Introduction 

• This is a landmark judgment relating to the power of the Court under Section 96 of the Code of Civil Procedure, 1908.  
• This judgment was delivered by a 2-judge bench comprising of Justice Ajay Rastogi and Justice Abhay S. Oka.    

Facts

• The first respondent, the original plaintiff, filed a suit in the City Civil Court at Bangalore seeking a declaration that he was the absolute owner of Site No. 28 at BTM Layout, Bangalore, referred to as the "suit property." 
• The suit property, according to the first respondent, included lands from Survey Nos. 56, 57, and 60 of Bilkenahalli Village, and Survey Nos. 61, 71, and 72 of N.S. Palya Village in Bangalore South Taluk. 
• The first respondent also sought a decree for the removal of a structure erected by the appellant on the suit property, which he contended was illegal. 
• The other two respondents in the appeal were the second and third defendants in the original suit. 
• On 19th September 2015, the City Civil Court at Bangalore delivered a judgment declaring the first respondent as the owner of the suit property. 
• The Trial court also issued a decree directing the appellant and the second respondent to remove the structure on the suit property. 
• Additionally, the appellant and the second respondent were restrained by a perpetual injunction from entering the suit property or interfering with the first respondent's peaceful possession and enjoyment of the property. 
• The trial court noted in paragraph 20 of its judgment that the appellant and second respondent did not appear despite the service of summons and did not contest the suit. 
• The High Court of Karnataka, in the impugned judgment, upheld the trial court's decree on merits. 
• The appellant, the original first defendant, challenged the judgment and order dated passed by the High Court of Karnataka under Section 96 of the Code of Civil Procedure, 1908 (CPC). 

Issue Involved

• Whether in the present facts appeal under Section 96 of CPC should be allowed? 

Observations  

• The Court examined the scope of adjudication under Section 96 of the CPC in cases where a defendant appeals against an ex parte decree passed by the trial court. 
• The Court further observed that it is a well settled position that: 
  • A defendant has two remedies when an ex parte decree is passed: 
    • a) File an appeal under Section 96(2) of CPC.
    • b) File an application under Rule 13 of Order IX of CPC to set aside the decree.
  • Both remedies can be pursued simultaneously; however, if the appeal against the decree is dismissed, the application under Rule 13 of Order IX becomes non-maintainable due to the explanation appended to Rule 13. 
• A defendant who did not file an application under Rule 13 of Order IX can argue in appeal that the trial court’s decision to proceed ex parte was unjustified, based on the trial court's record. 
• In the facts of the present case the Court held that: 
  • The trial court proceeded ex parte against the appellant based on improper service of summons. 
  • Summons returned unserved with remarks such as "premises locked" or "intimation delivered." 
  • The trial court did not comply with Rule 17 of Order V of CPC, which requires affixing summons on the premises in such cases. 
  • Without verifying the appellant’s address, the trial court proceeded ex parte, which was deemed unjustified by the Court. 
• The suit property had a multi-storeyed building occupied by various individuals. Since a decree for demolition of the building was issued, the Court considered it appropriate to remand the suit for proper adjudication. 
• The Court finally in this case set aside the judgments and decree of the High Court. 

Conclusion

• This case lays down the power of the Court under Section 96 of CPC. 
• The Court held that the appellant can always argue in an appeal under Section 96 of CPC that suit summons were not served and the trail Court was not justified in proceeding ex-parte against him.