JUDGMENT

This regular second appeal is filed by the defendant in O.S. No. 76/2015 challenging the judgment and decree dated 02.09.2015 passed therein as well as the order dated 11.10.2019 passed by the learned Sr. Civil Judge & JMFC, Kudligi in R.A. No. 7/2017 by which an application filed by him under Section 5 of the Limitation Act, 1963, was rejected and the appeal stood dismissed.

2. The parties shall henceforth be referred to as they were arrayed before the trial court.

3. The suit in O.S. No. 76/2015 was filed for specific performance of an agreement of sale dated 21.06.2014 for a total sale consideration of Rs.2,00,000/- out of which a sum of Rs.1,00,000/- was allegedly paid by the plaintiff to the defendant. The plaintiff claimed that the defendant was his younger brother who even after receipt of a sum of Rs.1,00,000/- did not comply his part of the contract and did not conclude the transaction. As a result the plaintiff caused a notice on 07.01.2015 which was acknowledged on 12.01.2015. However, the defendant did not comply with the demand made in the notice. On the contrary, he tried to alienate the suit property in favour of third parties which compelled the plaintiff to seek for specific performance of the agreement.

4. The suit summons was allegedly refused by the defendant and therefore he was placed exparte. The trial court recorded the evidence of the plaintiff who marked Exs.P.1 to P.7. It also recorded the evidence of two other witnesses in proof of the execution of the agreement and as there was no challenge to the evidence, decreed the suit in terms of the judgment and decree dated 02.09.2015.

5. Being aggrieved by the said judgment and decree, the defendant filed a belated appeal in R.A. No. 7/2017 and also filed an application under Section 5 of the Limitation Act for condonation of delay of 510 days in filing the appeal.

6. The first appellate court recorded the evidence of the defendant and in terms of its order dated 11.10.2019 held that the cause shown for the delay was not satisfactory and therefore rejected the application and consequently, dismissed the appeal in terms of the order dated 11.10.2019. Being aggrieved by the said judgment and decree of both the Courts, the defendant has filed this appeal.

7. The learned counsel for the defendant submitted that the defendant did not refuse to accept the notice as alleged and therefore the trial court committed an error in placing the defendant exparte. She contended that the defendant was completely unaware of the judgment and decree passed by the trial court and that he came to know of the said judgment only on 03.02.2017. She therefore contended that since the parties are closely related, an opportunity be granted to the defendant to contest the suit on merits.

8. Per contra, learned counsel for the plaintiff contended that the defendant had refused to accept the suit summons and he did not contest the suit and therefore there was no other alternative for the trial court than to decree the suit. He contends that both the plaintiff and the defendant are residing in the same village and therefore the defendant cannot claim that he was not aware of the proceedings. He further submits that the defendant did not even take steps to cross examine the plaintiff and also to lead evidence and therefore there is no error in decreeing the suit. He further contends that since the defendant knew about the decree granted by the trial court, the cause shown for seeking condonation of delay was false and therefore the first appellate court was justified in rejecting the application and consequently dismissing the appeal.

9. This appeal was admitted to consider the following substantial question of law.

Whether the trial court had violated the procedure prescribed under Order V Rule 17 and 19 CPC before accepting that the defendant had refused to accept the summons?

10. The copy of the order sheet furnished by the learned counsel for the defendant shows that on 30.06.2015, th