L.M.J. INTERNATIONAL LTD. REPRESENTED BY ITS EXPORT DIRECTOR MR. VIKRAM SAHAL S/O VISHNU PRAKASH SAHAL Vs. BHARATHMATHA COFFEE WORKS REPRESENTED BY ITS PROPRIETOR, M.R. SHRIDHAR S/O LATE M. RAMA SETTY

JUDGEMENT

(1.) THIS writ petition is filed challenging the order dated 20.12.2008 passed in M.A. No. 16/2008 by the learned District, and Sessions Judge, Chikmagalur, confirming the order dated 12.08.2008 passed in C. Misc. No. 13/2008 by the learned Civil Judge (Sr.Dri.) Chikmagalur.

(2.) C . Misc. No. 13/2008 was filed by the petitioner herein seeking to set aside an exparte Judgment and Decree passed in O.S. No. 34/1998. The said suit was filed by the respondent herein seeking recovery of money and the same was decreed on 20.06.2000. The petitioner sought for setting aside the decree passed exparte on the ground that he was no? served with the suit, summons and had no knowledge of the proceedings instituted and that he learnt about the decree passed only in the month of March, 2002, when the Ameen came to him for execution of the decree and only thereafter he filed the Miscellaneous Petition. An application seeking condonation of delay was also filed explaining the delay in similar terms. The Trial Judge, who considered the Miscellaneous Petition held that the petition was barred by time and hence dismissed the same. On appeal, the Appellate Court has concurred with the findings recorded by the Trial Court and consequently dismissed the appeal, M.A. No. 16/2008. Aggrieved by these two orders, this writ petition is tiled.

(3.) LEARNED Counsel appearing for the respondent strongly refutes the contention of the learned Counsel for the petitioner and draws the attention of the Court to the evidence of the petitioner, which is produced along with the statement of objections filed by him to the Writ Petition at Annexure - "R -6". In paragraph 2 of the deposition, in the examination -in -chief of one Vikram Sahal, who is examined for the petitioner company, it is stated that he was aware of the proceedings instituted in the suit prior to Dasara Vacation. He further states that he had received a notice to appear before the Court during Dasara Vacation. After Dasara Vacation, twice the case came to be adjourned as the Presiding Officer was on leave. Order sheet in the suit, which is produced at Annexure "R -5" corroborates the version of the petitioner as found in his examination in chief. It discloses the suit was infact posted during Dasara Vacation and thereafter it was adjourned as the Presiding Officer was on leave. However, what is conspicuously absent in the proceeding sheet is about the service of notice on the petitioner, but the order sheet discloses that as the postal acknowledgment had not been received by the Trial Court, it had called upon the concerned post office to report as to whether the registered post containing the summons was delivered to the defendant. Learned Counsel for the respondent has produced a copy of the postal communication addressed to the Civil Judge and Chief Judicial Magistrate, Chikmagalur, in this regard at Annexure - "R -3", wherein the Superintendent of Post Office has informed that the registered post was infant delivered to the addressee. Since no order is passed by the Court below on this postal correspondence, it is not necessary to delay further on this point. Suffice to say that admittedly the suit summons was. served on the petitioner prior to Dasara Vacation and he was aware of the fact that the matter was posted before the Court on more than one occasion and was adjourned as the Presiding Officer was on leave. If that is so, the position of the petitioner is worse than what has been found by both the Courts below. Both the Courts have no doubt found that the explanations offered by the petitioner for the delay of four months from 04.12.2001, on which date admittedly the notice in Execution Petition was served on him, was not acceptable. The Courts below have also found that the stand taken by the petitioner in this regard has been inconsistent and the petitioner did not come out before the Court with true facts. There is absolutely no reason to disagree with these findings recorded by both the Courts. In addition, this Court being anxious to know if there was any failure of justice, as the suit summons were not allegedly served, on the petitioner, further probed the matter. It transpires that the evidence of the petitioner itself discloses that admittedly the suit summons were infact served on the petitioner and the plaintiff was aware of the pendency of the suit;