S IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 02 ND DAY OF JUNE, 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM CRP No. 430 OF 2007 BETWEEN: MIS MANOHAR TEXTILES, PARTNERSHIP FIRM, HAVING ITS OFFICE AT 419 SRIRAM MARKET, D.K.LANE, CHICKPET, BANGALORE - 560 053 REP. BY ITS PROP. LAUTH DOSHI PttiiiONER (BY SRI PARAS JAIN AND JAGADEESH G.P. ADVS.,) AND MR.D.P.NARESH, S/0 .P.PRAKASH, AGED ABOUT 33 YEARS 2. MR.D.P.PAVAN, S/O D.P.PRAKASH, AGED ABOUT 28 YEARS BOTH ARE RESIDING AT # 15/3, SRI KRISHNA RAO ROAD, BASAVANAGUDI,BANGALORE - 560 004 RESPONDENTS (BY SRI S.SHAKER SHETTY AND SRI ANIL KUMAR SHtTTY, ADVs.,) 2 CRP No.430/2007 FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 20.7.2007 PASSED IN MIS NO.129/2007 ON THE FILE OF THE 1ST ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE PtiiiiON FILED U/O 9 R 13 CPC AS BARRED BY LIMITATION. ThIS PtIITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER Tenant is in revision under Section 115 of CPC assailing the order dated 10-07-2007 dIsmissing the petition flied under Order IX Rule 9 of CPC. 2. Heard the learned counsel for petitioner and respondent. Perused the records. 3. The contextual fads are: The respondent Initiated eviction proceedings against the petitioner in S.C. No. 1837/2002 before the Court of Small Causes, Bangalore, on the premise that he was a Tenant under him and he had terminated his tenancy by issuance of statutory notice under the provisions of Section 106 of the Transfer of Property Act and thus the tenancy was terminated and extinguished. !‘ 1-’ it” 3 4. To support such contention he further averred petitioner was a Tenant under him on monthly rent of Rs.150/- and he was a defaulter. The premises in question is required by him for own use and occupation. Despite termination of tenancy through notice dated 22.04.2002 the Tenant has failed to comply with the demands. 5. Summons were ordered in the suit which were returned unserved with shara ‘absent’. The trial Court accepted the endorsement as amounting to suffident service applying Section 27 of the General Clauses Act and placed the petitioner exparte. 6. During exparte proceedings the respondent tendered evidence as PW1 and relied on six documents. The evidence remained unchallenged as petitioner was exparte and it resulted in passing of eviction decree dated 14.02.2007. 7. Petitioner filed petition under the provisions of Order IX Rule 9 of CPC in Misc. No.129/2007 on 23-06-2008 seeking to set aside the exparte decree in SC No.1837/2002 dated 14.02.2007 on the assertive contention that he had 4 no notice of the proceedings and thus the exparte decree was liable to be set aside. 8. As the decree for eviction was passed on 14.02.2007 and Misc. petition to set aside the decree was filed on 23.06.2007, there was delay In filing the petition. Along with Misc. petition the petitioner has also filed IA-Il under Section 151 of CPC to stay the execution of the exparte decree. 9. On service of notice of the Misc. Petition respondent — Landlord entered contest. Petitioner’s counsel submits that petitioner had filed two applications, one for seeking condonation delay in filing the Misc. Petition and another for stay of the exparte decree. The respondent’s counsel disputed this submission. 10. Perusal of the impugned order shows that learned trial Judge dismissed the IA-Il filed under Section 151 of CPC to stay execution of the exparte decree on the ground that the respondent — Landlord has justifiably pointed out that the main petition filed under Order IX Rule 5 13 of CPc was not maintainable as having been filed beyond 30 days from the date of passing of the exparte decree. 11. The learned trial Judge further observed that as the decree In Sc No.1837/2002 Is passed placing the petitioner exparte It was Incumbent upon him to file petition to set aside the exparte decree within the period of limitation prescribed, calculating the period of limitation from 14.02.2007, the date of decree and the date on which Misc. petition was filed on 23.06.2007, the learned trial Judge observed that main petition is not maintainable and therefore, dismissed the application — IA-Il seeking stay. 12. It is further noticed after dismissal of IA-Il learned trial Judge has taken up the main petition filed under Order IX Rule 9 of cc and has dismissed the same on the same ground that it Is filed beyond the period of 30 days and thus was not maintainable. There Is also an observation during the course of the impugned order that petitioner has not filed application under Section 5 of the Umitation Act seeking condonation of delay. In the resultant position the main petition was also dismissed. 6 13. The learned counsel Mr. Paras Jam for petitioner would submit that petitioner averred in the petition itself that the date of his knowledge of the exparte decree passed on 14.02.2007, is the date when execution petition was filed. He submits within 30 days from the date of knowledge the petitioner filed petition under Order IX Rule 13 of CPC on 26.06.2007. Therefore, the petition was in time. He submits that petitioner has also averred In the petition that he came to know of the exparte decree only when the respondent filed execution petition in E.P. No.1221/2007 and when delivery warrant was issued in the execution petition. The petitioner came to know of the exparte decree and Immediately flied Misc. Petition, which is within 30 days of the date of knowledge. 14. In negation of these grounds the learned Senior counsel Mr. Shekar Shetty, for respondent submits that without seeking condonation of delay the petition was not maintainable. It is incumbent upon the petitioner to show sufficient cause for delay. In the absence of which the petition was not maintainable. t\•:ç, ii 7 15. Keeping In mind what Is urged I have examined the impugned order. 16. Firstly, it is to be noticed, in original proceedings in Sc No.1837/2002 the petitioner was placed exparte by the trial Court accepting the shara on the summons that petitioner was absent when summons were taken out for service. This very fact shows that no due service was effected in SC No.1837/2002. It is not clear what reasons are assigned by the learned trial Judge to accept the shara ‘absent’ as sufficient servIce. 17. Be that as It may, there is no dispute that there was no personal service of the summons on the petitioner in the original proceedings. Exparte decree was passed on 14.02.2007. MIsc. PetItion Is filed on 23.06.2007 on the basis of the information received by the petitioner after respondent filed execution petition. Undoubtedly the burden was on the petitioner to establish the date of the knowledge of the exparte decree. He had to dIscharge the burden during the enquiry. 8 18. The proceedings in Misc. No.129/2007 shows the learned trial Judge has taken up the application IA-Il for stay and has dismissed the same on the basis that main petition was filed under Order IX Rule 9 of CPC was not maintainable. Immediately, there after the learned trial Judge has dismissed the main petition Itself on the ground the petitioner has failed to explain the delay. The order passed is only on the basis of the pleadings of the parties without giving opportunity to the petitioner to substantiate his case that he filed Misc. Petition within 30 days from the date of knowledge. 19. It is further to be observed that the petitioner has contended that he had no notice of filing SC No.1837/2002 as no notice was served on him. This is a case where exparte decree was sustainable on proof of service of notice. If that is established then only petitioner will be required to explain the delay In not coming to the court within limitation. The petitioner has to be given opportunity to substantiate the grounds urged in the petition flied under Order IX Rule 9 of CPC with acceptable evidence. ç 1 fl - 9 The trial Court is therefore, required to conduct an inquiry and then dispose of the petition on merit. 20. In the result the petition succeeds. The order impugned dated 20.07.2007 In Misc. Pet. No.129/2007 dismissing it is set aside. Misc. Pet. No.129/2009 Is restored to file of I AddI. Judge, Court of Small Causes, Bangalore. The learned trial Judge is directed to give opportunity to the petitioner to prove his case and dispose of the same In accordance with law considering the objections raised and to be raised by the respondent — Landlord. No costs. Sd,’ JUDGE VK j