The Supreme Court ruled that without verifying the address, summons served through Registered Post AD is no warrant for proceeding Ex Parte.
The respondent who is the original plaintiff, filed a suit in the City Civil Court at Bangalore for a declaration that he was the absolute owner of the property subject matter of the suit.
Site No.28, according to the respondent, consisted of lands. Apart from claiming a declaration of ownership, the first respondent contended that a structure erected by the appellant on the suit property was illegal and therefore, a decree was sought for removal of the structure.
The Judge of the City Civil Court at Bangalore, by his judgment and order passed a declaratory decree by declaring the first respondent as the owner of the suit property. A decree was also passed directing the appellant and the second respondent to remove the structure on the suit property.
The counsel appearing for the appellant submitted that the High Court proceeded on erroneous basis that the issue regarding the failure to serve the suit summons can be agitated only in an application filed for setting aside ex parte decree by invoking Rule 13 of Order IX of CPC.
He contended that on the basis of the record of the suit, the appellant could always point out that the service of summons was not effected or that it was otherwise illegal to proceed ex parte against him.
Senior Advocate Arvind Kamath, appearing for the respondent plaintiff, submitted that the respondent Bangalore Development Authority was the owner of the suit property and that the respondent is the allottee of the suit property from the respondent Bangalore Development Authority.
He contended that the sale deed on the basis of which the appellant is claiming ownership is in respect of some other property, as can be seen from the description of the property in the sale deed.
The division bench of Justice Ajay Rastogi and Justice Abhay S. Oka stated that the explanation to Rule 13 of Order IX of CPC lays down that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than withdrawal, application for setting aside ex parte decree will not lie.
“However, in the event an application under Rule 13 of Order IX of CPC is dismissed, the defendant can prosecute the appeal against the decree as a right to prefer appeal under Section 96 cannot be taken away in absence of any express provision to the contrary in CPC” , the court added.
The bench observed that though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him.
The court said that under Section 105 of CPC, when a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the Memorandum of Appeal.
“Thus, in such a case, the appellant can always urge in an appeal against the decree that an interim or interlocutory order passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal” the court stated.
The court found that there is a noting in the order sheet of the trial court that the summons issued to the appellant and respondent was returned unserved with the remark that their respective premises were locked.
The court noted that further the trial court ordered the issue of summons by Registered Post Acknowledgement Due at the same address.
The bench observed that without verifying whether the address of the appellant, as shown in the cause title of the suit was correct, summons was ordered to be served through Registered Post AD.
The court held that there was no warrant for proceeding ex parte against the appellant.
The court set aside the impugned judgment and order passed by the High Court as well as the impugned judgment and decree passed by the Judge of the City Civil Court at Bangalore and restored the Original Suit to the file of the City Civil Court, Bangalore.
Case title: G.N.R. Babu @ S.N. Babu v/s Dr. B.C. Muthappa & Ors.
Citation: CIVIL APPEAL NO. 6228 of 2022