INDIRA Vs. SRI L.K. RANGASWAMY

JUDGEMENT

(1.) HEARD Sri K.N. Dayalu, learned counsel appearing for appellant/defendant and Sri Vishwanath Sabarad, learned counsel appearing for respondent/plaintiff. Perused the order passed by XXXI Addl. City Civil Judge, Bangalore City, Bangalore dated 10.08.2009 in Misc. No. 1055/2008, whereunder petition filed under Order 9 Rule 13 read with Section 151 CPC by appellant herein seeking for setting aside the exparte judgment and decree in O.S. No. 8300/2004 dated 18.06.2008, has been dismissed. It is the contention of Sri Dayalu, learned counsel that appellant had not been served with suit summons in O.S. No. 8300/2004 and she became aware of the exparte judgment and decree only when bailiff brought the order of attachment of movables and tried to execute it against appellant/defendant. He would further elaborate his submission by contending that when respondent/plaintiff had evaded service of notice in Misc. Petition he was placed exparte and evidence of appellant/defendant remained uncontroverted and as such Trial Court without examining these aspects had erroneously dismissed Misc. Petition. He would also submit that if an opportunity is granted to the appellant/defendant she would be able to demonstrate and establish before the Trial Court that there was no alleged transaction between the parties and one claimed by respondent/plaintiff is without any basis and as such, he seeks for an opportunity being granted to the appellant/defendant and prays for suit O.S. No. 8300/2004 being restored to its file for being adjudicated on merits.

(2.) PER contra, Sri Vishwanath Sabarad, learned counsel appearing for respondent/plaintiff would support the order passed by Trial Court and contends that appellant/defendant was duly served before the Trial Court and order sheet of Trial Court would also evidence this fact and in the absence of any positive evidence being tendered by appellant/defendant, Trial Court has rightly dismissed the Petition filed under Order 9 Rule 13 read with Section 151 CPC, which does not call for interference and hence, he prays for rejection of the appeal.

(3.) PERUSAL of records would indicate that a suit came to be filed by respondent herein in O.S. No. 8300/2004 for recovery of sum of Rs. 1,50,000/ - together with interest @ 18% p.a. from 10.11.2001 being the date of issuance of cheque till date of filing of the suit i.e., 09.11.2004 and upto date, in a total sum of Rs. 2,31,000/ - with. similar future rate of interest and costs. Suit summons came to be ordered on defendant. Order sheet of the Trial Court in O.S. No. 8300/2004 would indicate that on 06.04.2005 Trial Court has recorded that summons has been duly served on defendant based on the share made by the Registry, which is to the following effect: Served on 15.12.2004. Thereafterwards trial Court has called out defendant, on account of none having appeared, it has been recorded as absent and it is thereafter defendant came to be placed exparte on 12.12.2005. It is thereafter Trial Court has proceeded to adjudicate the claim of plaintiff and decreed the suit as prayed for.