is challenging the said order dated 15.12.2023 that the Petitioners who claim to be purchasers of the property from one Sri. Mohammed Usman Ghani under a registered sale deed dated 17.06.2022, the said Sri. Mohammed Usman Ghani having inturn purchased the property from Smt. Akkayamma under the registered sale deed dated 13.9.2017 are before this Court challenging the order passed in the Misc. Petition No.10007/2019.
6. Sri. Ashok Haranahalli, learned Senior counsel appearing for the Petitioners would submit that; - 6 - NC:
2024. KHC:37470 CRP No.72 of 2024 6.1. Respondent No.1 the Petitioner in the Misc. Petition had been served with notice in OS No.466/2011 and chose not to appear and as such was placed ex-parte. The suit though ended in dismissal the vendors of the Petitioners have filed RA No.11/2015 on 31.03.2015. 6.2. Notice having been ordered on 01.04.2015 returnable by 02.06.2015, service of notice being effected on Respondent No.1 by Registered Post Acknowledgement Due (RPAD). On 10.07.2015 the First Appellate Court taking note of such service on Respondent Nos.1 to 5 personally, called them out, recorded their absences and placed them ex-parte. 6.3. Thereafter, the matter had been proceeded with, on 01.09.2016 the Appeal which had been filed and made over to Senior Civil Judge & JMFC, Bangalore Rural, Doddaballapura was - 7 - NC:
2024. KHC:37470 CRP No.72 of 2024 transferred by a suo-moto order bearing No.ADM/44/2016(81) dated 03.08.2016 to the IVth Additional District and Sessions Judge Court Doddaballapura for disposal. Thereafter, the matter was heard, and judgment was pronounced on 02.12.2016. 6.4. On the basis of the above facts, he submits that Respondent No.1 who was Defendant No.2 in the suit in OS No.466/2011 had been placed ex-parte in that suit. He being Respondent No.2 in RA No.11/2015 had been placed ex- parte on 10.07.2015, Defendant No.2/Respondent No.2 having chosen not to be represented and not having contested the First Appeal. The First Appellate Court having passed the judgment after hearing the parties concerned, the Misc. Petition in that regard could not have been entertained by the Misc. Court.-. 8 - NC:
2024. KHC:37470 CRP No.72 of 2024 6.5. His submission is that there is a presumption of service of notice by way of registered post on Respondent No.2 in RA No.11/2015. The notice having been sent by registered post to Respondent No.2 is deemed to have been served on Respondent No.2 in terms of Section 27 of the General Clauses Act, 1897. 6.6. Though the said presumption is rebuttable, Respondent/Defendant No.2 has not placed anything on record to rebut the presumption and as such the Misc. Court ought not to have allowed the Misc. Petition. 6.7. The Misc. Petition having been filed not by Defendant No.2 but by his power of attorney who has no personal knowledge of the matter more particularly as regards the service of notice or otherwise. Hence, the said power of attorney could neither file the petition nor have led evidence in relation thereto, let alone the - 9 - NC:
2024. KHC:37470 CRP No.72 of 2024 said evidence being accepted by the Misc. Court when the service was effected in the year 2015, the power of attorney being executed and registered on 12.07.2023. The power of attorney not having personal knowledge of the matter and issue, the Misc. Court ought not to have taken into consideration the evidence led by the power of attorney holder and ought to have dismissed the Misc. Petition. 6.8. In this regard, he relies upon the decision of the Hon’ble Apex Court in Basant Singh and Another vs. Roman Catholic Mission1 more particularly para 9 and 10 thereof, which are reproduced hereunder for easy reference:
9. Order 5, proviso to sub-rule (2) of Rule 19-A CPC provides that where the summons are properly addressed, prepaid and duly sent by registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the court within thirty days from the date of the issue of the summons, the court shall presume that notice is duly served. Further, Section 1 (2002) 7 SCC531| 2002 INSC424- 10 - NC:
2024. KHC:37470 CRP No.72 of 2024 27 of the General Clauses Act, 1897 (in short “the Act”) provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence.
10. It is nobody's case that the postal addresses of the defendants are not properly addressed and, therefore, the registered summons could not be served. It is also nobody's case that the registered summons are not prepaid and not duly sent. In fact the registered summons, bearing Receipts Nos. 875 and 876 dated 24-4-1986, were issued is borne out from the record. 6.9. By relying on Basant Singh’s case, he submits that where the summons have properly been addressed, prepaid and duly sent by RPAD, notwithstanding the fact that acknowledgment has been lost, the service of notice is required to be presumed in terms of Section 27 of the General Clauses Act. 6.10. He relies upon the decision of the Hon’ble Apex Court in Jayalakshmi L. v. N. Balaji2 more particularly para 6, 7 and 8 thereof, which are reproduced hereunder for easy reference:
2. 2015 SCC Online Kar.7529 | 2015 KHC38222- 11 - NC:
2024. KHC:37470 CRP No.72 of 2024 6. The postal acknowledgment would not be in the custody of the petitioner herein to produce and mark it in the miscellaneous proceedings. It would be part of the records maintained in the suit. Petitioner has done all that it could do by obtaining the certified copy of the extract of registers to show that notice had been duly dispatched and the same had been served and acknowledgment had been received by the court. The court below misdirected itself in recording a finding that petitioner herein ought to have produced the postal acknowledgment.
7. It is also necessary to notice here that court below erroneously held that even if the notice had been served, it was a case for giving one more opportunity to the petitioner to appear and contest the case. It has to be noticed that the suit seeking possession from the tenant was initially filed in the year 2007. It was transferred to Small Causes Court in the year 2011. Despite service of summons, the tenant-respondent herein does not bother to appear. After ten months from the date of passing of the ex- parte judgment and decree he files the miscellaneous petition seeking to set aside the ex- parte decree, only after the novice in the execution was served on him. It is thus clear that there was no justification for the respondent to stay away from the proceedings, despite service of notice. The order sheet maintained in the suit and the extract of the registers produced at Exs.R-2 & R-3 clearly demonstrate that notice had been served on the respondent herein.
8. The contention of the learned counsel for the respondent that unless it is established as to on whom the notice had been served, it cannot be held that notice was duly served, is not acceptable because the petitioner has demonstrated from the order sheet, the issue of summons to the address of the respondent. The registered post had been dispatched to the address of the respondent, - 12 - NC:
2024. KHC:37470 CRP No.72 of 2024 acknowledgment has been received by the office of the Small Causes Court which has been also entered in the register maintained in this regard. Therefore, such contention cannot be accepted. 6.11. By relying on Jayalakshmi’s case, he submits that the Petitioner herein is not in possession of records of service which are in the custody of a Court. The order sheet indicating that there is due service, would act as a presumption that service has been effected. The postal acknowledgment not being in possession of the Petitioners herein could not be produced before this Court nor could the Respondent in Misc. Petition produce it. The judgment in RA No.11/2015 having been passed on 02.12.2016, the Misc. Petition having been filed in the year 2019 is after a lapse of three years, there was no justification for the Misc. Petitioner to stay away from the proceedings once service has been effected. The RPAD, having been dispatched to the address of the - 13 - NC:
2024. KHC:37470 CRP No.72 of 2024 Respondent, is sufficient evidence of service of notice. 6.12. He relies upon the decision of the Hon’ble Calcutta High Court in Bindu Bashini Dasya v. Keshab Lal Bose3, more particularly para nos. 10 and 11 thereof, which are reproduced hereunder for easy reference:
10. There is no room for dispute that such ex parte entries did not constitute conclusive evidence; at the same time, as we have said, there is no presumption that the entries are false. The party who contends that the entries do not correctly state the events that have taken place must start his case. The position is different where, as in the case of Mir Tapurah v. Gopi Narain(8) where service of notice of deposit under sec. 61(2) of the Bengal Tenancy Act was raised, or in Radhey Koer v. Ajodhya Das(9) where service of notice of annulment of incumbrance under sec. 167 of the Bengal Tenancy Act was in controversy, the entry affects a person who is not a party to the proceedings. The case of Ananda Kishore v. Daiji(10) merely shows that an entry in an order-sheet of a Collector in a proceeding for partition of an estate, that possession has been delivered to one of the share-holders, is no evidence that he is in possession at a subsequent date so as to bar a suit for declaratory relief. There is also a fundamental difference between the case before us and the other class of cases represented by Mohiuddin v. Pirthi Chand(11) where no right accrues against a stranger 3 AIR1917Cal. 84 - 14 - NC:
2024. KHC:37470 CRP No.72 of 2024 till the statutory notice has been served on him. There the service of notice is the foundation of the jurisdiction of the Court, is essential for the creation of a right in the claimant; in such a case, the claimant must establish that all the statutory requirements have been strictly carried out. We feel no doubt whatever that in the case before us the burden lies upon the judgment-debtors to establish that the notices were not served upon them. If that allegation is not made out, the order of the Court, dated the 21st August, 1911, stands unimpeached and is an effective bar against an attack on the earlier proceedings in execution.
11. The result is that this appeal is allowed and the order of the Courts below discharged. The case will be remitted to the Court of first instance in order that it may, upon evidence to be adduced by both sides, determine whether the order of the 21st August, 1911 was or was not made with notice to the judgment- debtors. If it is established that it was made with notice to the judgment-debtors, the objection of limitation must be overruled. If, on the other hand, it is established that the order was made without service of notice upon the judgment-debtors, the question of validity of the earlier proceedings in execution, will be taken up for examination. The Appellant is entitled to her costs in this Court as also in the Courts below. We assess the hearing fee at two gold mohurs in this Court and at one gold mohur in each of the Courts below. The sum payable as costs, which will be specified in the decree, must be deposited in the Court of first instance within one month after the arrival of the record there. If the sum is not so deposited, the objection of the judgment- debtors will stand overruled and execution will proceed forth with at the instance of the decree- holders.-. 15 - NC:
2024. KHC:37470 CRP No.72 of 2024 6.13. By relying on the Bindu Bashini Dasya’s case he submits that the burden of proof is on the person who alleges that the notice has not been served, to establish that it is not so served. Moreover, when there is an endorsement on the order sheet, such notice has been duly served. 6.14. He relies upon the decision of the Hon’ble Apex Court in M.P. Matsya Mahasangh v. Sudheer Kumar4, more particularly para nos. 9, 10 and 16 thereof, which are reproduced hereunder for easy reference:
9. As noticed above, the only explanation given in the applications filed under Order 9 Rule 13 CPC for seeking condonation of delay was a vague statement that the officers at the lower level had failed to discharge their duties and had not taken timely action for defending the rights of the petitioner. However, in the memoranda of regular appeal filed before the High Court under Section 96 CPC and the applications for condonation of delay filed along with the appeals, the reason assigned by the petitioner to explain the delay of 948 days was that after the remand on 26- 12-2004, the cases were entrusted to its Assistant Engineer Chandrakant Nikam as the officer in charge 4 2010 15 SCC179- 16 - NC:
2024. KHC:37470 CRP No.72 of 2024 of the cases with instructions to keep the senior officers of the petitioner informed of the developments, but he failed to defend the cases and abandoned them without informing the senior officers; and that therefore the petitioner was unaware of the dates fixed for trial or about the ex parte decrees in the suits.
10. The explanation for the delay of one year and ten months in filing the applications under Order 9 Rule 13 CPC was found to be unsatisfactory resulting in the petitions under Order 9 Rule 13 being dismissed and the same being affirmed by the High Court. When the appeals under Section 96 were filed there was a delay of 948 days. The High Court examined the reason assigned for the delay and found that the delay was not satisfactorily explained. It also held that there was no explanation as to why and how the appellant stopped participating in the proceedings before the trial court from June 2005 and why the petitioner did not file the appeals even when the applications under Order 9 Rule 13 CPC were dismissed.
16. We find that the cause shown for the delay is wholly inadequate and unsatisfactory, bordering on suppression and misrepresentation of facts to the courts, in regard to knowledge of order placing it ex parte and the subsequent ex parte decrees. We find that the High Court was justified in refusing to condone the delay of 948 days. It is, therefore, unnecessary to examine the matter with reference to the merits. 6.15. Relying on M.P. Matsya Mahasangh’s case, he submits that the nearly three-year delay in filing the Misc. Petition has not been properly - 17 - NC:
2024. KHC:37470 CRP No.72 of 2024 explained. The Petitioner did not challenge the order passed on the condonation of delay application; however, the same can be challenged in the present petition, which is a comprehensive one. 6.16. His submission is that there is complete neglect on part of the Misc. Petitioner in as much as after service of notice he did not appear before the First Appellate Court. The matter proceeded for judgment and only three years thereafter the Misc. Petition was filed, which delay has not been properly explained. 6.17. He relies on the decision of the Hon’ble Apex Court in Balwant Singh (Dead) vs. Jagdish Singh and Others5, more particularly para 25 and 26 thereof, which are reproduced hereunder for easy reference:
5. (2010) 8 SCC685| 2010 INSC388- 18 - NC:
2024. KHC:37470 CRP No.72 of 2024 25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. 6.18. By relying on Balwant Singh’s case, he submits that limitation is also a valuable right due to the long passage of time between the date on which the judgment was passed by the First Appellate Court to the filing of the Misc.-. 19 - NC:
2024. KHC:37470 CRP No.72 of 2024 Petition, rights have been created in favour of the Petitioners. 6.19. Smt. Akkayamma sold the property in favour of Sri. Mohammed Ghani and Sri. Mohammed Ghani having sold the property in favour of the Petitioners, the Petitioners have purchased the property on the basis of the decree which had been passed, now if the decree is set aside the rights of the Petitioner would be adversely affected for no fault of the Petitioners. 6.20. He relies on the decision of the Hon’ble Apex Court in Man Kaur (Dead) By LR’s vs. Hartar Singh Sangha6, more particularly para 18 and 21 thereof, which are reproduced hereunder for easy reference:
18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about 6 (2010) 10 SCC512| 2010 INSC672- 20 - NC:
2024. KHC:37470 CRP No.72 of 2024 the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney- holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.-. 21 - NC:
2024. KHC:37470 CRP No.72 of 2024 (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
21. The plaintiff who ought to have given evidence never appeared and gave evidence. As his attorney- holder PW1had no knowledge of the transaction, the plaintiff solely relied on the evidence of the property dealer Balraj Singh (PW2 to prove the execution of the agreement, the terms of the agreement, his readiness and willingness to perform the agreement and the alleged breach by the defendant. But Balraj Singh cannot become a substitute for the plaintiff to give evidence about the finances or intentions or the readiness and willingness of the plaintiff which were within the personal knowledge of the plaintiff. Balraj Singh was a property dealer engaged by the plaintiff and supporting the plaintiff. He was not an attorney- holder acting on behalf of the plaintiff. Therefore, neither the evidence of Jagtar Singh (PW1 nor the evidence of Balraj Singh (PW2 can be relied upon to - 22 - NC:
2024. KHC:37470 CRP No.72 of 2024 prove that plaintiff was always ready and willing to perform his obligations under the contract, in terms of the contract. Therefore, it has to be held that though there were necessary averments in the plaint about the readiness and willingness of the plaintiff, and though PW1and PW2gave evidence about his readiness and willingness, the suit has to fail for failure to comply with Section 16(c) of the Specific Relief Act, as there was no acceptable or valid evidence of such readiness and willingness of the plaintiff to perform his part of the obligations in terms of the contract. 6.21. By relying on Man Kaur’s case his submission is that the power of attorney holder in the present case does not have any personal knowledge of the service of notice. The attorney has been appointed in the year 2023 and earlier by way of another power of attorney in the year 2019. The service having been effected on Respondent No.1 personally, the power of attorney holder cannot have any personal knowledge of the said service and as such the Misc. Petition filed by the power of attorney holder is not maintainable and no credence can be given to the statement made - 23 - NC:
2024. KHC:37470 CRP No.72 of 2024 by the power of attorney holder more particularly in the absence of any particular statement made by Respondent No.1. 6.22. He relies on the decision of the Hon’ble Apex Court in Janki Vashdeo Bhojwani and Another vs. Indusind Bank Ltd., And Others7, more particularly para 13 thereof, which is reproduced hereunder for easy reference:
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. 7 (2005) 2 SCC217| 2004 INSC695- 24 - NC:
2024. KHC:37470 CRP No.72 of 2024 6.23. By relying on Janki Vashdeo Bhojwani’s case, he submits that the power of attorney can only depose as regards the acts done by the power of attorney holder, and not as regards acts done by the principal without the power of attorney holder having personal knowledge of the same, such an attorney cannot depose on those acts done by the principal. 6.24. He relies on the decision of the Hon’ble Apex Court in My Palace Mutually Aided Co- operative Society vs. B. Mahesh and Others8, more particularly para 29 and 30 thereof, which are reproduced hereunder for easy reference:
29. The respondents in the present case had access to recourse under Section 96 of the CPC, which allows for appeals from an original decree. It must be remembered that the present matter was being heard by the High Court exercising its original jurisdiction. The High Court was in effect conducting a trial, and the final decree passed by the High Court 8 (2022) SCCOnline SC1063| 2022 INSC854- 25 - NC:
2024. KHC:37470 CRP No.72 of 2024 on 19.09.2013 was in effect a decree in an original suit. As such, there existed a right of appeal under Section 96 of the CPC, for the respondents. Though they were not parties to the suit, they could have filed an appeal with the leave of the Court as an affected party. Section 96 of the CPC reads as under:
96. Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.].
30. Sections 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A perusal of the above provision makes it clear that the provisions are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned.-. 26 - NC:
2024. KHC:37470 CRP No.72 of 2024 6.25. By relying on B. Mahesh’s case he submits that the Petitioners though were not parties to the Misc. petition or the First Appeal or the suit, the Petitioners having purchased the property from Sri. Mohammed Usman Ghani who had inturn purchased it from Smt. Akkayamma, the order passed in the Misc. Petition affects the Petitioners and as such the Petitioners being aggrieved persons affected by reason of the order passed in the Misc. Petition can agitate their grievances in the above Petition. 6.26. Though several other judgments have been placed on record at different points in time he does not wish to rely on those judgments, and relies on the latest compilation as indicated above. 6.27. Based on all of the above, his submission is that the powers under Rule 13 of Order 9 of the Code of Civil Procedure cannot be exercised by - 27 - NC:
2024. KHC:37470 CRP No.72 of 2024 the Misc. Court with an intention of giving one more opportunity to a party, after service of notice, who has chosen to be unrepresented and was placed ex-parte, the matter proceeded for judgment and three years thereafter a Misc. Petition was filed by which time 3rd party interest had been created. The clock cannot be put back in time to provide one more opportunity to a delinquent litigant. On these grounds he submits that the Misc. Court has misapplied itself and this Court ought to exercise its powers under Section 115 of the CPC to set right the injustice which has been caused to the Petitioners.
7. Sri. G. Krishnamurthy., learned senior counsel appearing for Respondent No.1 would submit that 7.1. There is no service of notice which has occurred in so far as Respondent No.1 is concerned. The - 28 - NC:
2024. KHC:37470 CRP No.72 of 2024 Regular Appeal was filed on 31.03.2015 and placed before the Civil Judge and JMFC, Doddaballpura, on 01.04.2015. 7.2. No judicial order was passed directing service of notice to the Respondents. He submits that the order issuing notice to Respondents through RPAD was passed by Chief Ministerial Officers (CMO) and not by a Judge and therefore there is no judicial order directing service of notice, without such an order being passed, the question of any service being effected and/or service being sufficient would not arise, let alone a presumption in regards thereto. 7.3. There is no document which is available on the file of the Court like the returned cover or the returned acknowledgement to verify as regards service of notice on the proper address. There is nothing on record to indicate as to what address the notice has been dispatched to for - 29 - NC:
2024. KHC:37470 CRP No.72 of 2024 the purpose of ascertaining if the notice had been so dispatched to the proper address of Respondent No.2 therein. Respondent No.2 has shifted from Bangalore to Kerala and is residing there as per the address given in the power of attorney, there is no possibility of any service being effected on Respondent No.2. His submission is that more than likely the notice ought to have been returned for the reason of the Respondent No.2 having shifted from the address and not being available. 7.4. On 10.07.2015, the Chief Ministerial Officer has put up a note saying, “notice to Respondents No.1 to 5-duly served” based on which there is a typed order indicating that the appeal notice is served on Respondents No.1 to 5 personally. They are called out-absent. They are placed ex- parte and LCR’s were called from the Trial Court returnable by 04.09.2015.-. 30 - NC:
2024. KHC:37470 CRP No.72 of 2024 7.5. Thus, he submits that without there being any document evidencing service on the basis of the note put up by the Registry, the Court had come to a conclusion that service has been effected and placed Respondent No.2 as ex- parte which is completely impermissible. 7.6. He refers to one other endorsement on the left side of the order sheet dated 10.07.2015- “issued”, on the basis of the above he submits that it is on 10.07.2015 that the notice was issued. Hence, the question of the Court recording on 10.07.2015 that the notice has been served does not at all arise. 7.7. This he submits could have only been verified from the records of service of notice; there are no documents available on record to indicate such service. The only document which has been placed on record is the register of the - 31 - NC:
2024. KHC:37470 CRP No.72 of 2024 registered post which has been maintained by the court. The copy of the said register was not produced before the Misc. Court, even if the same is considered by this Court, the said register does not indicate as to, to whom the notice has been issued, when and to which address it has been dispatched to and what is the endorsement on the returned acknowledgement card. 7.8. Thus, these are not sufficient for the purpose of coming to a conclusion that there is due dispatch of notice, let alone due service of notice. He submits that, along with the appeal in RA No.11/2015, an application in IA No.1/2015 was filed for condonation of delay of 100 days in preferring the appeal. A perusal of the entire order sheet does not indicate that the delay has been condoned. If the delay had been condoned, a fresh notice - 32 - NC:
2024. KHC:37470 CRP No.72 of 2024 ought to have been issued to the Respondents on the main matter. Without the delay being condoned, the question of the matter proceeding to judgment would not have arisen and as such, the judgment passed in RA No.11/2015 was renumbered as RA No.10108/2016 on 2.12.2016 is without condonation of delay and as such non-est. 7.9. He submits that the matter was suo-moto transferred vide an administrative order of the Principal District Judge dated 03.08.2016 to the IVth Additional District and Sessions Judge Court, Doddaballapura from the Court of Senior Civil Judge & JMFC, Doddaballapura, Bangalore Rural, was effected. 7.10. The aspect of RA No.11/2015 being transferred and a new number namely, RA No.10108/2016 having given to the said - 33 - NC:
2024. KHC:37470 CRP No.72 of 2024 proceedings would also indicate that the proceedings before the Transferee Court is virtually in a new proceeding in RA No.10108/2016 and as such a fresh notice was required to be issued in respect of this new proceedings. 7.11. Thus, after such administrative transfer fresh notice ought to have been issued to the Respondents. No notice having been issued, it could not be expected of the Respondents to appear before the new transferee Court. Firstly, the Respondent has not been served. Secondly, he was not aware of the transfer of the case, and without the knowledge of the Respondent, the matter proceeded for judgement which is causing irreparable harm and injury to the Respondent.-. 34 - NC:
2024. KHC:37470 CRP No.72 of 2024 7.12. He submits that when the Respondent no.6 in the Misc. Petition had visited the property and canvassed his rights over the property that the Misc. Petitioner was put to notice of their claim and after enquiry the Misc. Petitioner came to know of the order passed in the Regular Appeal and thereafter the Misc. Petition was filed. From the date of knowledge of the claim of the Respondent No.6 to the date on which the Misc. Petition was filed there is no delay which has occurred. The Misc. Petition has been filed within time, there is no particular delay of 880 days and it is for this reason that the said delay has been condoned which cannot be found fault in. 7.13. Insofar as the power of attorney is concerned his submission is that there being no service of notice, the question of the Misc. Petitioner being required to make his statements is an - 35 - NC:
2024. KHC:37470 CRP No.72 of 2024 exercise in futility. The power of attorney holder has made a categorical statement that the Misc. Petitioner has not been served with a notice, thereby rebutting the claim made by the Petitioners herein. It is therefore for the Petitioner to establish due and proper service of notice, the same not having been established, there being no service of notice, there is no requirement that the power of attorney holder to have any personal knowledge in the matter. 7.14. He submits that the Misc. Petitioner had filed IA No.3 to prosecute the Misc. Petitioner against Respondent No.6 - Sri. Mohammed Usman Ghani. Apart from that, an application in IA No.4 had also been filed seeking an injunction restraining Respondent No.6 from interfering with the Petitioner’s possession, which would only indicate the due diligence on the part of the Misc. Petitioner. It is only after Respondent - 36 - NC:
2024. KHC:37470 CRP No.72 of 2024 No.6 had filed his objections indicating that he had sold the property that the Misc. Petitioner sought for deletion of Respondent No.6 from the array of parties. Since there was no purpose served by continuing to prosecute Respondent No.6. 7.15. He relies upon the decision of this Hon’ble Court in B. Sundara Gowda v. Martin D'Souza9, more particularly para No.4 thereof, which is reproduced hereunder for easy reference:
4. In the instant case such a notice was not issued to either of the parties. If there was any order adverse to the interests of the plaintiffs then this Court would have interfered with the order on the ground that there was an error committed by the lower Appellate Court and that no opportunity was given to the plaintiffs-respondents to address arguments on the appeal filed by the defendant. Now, as the matter is remanded to the Munsiff directing to dispose of I.A. II, the plaintiffs have opportunity to address arguments on I.A. II. Therefore, no injustice is caused by the order. Therefore, this Court in its discretion declines to interfere with the order under revision. 9 1988 SCC OnLine Kar 308 - 37 - NC:
2024. KHC:37470 CRP No.72 of 2024 7.16. By relying on B. Sundara Gowda’s case he submits that whenever there is a transfer of a case under section 24 of the CPC, the transferee Court is duty bound to issue notice to the parties and without such notice being issued the proceeding cannot proceed further. 7.17. He relies upon the decision of the Hon’ble Apex Court in Pothina Narasamma v. Marupilla Ammaji10, more particularly para nos. 4, 5, 6 and 7 thereof, which are reproduced hereunder for easy reference:
4. A suit relating to declaration of title of the suit property was pending in the trial court. Though a copy of the plaint is not available on record, however, it is stated at the Bar that the suit seeks declaration of title with consequential relief of injunction. It appears that during the pendency of the suit the sole plaintiff died. The legal representative moved applications under Order 22 Rules 4 and 9 of the Code of Civil Procedure seeking impleadment, setting aside of abatement and condonation of delay in moving the applications. The trial court on inquiry held a sufficient cause within the meaning of Section 5 of the Limitation Act and Rule 9 of Order 22 CPC to be made out; directed the delay in moving the 10 (2006) 9 SCC749- 38 - NC:
2024. KHC:37470 CRP No.72 of 2024 applications to be condoned and abatement to be set aside; and allowed liberty to the proposed legal representative to be brought on record in place of the deceased plaintiff. Feeling aggrieved by the order of the trial court, the defendants preferred a revision in the High Court. The High Court has, in exercise of its revisional jurisdiction under Section 115 CPC, interfered with the order of the trial court forming an opinion that the delay in moving the applications was not satisfactorily explained, and, in view of that finding set aside the order of the trial court and directed the condonation application moved by the proposed legal representative of the plaintiff in the trial court to be rejected. The order of the High Court has resulted in the suit being dismissed as having abated.
5. Aggrieved by the order of the High Court, the proposed legal representative of the plaintiff has preferred this appeal by special leave.
6. Having heard the learned counsel for the parties we are satisfied that the impugned judgment of the High Court cannot be sustained. In Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [(1964) 3 SCR495: AIR1964SC1336 this Court has held: (AIR p. 1336) “It is not open to the High Court in the exercise of its revisional jurisdiction under Section 115, to question the findings of fact recorded by a subordinate court. Section 115 applies to cases involving questions of jurisdiction i.e. questions regarding the irregular exercise or non- exercise of jurisdiction or the illegal assumption of jurisdiction by a court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved.
7. The facts of this case squarely attract the applicability of the law laid down by this Court in Manindra Land and Building Corpn. Ltd. [(1964) 3 SCR495: AIR1964SC1336 A reading of the - 39 - NC:
2024. KHC:37470 CRP No.72 of 2024 judgment of the High Court shows that the High Court too has not arrived at a finding that there was any such jurisdictional error committed by the trial court as to call for interference by the High Court in exercise of its revisional jurisdiction. The impugned judgment of the High Court cannot, therefore, be sustained. 7.18. By relying on Pothina Narasamma’s case he submits that the Misc. Court has performed an act of justice by way of the impugned order. On the basis of factual findings as regards the service of notice or otherwise, the said factual findings cannot be subjected to judicial revision under Section 115 of CPC. 7.19. He relies upon the decision of the Hon’ble Apex Court in Kalpataru Vidya Samasthe v. S.B. Gupta11, more particularly para nos. 9, 10, and 11 thereof, which are reproduced hereunder for easy reference:
9. It is also a well-settled principle of law that the High Court in its revisional jurisdiction under Section 115 cannot interfere with the findings of fact recorded by the courts below and reappreciate the evidence 11 (2005) 7 SCC524| 2005 INSC414- 40 - NC:
2024. KHC:37470 CRP No.72 of 2024 and interfere with the findings unless it is found that the findings recorded by the lower court are perverse or there has been non-application of mind. In the case of Masjid Kacha Tank v. Tuffail Mohd. [1991 Supp (2) SCC270: AIR1991SC455 this Court held in para 3 of the judgment as under : (SCC p.
271) “3. It is well-settled position in law that under Section 115 of the Code of Civil Procedure the High Court cannot reappreciate the evidence and cannot set aside the concurrent findings of the courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the courts below. Simply because another view of the evidence may be taken, is no ground by the High Court to interfere in its revisional jurisdiction.
10. Going through the impugned order of the High Court, we do not find any findings of the High Court that the findings of fact recorded by the lower court are perverse and there has been non-application of mind.
11. The High Court has erred in law as well as in facts by setting aside the well-reasoned order of the Tribunal. The order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed with no order as to costs. 7.20. By relying on Kalpataru Vidya Samasthe’s case he again submits that the High Court, - 41 - NC:
2024. KHC:37470 CRP No.72 of 2024 exercising revisional powers under Section 115 cannot interfere with the factual findings by reappreciating the material facts. 7.21. He relies upon the decision of the Hon’ble Apex Court in M.P. Mari Gowda v. State of Karnataka12, more particularly para No.8 thereof, which is reproduced hereunder for easy reference:
8. That is not the only infirmity. The serving Officer has also not followed Order V Rule 18 of the Code of Civil Procedure, the provisions of which are mandatory. After serving the notice on ‘Jayamma’, assuming that she was the wife of the petitioner, he ought have submitted a return stating the time when, and the manner in which the notice was served, along with the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the notice. Admittedly, in this case, there was no such return from the serving Officer. In the absence of such record, the Assistant Commissioner ought not to have proceeded on the assumption that there was a due service of notice on the petitioner. I think that this is enough to dispose of the controversy in favour of the petitioner. 7.22. By relying on M.P. Mari Gowda’s case he submits that when there are disputes as 12 ILR1977Kar 204 - 42 - NC:
2024. KHC:37470 CRP No.72 of 2024 regards the service of notice, it is required for the serving officer to be examined and for the said serving officer to submit as to when the notice was served, the manner in which the notice was served, the persons to whom the notice was served and such other details as are required based on his service. In the present case the serving officer being the postman not having been examined, he submits that this requirement has not been established and therefore the Misc. Court has rightly allowed the Misc. Petition. 7.23. He relies upon the decision of the Hon’ble Apex Court in Smt. Munni @ Rajeshwari v. Kshetrapal Singh13, more particularly para 10 and 12 thereof, which are reproduced hereunder for easy reference:
13. 2004 SCC OnLine ALL857- 43 - NC:
2024. KHC:37470 CRP No.72 of 2024 10. Order V, Rules 16 and 18 make it clear that once Process Server goes to serve notice, he is required to endorse or annex the original summons on return stating time, manner in which summons were served, name and address of the persons identifying the person served and witnessing the delivery or tender of summons. The return of summons must be accompanying the affidavit as prescribed on Form No.11 of Appendix-B of C.P.C.
12. The legislature while prescribing procedure for service of summons under C.P.C. has taken all precautions so that summons may be served to the real person and in case of service of summons was not made to the defendant, it is open to him to contest service of summon. As in the present case the process server did not give details about persons who identified petitioner and witnesses of service of summons and affidavit of Process Server was also not filed, summons cannot be presumed to be served personally on petitioner. Courts below have not considered these aspects and have decided restoration application without considering relevant factors and evidence on record. Judgments of Courts below suffer from manifest illegality apparent on the face of record. The findings recorded by the Courts below are also perverse and are liable to be set aside. 7.24. By relying on Smt. Munni’s case he submits that if the persons served by the process server requisites details, in terms of Form No.11 of Appendix B of the CPC are to be enclosed. These details in terms of Form No.11 are not - 44 - NC:
2024. KHC:37470 CRP No.72 of 2024 found on record. Therefore, service cannot be held to have been effected. 7.25. He relies upon the decision of the Hon’ble Apex Court in Poonam Soin vs. Vinod K. Soin14, more particularly para No.4 thereof, which is reproduced hereunder for easy reference:
4. The petitioner has also filed an application under Order 41, Rule 27, CPC seeking leave to produce additional evidence before this Court. The additional evidence sought to be produced before this Court consists of photostat copies of some clipings of newspapers and brochures of the respondent's Companies. Learned Counsel for the petitioner has placed reliance on the decision in Bombay Corporation v. Panchaw, AIR1965SC1008 in support of his contention that the additional evidence under Order 41, Rule 27, CPC can be accepted by a Revisional Court. In my opinion, the said authority does not help the petitioner. That decision is an authority for the proposition that under Order 41, Rule 27, CPC, the Appellate Court has power to allow a document to be produced and a witness to be examined and this power is limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. It nowhere lays down that the provisions of Order 41, Rule 27, CPC are applicable to a revision under Section 115, CPC. In this view of the matter, the application filed by the petitioner u/Order 41, Rule 27, CPC is rejected. 14 (1996) SCC Online Del. 996 - 45 - NC:
2024. KHC:37470 CRP No.72 of 2024 7.26. By relying on Poonam Soin’s case he submits that the documents now furnished by the Petitioner cannot be looked into, since Rule 27 of Order 41 is not applicable to a proceeding under Section 115 of the CPC. 7.27. He relies upon the decision of the Hon’ble Apex Court in Chennichi Alias Parikkal, wife of Mariappa gounder, Vivekananda Town vs. D.A. Srinivasn Chettiar, son of Arunachala Chettair15, more particularly para No.5 thereof, which is reproduced hereunder for easy reference:
5. The exercise of the revisional powers of the High Court under S. 115 C.P. Code is purely discretionary. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if inch interference will produce hardship or injustice. The revisional jurisdiction of the court is intended to secure and subserve and ends of justice and not to deny or defeat it. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of 15 1969 SCCOnline Mad 130 - 46 - NC:
2024. KHC:37470 CRP No.72 of 2024 its revisioinal jurisdiction, even if the order is found to be one without jurisdiction. In this particular case, I have already referred to the fact that, when the respondent moved the civil court, the petitioner took up the stand that the civil court had no jurisdiction and, when, subsequently, the respondent moved the Rent Controller, the petitioner took up a reverse stand, though it may be justified on the position of law as it stood then, that the Rent Controller had no jurisdiction and only the civil court had jurisdiction. In view of this, interference with the order of the lower court in this case will reader the respondent without any remedy to obtain possession of the land in question, notwithstanding the fact that the petitioner has committed default in the payment of rent and the bona fide requirements of the respondent has been admitted. Even if the respondent filed another suit, the petitioner may contend that the same is barred by res judicata in view of the previous proceedings instituted in the civil court, and may prolong the proceedings. Hence, in my opinion, this is not a proper case in which the High Court should interfere with the order of the lower court. 7.28. By relying on Chennichi Alias Parikkal’s case he submits that when exercising powers under section 115 of CPC the Court can pass such orders as required to secure and achieve the interest of justice. There is no injustice caused in the present matter, an ex-parte judgment was causing injustice to the Misc. Petitioner, - 47 - NC:
2024. KHC:37470 CRP No.72 of 2024 this injustice has been rectified by the impugned order. The Petitioners, who are subsequent purchasers cannot have any grievance with the Petitioner being provided an opportunity to contest the matter on merits. 7.29. His submission is that the present Petitioners are seeking to rely on technicalities whereas the Misc. Court has performed substantial justice and as such, he submits that the judgment passed by the Misc. Court is proper and correct and does not require any interference.
8. Sri. Sunil S. Rao., learned counsel appearing for Respondent Nos. 3, 4 and 5 adopts the submission made by Sri. G. Krishna Murthy, learned Senior Counsel.
9. Heard Sri. Ashok Haranahalli., learned Senior Counsel appearing for the Petitioners and Sri. G.-. 48 - NC:
2024. KHC:37470 CRP No.72 of 2024 Krishnamurthy, learned Senior Counsel appearing for Respondent No.1 and Sri. Sunil S. Rao, learned counsel appearing for Respondent Nos. 3, 4 and 5. Perused papers.
10. The points that would arise for consideration are:
1. Whether the Chief Ministerial officer can issue notice to a Defendant?.
2. Whether it can be held that service has been effected by registered post on the basis of the presumption under Section 27 of the General Clauses Act 1897, without there being a record of the address to which the notice has been sent by registered post?.
3. Whether there is a requirement for issuance of notice post the condonation of delay application being allowed?.
4. Whether there is a requirement for another notice to be issued by the transferee Court on the suit of proceedings being transferred to it in terms of the administrative orders under Section 24 of the Code of Civil Procedure?.
5. Whether a Power of Attorney can lead evidence on an aspect not to the knowledge of the Power of Attorney?. - 49 - NC:
2024. KHC:37470 CRP No.72 of 2024 6. Whether revision petition under section 115 of the Code of Civil Procedure can be maintained as regards factual finding rendered by a Court?.
7. Whether in the present case it can be said that the service has been effected on the Misc. Petitioners?.
8. Whether the order passed by the Misc. Court suffers from any legal infirmity requiring interference at the hands of this Court?.
9. What order?.
10. I answer the above points as under; 11. Answer to point No.1: Whether the Chief Ministerial officer can issue notice to a Defendant?. 11.1. The answer to this question is obvious. The Chief Ministerial Officer is only a Ministerial Officer and not a Judicial Officer. Any order that is required to be passed can only be so done by a Judicial Officer. The Chief Ministerial Officer can only perform ministerial functions of putting - 50 - NC:
2024. KHC:37470 CRP No.72 of 2024 up a file, making file notings, indicating the status of the matter or informing the details of service of notice or the like for the judicial officer to pass necessary orders thereon. 11.2. The Chief Ministerial Officer obviously cannot discharge judicial functions and therefore cannot issue notice to a defendant. The judicial officers who come across any orders in the order sheet passed by such ministerial officer/s to immediately take necessary action so that these kind of acts on part of the Ministerial officers are not repeated. 11.3. In the present case, a perusal of the order sheet would indicate that the notice has been directed to be issued by the Chief Ministerial Officer and not the Judicial Officer. The Chief Ministerial Officer, as ex facie, acted in a manner that he was not authorized to do so. In that view of the matter, the appointing - 51 - NC:
2024. KHC:37470 CRP No.72 of 2024 authority would be required to take necessary action against the Chief Ministerial Officer for having chosen to discharge judicial functions. 11.4. The Registrar (General) is also directed to issue necessary circular to all Ministerial Officers including the Chief Ministerial Officer informing them that they are not to pass any orders which are judicial in nature including an order for issuance of summons. 11.5. Hence, I answer point No.1, by holding that the Chief Ministerial Officer cannot issue notice or summons to a defendant.
12. Answer to point No.2: Whether it can be held that service has been effected by registered post on the basis of the presumption under Section 27 of the General Clauses Act 1897, without there being a record of the address to which the notice has been sent by registered post?. 12.1. The submission of Sri.Ashok Haranahalli., learned senior counsel appearing for the - 52 - NC:
2024. KHC:37470 CRP No.72 of 2024 petitioner is that once an article is dispatched by register post properly addressed and stamped, service thereof is required to be presumed. In this regard he has relied upon Section 27 of the General Clauses Act, 1897. The said Section 27 is reproduced hereunder for easy reference.
27. Meaning of service by post Where any [Central Act]. or Regulation made after the commencement of this Act authorizes or requires any document to 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. 12.2. A perusal of Section 27 would indicate that the presumption would only arise when the article has been properly addressed, proper stamp duty has been paid and sent by registered post. There cannot be any dispute as regards the - 53 - NC:
2024. KHC:37470 CRP No.72 of 2024 proposition canvassed by Shri. Ashok Haranahalli learned senior counsel. 12.3. In order to ascertain whether the above have been fulfilled it would be but required that the necessary and concerned document with details is available for consideration, without which there cannot be a presumption that the notice has been properly addressed, properly stamped and dispatched. 12.4. The presumption under Section 27 would only arise after the above activities are performed and the article is properly stamped, properly addressed and properly dispatched. 12.5. In the present case, Sri.Ashok Haranahalli., learned senior counsel by relying on a register extract contends that in the proceedings before the Regular Appeal Court a notice had been issued to respondent No.1 and the same would suffice the requirement of Section 27 of the - 54 - NC:
2024. KHC:37470 CRP No.72 of 2024 General Clauses Act, 1897. I am unable to agree to the said submission in as much as in the extract which has been produced none of the details required are entered, namely the name of the person to whom the notice has been dispatched to, the address to which the notice has been dispatched to nor is the stamping indicated therein, nor is the date of dispatch indicated. Furthermore, the register post receipt for having dispatched is also not affixed and/or maintained in the said register. 12.6. The decision of the Hon’ble Apex Court in Basanth Singh's case was one where the all the above having been done and the necessary documents available to verify these aspects that service was held sufficient. 12.7. Similar is the case in Smt.Jayalakshmi’s case where the extract of registers showed that notice had been duly dispatched and the same - 55 - NC:
2024. KHC:37470 CRP No.72 of 2024 had been served and acknowledgment had been received by the court that this Court has held that the copy of the extract of the register is sufficient to hold that the notice has been duly dispatched and had been served though acknowledgement had not been received. In the present case all those details are not reflected in the extract of the Register produced. It is therefore required that the manner of maintenance of the register to include the above in future. 12.8. This becomes even more relevant for the reason that respondent No.1 in the said Regular Appeal claims to have relocated from the address that has been shown in the cause title i.e., an address in Bangalore to Kerala and in this regard, reliance has been placed on the address shown in the Power of Attorney.-. 56 - NC:
2024. KHC:37470 CRP No.72 of 2024 12.9. Thus, I am of the considered opinion that the presumption under Section 27 would only arise, if the article is dispatched to the proper address of the addressee, the article is properly and duly stamped and sent by RPAD. For the purpose of raising this presumption, if these aspects are not placed on record, then no such presumption could be raised or invoked. 12.10. In the present case there is nothing on record to indicate as to what address the article was sent to, whether it was prepaid. In fact, there is nothing on record to indicate that the same has been dispatched except a noting in the register, there being no register post receipt placed on record which would indicate the dispatch of the notice. 12.11. Thus, even though there would be no requirement for an acknowledgment card evidencing service, it would however be - 57 - NC:
2024. KHC:37470 CRP No.72 of 2024 required that there should be proof of dispatch of the notice as indicated above. 12.12. I answer point No.2 by holding that without there being a document to evidence dispatch of an article properly stamped and addressed to the proper address of the addressee, the presumption under Section 27 of the General Clause Act, 1897 cannot be invoked. In this case, the above not being satisfied, there cannot be a presumption that respondent No.1 in R.A. No.11/2015 who is respondent No.1 herein has been duly served.
13. Answer to point No.3; Whether there is a requirement for issuance of notice post the condonation of delay application being allowed?. 13.1. Whenever any proceedings, more particularly in the nature of an appeal are filed, it would be available for the respondent in the appeal to - 58 - NC:
2024. KHC:37470 CRP No.72 of 2024 either appear or not to appear, being under the presumption that the delay in filing the appeal may not be condoned and the appeal may be dismissed. Notice once issued on an application for condonation of delay, if the respondent were not to appear and contest the same the Court may either condone the delay by allowing the application or dismiss the application thereby dismissing the appeal itself. 13.2. Once such a delay is condoned, it would but be required that a fresh notice be issued to the respondent on the main appeal unless the respondent has already entered appearance. 13.3. That is to say, when a notice as regards a condonation of delay application has been issued and the respondent has entered appearance and either opposes or does not oppose such an application, if the delay is condoned, the respondent already being put to - 59 - NC:
2024. KHC:37470 CRP No.72 of 2024 notice of the delay having been condoned, there would be no requirement for issuance of fresh notice to the respondent on the main appeal. 13.4. However, if a notice has been issued on an application for condonation of delay, the respondent chooses not to appear and the Court allows an application for condonation of delay, it would but be required for a fresh notice to be issued to the respondent on the main appeal. 13.5. This may be a tactic utilized by the respondent to delay the proceedings. But, however, the fact remains that the earlier notice was only as regards the condonation of delay. Since without the delay being condoned, the appeal is not taken on file, it is only on the delay being condoned that the appeal is taken on file and a notice on the appeal could be issued.-. 60 - NC:
2024. KHC:37470 CRP No.72 of 2024 13.6. This can obviously be handled by a Court by issuing a notice both on the application for condonation of delay and the appeal. 13.7. The notice/summons would have to clearly indicate as such, putting to notice the respondent on aforesaid notice on both the aspects. On service of such notice, if the respondent were not to appear, then even in the event of the delay being condoned, there would be no requirement for issuance of fresh notice and the appeal could be proceeded with. 13.8. In the present matter, the notice issued does not indicate whether it is on the condonation of delay application or on the appeal, since the order itself has been passed by the Chief Ministerial Officer who was not authorised to do so even this order is passed in a lackadaisical manner without application of mind and the - 61 - NC:
2024. KHC:37470 CRP No.72 of 2024 said order does not indicate with certainty as to for what purpose a notice has been issued. 13.9. This assumes importance for the reason that neither the details of the Registered Post placed on record nor is any acknowledgement placed on record, nor has the cover returned to verify as to what kind of summons have been issued. 13.10. I answer point No.3 by holding that; 13.10.1. If only a notice for condonation of delay application is issued, in the event of the respondent not appearing and the condonation of delay application dismissed, there is no need of any fresh notice since the appeal itself would stand dismissed. In the event of condonation of delay application being allowed, a fresh notice on the main appeal is required to be issued to the respondent.-. 62 - NC:
2024. KHC:37470 CRP No.72 of 2024 13.10.2. In the event of a notice being issued on the condonation of delay application and the respondent entering appearance and either opposing or consenting to the said application. If the condonation of delay application were to be dismissed, the appeal would also automatically stand dismissed. If the condonation of delay application is allowed, then the appeal being taken on file, there would be no further requirement of issuance of a fresh notice since the respondent is already on record. 13.10.3. In the event of a notice both on the condonation of delay application and the main appeal being issued, if the respondent does not choose to appear, the condonation of delay application is allowed, then there would be no - 63 - NC:
2024. KHC:37470 CRP No.72 of 2024 requirement for issuance of fresh notice on the main appeal.
14. Answer to point No.4. Whether there is a requirement for another notice to be issued by the transferee Court on the suit of proceedings being transferred to it in terms of the administrative orders under Section 24 of the Code of Civil Procedure?. 14.1. Transfer of a proceeding from one Court to the other would arise in two circumstances. Firstly, when an application is filed under Section 24 of the Code of Civil Procedure by one of the parties seeking for such transfer and secondly, when a transfer of a case is made from one Court to the other due to administrative exigencies, which could be on account of establishment of a new Court, on account of change in territorial or pecuniary jurisdiction of the Court or the like. 14.2. In the first case, when an application under Section 24 of the Code of Civil Procedure is - 64 - NC:
2024. KHC:37470 CRP No.72 of 2024 filed, obviously a notice would be issued to the respondents in the said application and it is only after hearing them that an order would be passed. Depending on the nature of the order passed and the direction issued in such proceedings, the respondents could be directed to appear before the Transferee Court without requirement of notice or the Court could have directed the Transferee Court to issue fresh notice to all the parties and proceed therefrom, which would have to be adhered to and followed. 14.3. Insofar as the second situation is concerned, where a transfer has been made on the basis of administrative exigencies, none of the parties having made an application for transfer, the parties would not be aware of such transfer unless they are informed. Mere listing of the administrative order on the notice board and/or - 65 - NC:
2024. KHC:37470 CRP No.72 of 2024 the website would not afford adequate notice to the concerned parties as regards the transfer of the proceedings. Thus, whenever a case is transferred by an administrative order, unless the Transferee Court has specifically directed the parties to appear before the Transferee Court on a particular date by informing the parties about the Court to which the case has been transferred to, there would be a requirement for the Transferee Court on receipt of the case papers to issue notice to all parties. 14.4. In the present case, as could be seen, even the appellant did not appear before the Transferee Court on several occasions and it is only after several adjournments that the appellant entered appearance, addressed the argument and the matter was posted for judgment after renumbering the appeal as RA No.10108/2016 the original number being RA No.11/2015.-. 66 - NC:
2024. KHC:37470 CRP No.72 of 2024 14.5. There being no notice issued to the respondents by the Transferee Court, the respondents were not aware of the transfer requiring them to appear before the Transferee Court. Hence, I answer point No.4 by holding that; 14.5.1. Where a case is transferred from one Court to the other on an application being made by one of the parties, by a judicial order after service of notice on the opposing parties, the requirement of issuance of fresh notice by the Transferee Court would depend on the nature of the order passed by the Court seized of the proceedings under Section 24. 14.5.2. In the event of a case being transferred by an administrative order without the parties having been informed of the said transfer, the - 67 - NC:
2024. KHC:37470 CRP No.72 of 2024 Transferee Court would have to issue fresh notice to all the parties informing the parties about the transfer and directing them to appear on a particular date and time as fixed by Transferee Court. 14.5.3. In the event of transfer by an administrative order and the parties being informed about the said administrative order and directing the parties to appear before the Transferee Court at a particular date and time, there would be no requirement of a fresh notice to be issued by the Transferee Court to any of the parties.
15. Answer to point No.5: Whether a Power of Attorney can lead evidence on an aspect not to the knowledge of the Power of Attorney?. - 68 - NC:
2024. KHC:37470 CRP No.72 of 2024 15.1. Sri.Ashok Haranahalli., learned Senior counsel for the petitioner submits that in the Misc. Petition, evidence has been led by a Power of Attorney who had no knowledge of the service of summons. As such, the said evidence could not be relied upon by the Miscellaneous Court. In this regard, it is relied upon the decision of the Hon’ble Apex Court in Janki Vasudwev Bohweani’s case and Man Kaur’s case. There can be no dispute as regards the principles laid down in both the cases. 15.2. A Power of Attorney holder cannot be denied the right to lead evidence on behalf of his principal. But, however, the evidence led by such a Power of Attorney holder should be only as regards the aspects to the personal knowledge of the Power of Attorney holder. 15.3. Whether the Power of Attorney holder has personal knowledge or not can only be - 69 - NC:
2024. KHC:37470 CRP No.72 of 2024 determined after the cross-examination while appreciating the evidence. The same cannot be decided prior to the Power of Attorney leading evidence. If a party were to lead the evidence of a Power of Attorney holder who has no personal knowledge, such party takes the risk of the evidence being accepted or rejected while appreciating the evidence. 15.4. Thus, if evidence is led by a Power of Attorney holder as regards aspects not to the personal knowledge of the Power of Attorney holder, such evidence would have to be rejected unless the evidence is as regards documents available on record and the documents can be independently looked into without the oral evidence of the Power of Attorney being required to be considered on the basis of the personal knowledge of the Power of Attorney Holder.-. 70 - NC:
2024. KHC:37470 CRP No.72 of 2024 15.5. In the present case, the Power of Attorney holder has only stated that service has not been affected on the principal. That is to say that the Power of Attorney holder has rebutted the presumption of service of notice on the principal. Once such rebuttal evidence has been led, it would be for the person asserting service of notice to comply with the requirements of invoking the presumption and/or categorically establishing service of notice. Neither the Power of Attorney holder nor the principal could have led evidence to establish a negative fact of non-service of notice. Thus, the question of either the principal or the Power of Attorney holder having knowledge in that regard would not arise. The knowledge on part of the Power of Attorney holder in the present case is limited to the assertion that the service has not been affected. Hence, I am of the considered opinion - 71 - NC:
2024. KHC:37470 CRP No.72 of 2024 that there was no requirement of the Power of Attorney holder having any personal knowledge of the service of notice which is claimed not to have been served at all. A statement to that effect would suffice and the burden would again shift back to the person asserting that the service has been affected to prove such service. 15.6. Hence, I answer point No.5 by holding that a Power of Attorney holder can lead evidence on all aspects but the evidence can only be considered, if the Power of Attorney holder has personal knowledge. In so far as a negative fact is concerned, the Power of Attorney holder asserting that something has not been done, like in the present case, service has not been affected, requires no particular personal knowledge of the said fact. Thus, both the decisions in Janki Vasudwev Bohweani’s - 72 - NC:
2024. KHC:37470 CRP No.72 of 2024 case and Man Kaur’s case would not be applicable to the present factual matrix.
16. Answer to point No.6: Whether Revision Petition under Section 115 of the Code of Civil Procedure can be maintained as regards factual finding rendered by a Court?. 16.1. The submission of Sri.G. Krishnamurthy, learned Senior counsel appearing for the respondent is that the finding in the miscellaneous proceedings is one which is based entirely on facts i.e., as to whether service has been affected or not. The Miscellaneous Court having come to a conclusion that no such service has been affected, such a factual finding cannot be subjected to revision proceedings under Section 115 of the Code of Civil Procedure. 16.2. I find some substance in the said submission of Sri.G. Krishnamurthy., learned Senior counsel inasmuch as revision powers would have to be - 73 - NC:
2024. KHC:37470 CRP No.72 of 2024 exercised to interfere with such finding if there is non-appreciation or non-consideration of material evidence on record by the Court and merely because the facts could be appreciated in a different manner would not be a ground to seek for revision under Section 115 as held by the Hon’ble Apex Court in Kalpataru Vidya Samasthe's case and Pothina Narsamma's case. There is no legal issue which arises for consideration as regards the factual aspect of service of notice or otherwise. 16.3. Hence, I answer point No.6 by holding that a Revision Petition under Section 115 of the Code of Civil Procedure cannot be maintained in order to re-appreciate and factual finding even by a Court.
17. Answer to point No.7: Whether in the present case it can be said that the service has been effected on the Misc. Petitioners?. - 74 - NC:
2024. KHC:37470 CRP No.72 of 2024 17.1. In view of my answer to point No.1 to 6 above having come to a conclusion that firstly notice has been ordered by the Chief Ministerial Officer not by the judicial officer, secondly there being no document on record to indicate that notice had been issued to the current and proper address of respondent No.1, i.e., there being no document indicating that a notice has been dispatched to the current and proper address, thirdly that after the condonation of delay there is no fresh notice which has been issued to respondent No.1, fourthly no notice has been issued to respondent No.1 after administrative transfer of the case. It can be therefore conclusively be answered that service of notice has not been affected on respondent No.1 in RA No.11/2015. 17.2. Hence, I answer point No.7 by holding that in the present case service has not been affected - 75 - NC:
2024. KHC:37470 CRP No.72 of 2024 on the Misc. Petitioner who is respondent No.1- herein.
18. Answer to point No.8: Whether the order passed by the Misc. Court suffers from any legal infirmity requiring interference at the hands of this Court?. 18.1. In view of the findings rendered by me in respect of point No.1 to 7, the Miscellaneous Court having considered the aspect in the right prospective and having come to a conclusion that service has not been affected on the petitioner who was Respondent No.1 in RA No.11/2015 which came to be subsequently numbered as RA No.10108/2016. The order passed by the Misc. Court does not suffer from any legal infirmity, requiring interference at the hands of this Court.
19. Answer to point No.9: What order?. - 76 - NC:
2024. KHC:37470 CRP No.72 of 2024 19.1. In view of my answer to point No.1 to 8 above no grounds having been made out in present revision petition and having come to a conclusion that the revision petition is not maintainable the revision petition is required to be dismissed and is as such dismissed. Sd/- (SURAJ GOVINDARAJ) JUDGE SR, List No.:
19. Sl No.: 1