C M IBRAHIM Vs. P AMIDIAS MATHEWS

JUDGEMENT

(1.) The appellant has preferred this appeal impugning the order dated 10.7.2012 by the XI Additional City Civil Judge, Bengaluru (for short, learned Civil Court) in Miscellaneous No. 837/2009 commenced by the appellant under the provisions of Order IX Rule 13 of the Code of Civil Procedure (for short, CPC). The learned Civil Court by the impugned order dated 10.7.2012 has rejected the petition in Miscellaneous No. 837/2009.

(2.) The factual background for this appeal is as follows. The respondents - plaintiffs commenced the suit in O.S. No.3989/2000 on the file of the XI Additional City Civil Judge, Bengaluru, initially, for permanent injunction against the appellant -defendant as regards the different immovable properties described in the suit schedule. But, the respondents - plaintiffs later amended the plaint to include the prayer for declaration of title to these properties and for other consequential relief/s, including relief for the mandatory injunction to demolish the building constructed by the appellant - defendant and delivery of possession of these properties. The appellantdefendant was notified of the suit. The appellant - defendant entered appearance through his attorney and filed written statement on 29.6.2000. However, the appellant - defendant neither filed additional written statement nor participated in the proceedings post the amendment of the plaint seeking declaration of title to the suit schedule properties, mandatory injunction to demolish constructions and delivery of possession. The respondents - plaintiffs, who had led evidence even prior to the amendment of the plaint, led further evidence thereafter. The respondents - plaintiffs examined five witnesses on their behalf and marked 26 exhibits. As the appellant - defendant did not participate in the proceedings, no witnesses were examined on his behalf. The learned Civil Court decreed the suit by its judgment and decree dated 5.10.2009.

(3.) The appellant - defendant filed a petition under Order IX Rule 13 of CPC in Misc.No.837 of 2009 for setting aside this judgment and decree dated 5.10.2009. The appellant - defendant contended in this petition that he was informed by his counsel on record that the appellant - defendant would be informed about the progress in the case and called upon to attend the court whenever required. The appellant - defendant, a politician actively engaged in public affairs, did not participate in the proceedings under the bona fide belief that the counsel on record, as assured, would update him about the proceedings and his presence would not be required until called upon by the counsel. He was under the impression that the suit was pending adjudication. However, when the respondents - plaintiffs started visiting the property asserting adjudication of the suit in their favour, the appellant - defendant verified and ascertained that the suit in O.S.No.3989/2000 was decreed ex parte. The suit schedule properties are utilized for the purposes of running an engineering college. As such, a petition under Order IX Rule 13 of CPC is presented