A.No.4596 of 2022 in C.S.No.132 of 2010

A.No.4596 of 2022

in C.S.No.132 of 2010

Reserved on : 23.02.2023

Pronounced on : 03.03.2023

N.SESHASAYEE.J.,

1.1 This application is taken out by the sixth defendant in C.S.No.132 of 2010

under Order VII Rule 11 CPC, seeking rejection of the plaint. The facts leading

to this case may be briefly stated :

● A certain piece of immovable property belonged to M/s.Hymavathi

Constructions. It was an unregistered partnership firm. On

01.02.1996, it entered into a sale agreement with Mukanchand Bothra,

the first defendant in the suit (today on his demise, his heirs have

replaced him).

● To enforce the said agreement, the first defendant had laid

C.S.No.205 of 1999 against M/s.Hymavathi Constructions, and had

obtained an exparte decree on 02.09.2002.

● Few years later, the plaintiff ( M/s.Hymavathi Constructions) took out

an application to set aside the exparte decree along with an

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A.No.4596 of 2022 in C.S.No.132 of 2010

application in A.No.5021 of 2007 for condoning the delay of 1,765

days in filing the earlier mentioned application. On 26.02.2008, this

application in A.No.5021 of 2007 was dismissed. Aggrieved by the

same, they preferred an intra court appeal in O.S.A.No.441 of 2008,

and that too came to be dismissed on 29.04.2009.

1.2 Subsequently, the plaintiff herein had laid the present suit, inter alia for

declaring that the exparte decree for specific performance obtained by the first

defendant herein (the plaintiff in C.S.No.205/1999) is null and void on the

ground that (a) the first defendant herein as plaintiff in C.S.No.205/1999 had

played fraud on Court; and (b) the Court had no territorial jurisdiction.

1.3 Two additional facts may also be now stated to complete the narration :

● Prior to the institution of C.S.No.205/1999, Mukandchand Bothra had

instituted O.S.No.1160/1997 for bare injunction seeking to restrain the

plaintiff from alienating the property. It was decreed.

● Notwithstanding the decree in O.S.No.1160/1997 prohibiting the

plaintiff from alienating the property, and also the exparte decree

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A.No.4596 of 2022 in C.S.No.132 of 2010

granting specific performance in C.S.No.205/1999, the plaintiff

(Hymavathi Constructions) through his Power of Attorney sold the

property to a certain Kulwant Singh on 14.11.2003.

● Kulwant Singh had filed a suit both against M/s Hymavathi

Constructions and the first defendant herein in C.S.No.456 of 2007,

almost on identical grounds on which the present suit is laid. In addition,

Kulwant Singh alleges that both the plaintiff and the first defendant in

the present suit have colluded to defeat his right.

3. This is the setting in which the 6th defendant, a legal heir of the decree

holder in C.S.No.205/1999, has filed the present application for rejection of

plaint, on three grounds:

(a) that the procedural option available to the plaintiff for challenging the

exparte decree in C.S.No.205/1999 is to invoke Order IX Rule 13

CPC or in the alternate to prefer a regular first appeal under Section

96 CPC; that the plaintiff had attempted to have the exparte decree

passed in C.S.No.205/1999 set aside, but had lost it right at the

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A.No.4596 of 2022 in C.S.No.132 of 2010

threshold stage, when his application in O.A.No.5021/2007 to

condone the delay for filing it was dismissed. The next best option

open to him was to file a regular first appeal under Section 96, but

that was not done.

(b)While C.S.No.205/1999 was laid against the partnership firm, the

present suit was laid by an individual partner of the firm.

(c) Even according to this defendant, the plaintiff herein became aware

of the exparte decree in C.S.No.205/1999 on 09.06.2007, but he laid

the present suit well beyond the three years time as prov