An ex-parte decree can be set aside if a defendant proves that proper service of summons was not conducted, emphasizing adherence to procedural due process over substantive merit during initial hearings.

JUDGMENT :

(RAMACHANDRA D. HUDDAR, J.)

The appellant/defendant No.20 in Misc.No.25001/2018 has filed this appeal under Order XLIII Rule 1(d) of CPC read with Section 104 of CPC with a prayer to call for the records in Misc.No.25001/18 relating to OS.No.25124/2013 on the file of IV Additional City Civil and Sessions Judge at Mayohall Unit, Bengaluru (CCH-21) and set aside the impugned order dated 18.11.2023 passed in Misc.No.25001/18, by the said Court dismissing the petition of the appellant, filed under Order IX Rule 13 of CPC and set aside the ex-parte judgment and decree passed in OS.No.25124/2013 dated 10.11.2017 by allowing this appeal.

2. Parties to this appeal are referred to as per the ranking before the trial Court.

3. That the present appellant/defendant No.2 filed a miscellaneous petition in Misc.No.25001/2018 under Order IX Rule 13 of CPC to set aside ex-parte judgment and decree passed by the City Civil Court in OS No.25124/2013 dated 10.11.2017 stating that, the respondent Nos.1 to 10 filed OS.No.25124/2013 seeking the relief of partition, declaration and permanent injunction against the petitioner and other respondents Nos.11 to 31. The present appellant was arrayed as defendant No.20 in the said suit. In the said suit, defendant No.20 was placed ex-parte. So also defendant Nos.1 to 13, 5 and 11 were also absent before the Court and they were also treated as ex-parte. The other defendants though appeared but did not contest the said suit. The said suit came to be decreed on 10.11.2017. It is further stated that, the appellant/petitioner came to know about the decree of the suit on 13.11.2017. Thereafter, he requested his counsel to enquire about the same as he has got interest in the schedule property as a GPA holder of respondent Nos.11 to 15 and 18 to 28 and executed the registered sale deed dated 13.04.2005 in favour of respondent No.29. It is stated that, the appellant has got responsibility to protect the interest of the said respondents who are the vendors and purchasers of the suit property.

4. It is a specific case of the petitioner before the trial Court that, he is a resident of Kengeri, Bengaluru and had informed to one Shivakumar over a phone regarding disposal of the suit. In fact, the said Mr.Shanthakumar, commonly known to the petitioner as well as respondent Nos.1 to 10. It is further stated that no suit summons were served upon the appellant/petitioner. Even it is stated that, there was a paper publication, but he was placed ex-parte as he did not appear before the Court as he was not knowing about the said suit.

5. It is further stated that, the said paper publication was taken by the plaintiff therein behind the back of the petitioner. Petitioner is a permanent resident of Mysore. But the wrong address was given. Thus, it is stated that, as the plaintiff in the said suit has obtained the ex-parte decree, now the petitioner/appellant is constrained to file the petition for setting aside the same.

6. Before the trial Court respondent Nos. 1 to 10, 16 and 17 have appeared through their counsel. Respondent Nos.1 to 10 have filed the objections and respondent Nos. 16 and 17 have adopted the same.

7. Inter alia, the aforesaid respondents have denied the entire contents of the petition. It is contented that, the present defendant No.20 has no locus standi to file the petition. It is stated that, the petitioner and respondent No.29, the purchaser and her husband are closely associated with each other and they have full knowledge about the civil proceedings aga