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Judgment
Mohan Shantanagoudar
This appeal is filed by Defendants 6 and 7 against the judgment and decree passed in O.S. No. 2052/1993 passed by the City Civil Court, Bangalore City. Respondent No. 1 is the Plaintiff. Initially Plaintiff filed a suit for injunction restraining the Appellants herein from Interfering with the peaceful possession and enjoyment of 3 acres 3 guntas of land in Sy. No. 46/3B of Hongasandra Village of Beguru Hobli, Bangalore South Taluk. Notices were served on Defendants 6 and 7. Notices were also served on the other Defendants and all of them have remained exparte. Ultimately, Defendants 1 to 5 and 8 filed applications for setting aside the order placing them exparte. The said applications were allowed. However, Defendants 1 to 5 and 8 compromised the matter with the Plaintiff. Defendants 6 and 7 i.e., the Appellants herein also filed an application for setting aside the exparte order, But, no order was passed on the said application till the disposal of the suit.
However, the Plaintiff filed an application for amendment of plaint for converting the suit for injunction into the suit for possession. Notice of that application was served on Defendants 6 and 7. On the very day itself, Defendants 6 and 7 filed application for setting aside the exparte order. The matter was adjourned to 20.7.2004. On that day, Defendants 6 and 7 filed their statement of objections to the amendment application filed by the Plaintiff. However, the Plaintiff remained absent on that day. Thus, the application filed by the Plaintiff under Order VI Rule 17came to be dismissed for non-prosecution. Subsequently, after several adjournments, on 23.11.2004, Plaintiff filed application u/s 151 of CPC to restore the amendment application. According to the Appellants herein the said application was not served on the Defendants and therefore they did not have any opportunity to oppose the said application. Ultimately, the application for amendment was allowed on 28.7.2005. The matter was adjourned from time to time. On 8.12.2005 the Plaintiff filed I.A. No. 12 for amending the plaint once again. Copy of the said application was also not served on Defendants 6 and 7, Appellants herein. However, the said application was allowed on 21.1.2006. The order sheet dated 21.1.2006 maintained by the Court below reveals that the matter was adjourned to 3.2.2006 for filing additional written statement, if any. However, the additional written statement was not filed. Subsequently, the Plaintiff examined its witness and the suit is decreed based on the material on record.
Learned Counsel appearing on behalf of the Appellants submits that the application filed by the Appellants for setting aside the order placing them exparte was not at all considered by the Court below till the disposal of the suit; Appellants were not served with the application filed by the Plaintiff for recalling the order dismissing, the application for amendment for non-prosecution; that the second application for amendment filed by the Plaintiff on 8.12.2005 was also not served on the Appellants and therefore according to him, the Court below is not justified in granting decree in favour of the Plaintiff without hearing the Appellants. According to him, the Court below has violated the principles of natural justice.
Sri. Shekhar Shetty, Learned Counsel appearing for Respondent No. 1 argued in support of the impugned judgment by contending that the notices were served on the Appellants herein from time to time and that their advocate appeared before the Court below.
Looking to the order sheet maintained by the Court below, it is clear that the Appellants were placed exparte. They filed application for setting aside the order placing them exparte. But strangely, the Court below did not pass any order on the said application till the disposal of the suit. The Court below ought to have passed the order on the application filed by Defendants 6 and 7 under Order IX Rule 7of CPC within a reasonable period. However, the Court below has erred in not passing any order on the application filed by the Appellants praying for setting aside the exparte order. This has created the confusion. More over, the records of the Court below do not reveal that Defendants 6 and 7 were served with the application filed by the Plaintiff for recalling the order of dismissal of application for amendment for non-prosecution. No notice was served on Defendants 6 to 7 with regard to I.A. No. 12 filed by the Plaintiff under Order VI Rule 7of CPC on 8.12.2005 (second application for amendment of the plaint). These facts clearly go to show that Defendants 6 and 7 were not heard in the mater as required in law. Therefore, Sri. K.K. Vasanth, Learned Counsel appearing for the Appellants is justified in making the submission that the judgment and decree passed by the Court below is liable to be set aside.
But we feel that we should not enter into the merits in view of the fact that the Appellants herein will have to approach the Court below by filing an application under Order IX Rule 13of CPC praying for setting aside the exparte decree. Since the Appellants are placed exparte, it is open for the Appellants to file such an application under Order 9 Rule 13of CPC before the very Court, wherein they were placed exparte. In the light of the remedy available to the Appellants as against the exparte decree passed, the Appellants herein may file an application before the Court below under Order IX Rule 13of Code of Civil Procedure. Accordingly, the following order is made:
The appeal is dismissed, with liberty to the Appellants to file an application under Order IX Rule 13of CPC praying for setting aside the exparte decree. The Court below shall decide the said application keeping in mind the observations made above. If such an application is made by the Appellants within six weeks from today, the Court below shall not raise the question of delay.
The Court fee paid in this appeal shall be refunded to the Appellants.
Original documents, if any filed along with the appeal shall be returned to the Appellants, after retaining the true copies of the same.