ASHOK S/O SHEELAVANTAPPA INDI Vs. RAMCHANDRA

JUDGEMENT

(1.) This appeal is directed against the order passed by the Senior Civil Judge and J.M.F.C., Ron ('the trial Court' for short) in Civil Misc. No.15/2014 dated 24.06.2015, whereby the I.A.No.1 filed by the original appellant/ petitioner (defendant No.2 in O.S.No.1/2012) under Section 5 of the Limitation Act is allowed dismissing the petition filed under Order IX Rule 13 of Code of Civil Procedure.

(2.) Respondent No.1 herein filed O.S.No.1/2012 before the trial Court for the relief of specific performance of contract on the basis of agreement of sale dated 16.02010, against the original appellant/defendant No.2 and respondent Nos.2 and 3 herein. It was contended that the original appellant/defendant No.2 and respondent No.2 herein agreed to sell 10 acres of land bearing Sy.No.264 of Unachageri village in Ron taluk for consideration of Rs.7,90,000/- per acre. In the said suit proceedings, summons were issued, the notice issued to the original appellant/defendant No.2 was returned with postal shara "residing at Belgaum". The trial Court on 09.02012 was pleased to reissue summons. Again the notice was returned unserved with postal shara 'insufficient address'. The trial Court on 17.11.2012 ordered for issuance of summons by paper publication, which was published in Prajavani Kannada Daily Newspaper on 06.1201 On 10.12012, the trial Court was pleased to hold that the summons were duly served and defendant No.2/original appellant was placed exparte. Though defendant No.1 was served with notice he did not file written statement in time and subsequently application filed for permission to file written statement was allowed with costs of Rs.500/-. However, defendant No.1/respondent No.2 did not pay the costs, hence the written statement was not considered by the trial Court and defendant No.3 though filed written statement her only contention was that she has a share in the suit property. Considering these aspects, the trial Court decreed the suit on 01.08.2014 granting relief of specific performance against defendant Nos.1 and Aggrieved by the same, the original appellant/defendant No.2 preferred civil miscellaneous petition for setting aside the ex-parte judgment and decree. The trial Court dismissed the same. Hence, this appeal.

(3.) Learned counsel Sri Dinesh M.Kulkarni appearing for the appellants would contend that the trial Court ought to have noticed that since the subject matter of the suit was for specific performance of contract in respect of the valuable agricultural land and by virtue of ex-parte judgment and decree, the rights of the appellants is seriously affected. One more opportunity ought to have been provided to the appellants to contest the suit on merits by recalling the judgment and decree, it was submitted that the appellants were oblivious of the suit proceedings. Moreover, there was no material before the Court below to order for paper publication by invoking Order V Rule 20 C.P.C. in the absence of proof of refusal of notice, the Court below ought not to have ordered for publication of notice in the newspaper. Thus, the learned counsel seeks to set aside the impugned order allowing this appeal.