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

                        [2022] 11 S.C.R. 203                              203


                   G.N.R. BABU @ S.N. BABU                                A
                                  v.
                  DR. B.C. MUTHAPPA & ORS.
                   (Civil Appeal No. 6228 of 2022)
                       SEPTEMBER 06, 2022                                 B
          [AJAY RASTOGI AND ABHAY S. OKA, JJ.]
       Code of Civil Procedure, 1908 – ss.96, 105 & Or.IX, r.13 –
Ex-parte decree against defendant – Appeal u/s.96 – Scope of
adjudication – Ex-parte decree was passed against the appellant-
defendant in the suit filed by first respondent – Plea of the appellant   C
that the High Court in appeal u/s.96 while confirming the decree
on merits proceeded on the 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 r.13 of Or.IX –
Correctness of – Held: The appellant while challenging ex- parte
                                                                          D
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 – Though he 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       E
that even otherwise also, the trial court was not justified in
proceeding ex-parte against him – Only when the application made
by a defendant u/r.13 of Or. IX is dismissed that such a defendant
cannot agitate in the appeal against ex-parte decree that the order
directing that the suit shall proceed ex-parte was illegal or incorrect
                                                                          F
– However, in the present case, the appellant had not filed
application u/r.13 of Or.IX, therefore, such a contention can be raised
by him – Also, on facts proceeding ex-parte against the appellant
was not warranted – Impugned order passed by the High Court as
well as the decree of the Trial Court set aside – Further, on facts the
prayer for remand of the suit is accepted – Appellant to pay costs        G
of Rs.2,00,000/- to the first respondent – Original suit restored.
     Code of Civil Procedure, 1908 – s.105 – Held: Under s.105
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.                          H
                               203
204            SUPREME COURT REPORTS                      [2022] 11 S.C.R.


A            Code of Civil Procedure, 1908 – Or.V, r.17 – Requirement
      under – Non-fulfillment of – Ex-parte decree passed against the
      appellant and second respondent observing that they did not appear
      despite the service of summons – Held: Record shows that an attempt
      to serve summons by the regular mode failed as the premises of the
      appellant were found to be locked – Trial Court did not direct
B
      affixing of a copy of the summons on the outer door of the premises
      in which the appellant was residing, as required by r.17 of Or.V –
      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 – Decree set aside.
C           Partly allowing the appeal, the Court
             HELD: 1.1 In this case, the question is when the defendant
      did not avail the remedy under Rule 13 of Order IX of CPC,
      whether it is open for him to agitate in the regular appeal against
      the decree that the trial court had no justification for proceeding
D     ex parte against the appellant. In such a case, 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,
E     the trial court was not justified in proceeding ex parte against
      him. The reason is 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
F     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
G     illegal. As held in the case of Bhanu Kumar Jain, only when the
      application made by a defendant under Rule 13 of Order IX of
      CPC is dismissed that such a defendant cannot agitate in the
      appeal against ex-parte decree that the order directing that the
      suit shall proceed ex- parte was illegal or incorrect. However, in
      this case, the appellant has not filed application under Rule 13 of
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 G.N.R. BABU @ S.N. BABU v. DR. B.C. MUTHAPPA & ORS.                   205


Order IX of CPC. Therefore, such a contention can be raised by         A
him. [Para 8][210-F-H; 211-A-C]
      Bhanu Kumar Jain v. Archana Kumar & Anr. (2005) 1
      SCC 787 : [2004] 6 Suppl. SCR 1104 – relied on.
      1.2 On facts of the case in hand, it is found that there is a
noting in the order sheet of the trial court dated 27th October        B
2014 that the summons issued to the appellant and second
respondent was returned unserved with the remark that their
respective premises were locked. However, on 05th January
2015, the trial court ordered issue of summons by Registered
Post Acknowledgement Due at the same address. The order                C
sheet of 05th March 2015 records that the summons sent to the
appellant and the second respondent by post was returned with
the remarks “Intimation Delivered”. Thus, the record shows that
an attempt to serve summons by the regular mode failed as the
premises of the appellant were found to be locked. The trial court
did not direct affixing of a copy of the summons on the outer door     D
of the premises in which the appellant was residing, as required
by Rule 17 of Order V of CPC. 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. Therefore, there was no warrant for                E
proceeding ex parte against the appellant. Moreover, it is found
from the rejoinder that a multi-storeyed building consisting of
ground plus four floors has been constructed on the suit property
and the residential premises in the building on the suit property
have been occupied by different persons. As noted earlier, there
is a decree passed for the demolition of the building constructed      F
on the suit property. This is one more reason to accept the prayer
for remand of the suit. The suit was instituted in the year 2014.
As a result of passing an order of remand, the disposal of the suit
filed by the first respondent will be delayed. Therefore, the
appellant will have to be saddled with costs quantified at             G
Rs.2,00,000/- (Rupees two lacs only). Though no adjudication is
being made on the issue whether the occupants of the building
are necessary parties to the suit, a liberty will have to be granted
to the first respondent, if he so desires, to implead the persons
in possession of the premises in the building constructed on the
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206             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A     suit property. The impugned judgment and order passed by the
      High Court as well as the impugned judgment and decree dated
      passed by the learned Judge of the City Civil Court at Bangalore
      are set aside. Original Suit No.6610 of 2014 is restored to the
      file of the City Civil Court, Bangalore. The first respondent shall
      be entitled to costs quantified at Rs.2,00,000/- (Rupees two lacs
B
      only) from the appellant. The payment of costs shall be the
      condition precedent. [Paras 9-11, 13][211-D-H; 212-A-C, F]
            Bhivchandra Shankar More v. Balu Gangaram More
            & Ors. (2019) 6 SCC 387 : [2019] 7 SCR 298 –
            referred to.
C
                               Case Law Reference
      [2004] 6 Suppl. SCR 1104                 relied on           Para 6
      [2019] 7 SCR 298                         referred to         Para 6

D           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6228
      of 2022.
            From the Judgment and Order dated 22.03.2016 of the High Court
      of Karnataka at Bengaluru in R.F.A. No. 494 of 2016.
          Anand Sanjay M. Nuli, Dharm Singh, Suraj Kaushik, Nanda
E     Kumar K.B., M/s Nuli & Nuli, Advs. for the Appellant.
           Arvind Kamath, Sr. Adv., Shivram Jasra, Bhargava V. Desai,
      Ms. Charu Modi, S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni,
      Ms. Uditha Chakravarthy, Advs. for the Respondents.
            The Judgment of the Court was delivered by
F
            ABHAY S. OKA, J.
            1. Leave granted.
            2. The appellant, who is the original first defendant, has taken an
      exception to the judgment and order dated 22 nd March 2016 passed by
G     the High Court of Karnataka in an appeal being R.F.A.No.494 of 2016
      preferred under Section 96 of the Code of Civil Procedure, 1908 (for
      short ‘CPC’).
            3. The first respondent who is the original plaintiff, filed a suit in
      the City Civil Court at Bangalore (now Bengaluru) for a declaration
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 G.N.R. BABU @ S.N. BABU v. DR. B.C. MUTHAPPA & ORS.                             207
                  [ABHAY S. OKA, J.]

that he was the absolute owner of the property subject matter of the suit        A
comprising of Site No.28 at BTM Layout, Bangalore. Site No.28,
according to the first respondent, consisted of lands bearing survey nos.56,
57 and 60 of Bilkenahalli Village and survey nos.61, 71 and 72 of N.S.
Palya Village, Bangalore South Taluk, Bangalore. Site No.28 is hereinafter
referred as “the suit property”. Apart from claiming a declaration of
                                                                                 B
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 other two respondents in
this appeal were the second and third defendants respectively. The learned
Judge of the City Civil Court at Bangalore, by his judgment and order
dated 19th September 2015, passed a declaratory decree by declaring              C
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 appellant and the second respondent
were also restrained by a decree of perpetual injunction from entering in
the suit property and from interfering with the peaceful possession and
                                                                                 D
enjoyment thereof by first respondent. In paragraph 20 of the said
judgment, the learned trial Judge observed that the appellant and second
respondent did not appear despite the service of summons and did not
contest the suit. By the impugned judgment and order, the High Court
confirmed the decree on merits.
        4. In support of the appeal, apart from raising various contentions      E
on merits of the decree, the learned counsel for the appellant Shri Anand
Sanjay M. Nuli urged that appellant’s address mentioned in the cause
title of the suit was incorrect and on the date of institution of the suit, he
was residing at another address set out in the grounds of appeal.
Therefore, the suit summons was not duly served upon the appellant.              F
        5. The learned 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. The submission of the learned counsel appearing for the                  G
appellant is 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. He would further
submit that as can be seen from the rejoinder filed by the appellant, a
multi- storeyed building consisting of ground and four upper floors has
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208               SUPREME COURT REPORTS                           [2022] 11 S.C.R.


A     been constructed by the appellant on the suit property long back and the
      building is occupied by the purchasers of the premises therein. He
      submitted that there is a very drastic decree passed for demolition of the
      said building constructed on the suit property without impleading the
      purchasers of the premises therein as parties. He would, therefore, urge
      that by setting aside the decree of the trial court, the suit be remanded
B
      for fresh adjudication.
              6. Shri Arvind Kamath, the learned senior counsel appearing for
      the first respondent-plaintiff submitted that the third respondent-Bangalore
      Development Authority was the owner of the suit property and that the
      first respondent is the allottee of the suit property from the third respondent.
C     He submitted 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 learned senior
      counsel relied upon a decision of this Court in the case of Bhanu Kumar
      Jain v. Archana Kumar & Anr.1 in support of his contention that in an
D     appeal against an ex parte decree, the appellant-defendant can challenge
      the decree only on merits. If he wants to challenge the decree either on
      the ground that summons was not duly served to him or that he was
      prevented by sufficient cause from appearing in the suit, his remedy is to
      apply under Rule 13 of Order IX of CPC. He also relied upon another
      decision of this Court in the case of Bhivchandra Shankar More v.
E     Balu Gangaram More & Ors.2 in which the decision of this Court in
      the case of Bhanu Kumar Jain1 was followed. He submitted that it is
      not open for the appellant to challenge the decree of the trial court on
      the ground that summons was not duly served as he has not filed an
      application for setting aside the decree. He submitted that there is a
F     concurrent finding of the trial court and High Court that the first respondent
      has established his title and ownership over the suit property and that the
      building constructed thereon is completely illegal. The learned senior
      counsel, therefore, urged that the present appeal be dismissed.
            7. We have given careful consideration to the submissions. Firstly,
G     we will deal with the scope of adjudication in an appeal preferred under
      Section 96 of CPC by a defendant against whom the trial court has
      proceeded ex parte and a decree has been passed. In the case of Bhanu
      Kumar Jain1 a Bench of three Hon’ble Judges of this Court dealt with
      1
          (2005) 1 SCC 787
      2
H         (2019) 6 SCC 387
 G.N.R. BABU @ S.N. BABU v. DR. B.C. MUTHAPPA & ORS.                           209
                  [ABHAY S. OKA, J.]

a case where an application for setting aside ex parte decree was filed        A
by a defendant under Rule 13 of Order IX of CPC. The said application
was dismissed. Even an appeal preferred against the order of dismissal
of the said application was dismissed. An appeal under Section 96 of
CPC was also preferred by the said defendant. The submission before
this Court was that the subject matter of the application under Rule 13
                                                                               B
of Order IX of CPC and the subject matter of the appeal against decree
being the same, it is against the public policy to allow two parallel
proceedings to continue simultaneously. In paragraph 23 of the decision,
this Court noted that the question before it was whether an appeal against
ex parte decree was maintainable despite the fact that an application
under Rule 13 of Order IX of CPC was dismissed. Paragraphs 24 to 27            C
of the said decision read thus :
      “24. An appeal against an ex parte decree in terms of Section
      96(2) of the Code could be filed on the following grounds
          (i) the materials on record brought on record in the ex parte
          proceedings in the suit by the plaintiff would not entail a decree   D
          in his favour, and
          (ii) the suit could not have been posted for ex parte hearing.
      25. In an application under Order 9 Rule 13 of the Code, however,
      apart from questioning the correctness or otherwise of an order          E
      posting the case for ex parte hearing, it is open to the defendant to
      contend that he had sufficient and cogent reasons for not being
      able to attend the hearing of the suit on the relevant date.
      26. When an ex parte decree is passed, the defendant (apart
      from filing a review petition and a suit for setting aside the           F
      ex parte decree on the ground of fraud) has two clear options,
      one, to file an appeal and another to file an application for
      setting aside the order in terms of Order 9 Rule 13 of the
      Code. He can take recourse to both the proceedings
      simultaneously but in the event the appeal is dismissed as a
      result whereof the ex parte decree passed by the trial court             G
      merges with the order passed by the appellate court, having
      regard to Explanation appended to Order 9 Rule 13 of the
      Code a petition under Order 9 Rule 13 would not be
      maintainable. However, Explanation I appended to the said
      provision does not suggest that the converse is also true.               H
210             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A           27. In an appeal filed in terms of Section 96 of the Code having
            regard to Section 105 thereof, it is also permissible for an appellant
            to raise a contention as regards correctness or otherwise of an
            interlocutory order passed in the suit, subject to the conditions laid
            down therein.”
B                                                              [Emphasis added]
             This Court held that though after dismissal of an appeal under
      Section 96 of CPC against ex parte decree, application under Rule 13
      of Order IX of CPC will not be maintainable, there is no bar on
      unsuccessful defendant adopting both the remedies simultaneously. In
C     such a case, if the regular appeal against the decree is dismissed, obviously
      the application under Rule 13 of Order IX of CPC cannot proceed.
             The reason is that 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
D     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. In
      paragraph 38 of the aforesaid decision, this Court held that when
E     application under Rule 13 of Order IX of CPC filed by a defendant is
      dismissed, the defendant cannot be permitted to raise a contention as
      regards the correctness or otherwise of the order posting the suit for ex
      parte hearing and/or existence of a sufficient cause for non-appearance
      of the defendant.
F             8. In this case, the question is when the defendant did not avail
      the remedy under Rule 13 of Order IX of CPC, whether it is open for
      him to agitate in the regular appeal against the decree that the trial court
      had no justification for proceeding ex parte against the appellant. In
      such a case, though the appellant would not be entitled to lead evidence
G     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 reason is that under Section 105 of CPC, when a decree is appealed
      from, any error, defect or irregularity in any order affecting the decision
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 G.N.R. BABU @ S.N. BABU v. DR. B.C. MUTHAPPA & ORS.                           211
                  [ABHAY S. OKA, J.]

of the case can be set forth as a ground of objection in the Memorandum        A
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
                                                                               B
that the order passed to proceed with the suit ex parte against him was
illegal. As held in the case of Bhanu Kumar Jain1, only when the
application made by a defendant under Rule 13 of Order IX of CPC is
dismissed that such a defendant cannot agitate in the appeal against ex
parte decree that the order directing that the suit shall proceed ex parte
was illegal or incorrect. However, in this case, the appellant has not filed   C
application under Rule 13 of Order IX of CPC. Therefore, such a
contention can be raised by him.
       9. Now coming to the facts of the case in hand, we find that there
is a noting in the order sheet of the trial court dated 27 th October 2014
that the summons issued to the appellant and second respondent was             D
returned unserved with the remark that their respective premises were
locked. However, on 05th January 2015, the trial court ordered issue of
summons by Registered Post Acknowledgement Due at the same
address. The order sheet of 05th March 2015 records that the summons
sent to the appellant and the second respondent by post was returned
with the remarks “Intimation Delivered”. Thus, the record shows that           E
an attempt to serve summons by the regular mode failed as the premises
of the appellant were found to be locked. The trial court did not direct
affixing of a copy of the summons on the outer door of the premises in
which the appellant was residing, as required by Rule 17 of Order V of
CPC. Without verifying whether the address of the appellant, as shown          F
in the cause title of the suit was correct, summons was ordered to be
served through Registered Post AD. Therefore, in our view, there was
no warrant for proceeding ex parte against the appellant.
       10. Moreover, we find from the rejoinder that a multi- storeyed
building consisting of ground plus four floors has been constructed on         G
the suit property and the residential premises in the building on the suit
property have been occupied by different persons. As noted earlier, there
is a decree passed for the demolition of the building constructed on the
suit property. This is one more reason why we are inclined to accept the
prayer for remand of the suit. The suit was instituted in the year 2014.
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212             SUPREME COURT REPORTS                           [2022] 11 S.C.R.


A     As a result of passing an order of remand, the disposal of the suit filed
      by the first respondent will be delayed. Therefore, the appellant will
      have to be saddled with costs quantified at Rs.2,00,000/- (Rupees two
      lacs only). Though we are not making any adjudication on the issue
      whether the occupants of the building are necessary parties to the suit, a
      liberty will have to be granted to the first respondent, if he so desires, to
B
      implead the persons in possession of the premises in the building
      constructed on the suit property.
             11. Accordingly, the present appeal is partly allowed. The impugned
      judgment and order dated 22nd March 2016 passed by the High Court as
      well as the impugned judgment and decree dated 19 th September 2015
C     passed by the learned Judge of the City Civil Court at Bangalore are
      hereby set aside. Original Suit No.6610 of 2014 is restored to the file of
      the City Civil Court, Bangalore.
              12. The parties to the appeal shall mark their presence before the
      learned Principal Judge, City Civil Court at Bangalore on Monday, the
D     26th September 2022 at 10:30 a.m. It will be open to the Principal Judge
      of the City Civil Court to transfer the suit for disposal to any of the
      Judges of the City Civil Court. The appellant shall file his written statement
      within maximum period of one month from 26th September 2022. Under
      no circumstances, the appellant shall be granted extension of time to file
E     written statement. Considering the fact that the suit is of the year 2014,
      the trial court shall endeavour to give necessary priority to the disposal of
      the suit.
             13. The first respondent shall be entitled to costs quantified at
      Rs.2,00,000/- (Rupees two lacs only) from the appellant. The payment
F     of costs shall be the condition precedent. The appellant shall either directly
      pay the costs amount to the first respondent and produce the receipt
      thereof within four weeks from today or shall deposit the costs amount
      with the City Civil Court within four weeks from today.


G     Divya Pandey                                              Appeal partly allowed.




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