G.N.R. BABU @ S.N. BABU versus DR. B.C. MUTHAPPA & ORS.

G.N.R. BABU @ S.N. BABU versus DR. B.C. MUTHAPPA & ORS.

Where a defendant has not filed an application under Order IX Rule 13 CPC, he may in an appeal under Section 96 CPC, relying on Section 105 CPC, challenge the legality of an interlocutory order directing ex parte proceedings on the basis of the trial court record (though he cannot lead evidence in the appeal to make out sufficient cause for absence). On the facts, the trial court erred in proceeding ex parte because service attempts showed premises were locked and the court did not direct affixation of summons under Order V Rule 17 CPC; accordingly the High Court and trial court judgments and decree were set aside and the suit remanded with directions and costs.

Parties
Appellant (original First Defendant): G.N.R. BABU @ S.N. BABU; Respondent (original Plaintiff): Dr. B.C. Muthappa; Respondent (third Respondent): Bangalore Development Authority
Jurisdiction
India
Judgment Date
06 September 2022
Procedural Posture
Civil Appeal / Judgment on Appeal (partly Allowed)
Outcome
Appeal partly allowed; impugned judgments and decree set aside; suit restored to trial court and remanded for fresh adjudication with directions.
Legal Topics
Ex Parte Decree, Service of Summons, Order IX Rule 13 CPC, Order V Rule 17 CPC, Section 96 CPC, Section 105 CPC, Remand, Costs
Civil Procedure Property Law Ex Parte Decree Service of Summons Order IX Rule 13 CPC Order V Rule 17 CPC Section 96 CPC Section 105 CPC +2 more

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Parties

G.N.R. BABU @ S.N. BABU

Appellant (original First Defendant)

Dr. B.C. Muthappa

Respondent (original Plaintiff)

Bangalore Development Authority

Respondent (third Respondent)

Procedural Posture

Civil Appeal / Judgment on Appeal (partly Allowed)

Legal Issues

  1. 1 Whether a defendant who has not filed an application under Order IX Rule 13 CPC can, in an appeal under Section 96 CPC against an ex parte decree, challenge the legality of the order directing ex parte proceedings on the ground of non-service of summons
  2. 2 Whether the trial court erred in proceeding ex parte without complying with Order V Rule 17 CPC when premises were found locked and summons were sent by Registered Post AD
  3. 3 Whether the suit should be remanded for fresh adjudication and whether occupants of the building should be impleaded

Ratio Decidendi

Where a defendant has not filed an application under Order IX Rule 13 CPC, he may in an appeal under Section 96 CPC, relying on Section 105 CPC, challenge the legality of an interlocutory order directing ex parte proceedings on the basis of the trial court record (though he cannot lead evidence in the appeal to make out sufficient cause for absence). On the facts, the trial court erred in proceeding ex parte because service attempts showed premises were locked and the court did not direct affixation of summons under Order V Rule 17 CPC; accordingly the High Court and trial court judgments and decree were set aside and the suit remanded with directions and costs.

Court Disposition

Appeal partly allowed; impugned judgments and decree set aside; suit restored to trial court and remanded for fresh adjudication with directions.

Orders

  • Impugned judgment and order dated 22 March 2016 of the High Court set aside
  • Impugned judgment and decree dated 19 September 2015 of the City Civil Court set aside