IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL No.1958 of 2016 (SP) BETWEEN :
MR. A.S.KHAN S/O S.A. KHAN AGED ABOUT 55 YEARS, PROPRIETOR: M/S TIRUPATI DEVELOPERS, 36, 1ST BLOCK, KORAMANGALA, BANGALORE – 560 036.
... APPELLANT (BY SRI. MUHAMMAD SHAMIL, ADVOCATE FOR SRI. AJIT P B AND SRI.THONTADHARYA R K, ADVOCATES) AND:
1. MR. KHEMANI KISHORE DEEPCHAND, AGED ABOUT 56 YEARS, S/O DEEPCHAND H KHEMANI, DOING BUSINESS AT PO BOX NO.50150. DUBAI-UAE.
2. MRS. NITA KISHORE KHEMANI, W/O KHEMANI KISHORE DEEPCHAND, AGED ABOUT 51 YEARS, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR.KHEMCHAND KISHORE DEEPCHAND DOING BUSINESS AT PO BOX NO.50150. DUBAI-UAE.
... RESPONDENTS (NOTICE TO R-1 AND R-2 DISPENSED VIDE ORDER DATED 01.07.2019) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 7TH SEPTEMBER 2016 IN O.S.NO.1104/2006 ON THE FILE OF THE XI ADDL CITY CIVIL JUDGE AT BANGALORE CITY CCH.8, AND DECREE THE SUIT AS PRAYED FOR IN THE PLAINT IN O.S.NO.1104/2006 ON THE FILE OF THE XI ADDL CITY CIVIL JUDGE AT BANGALORE CITY CCH.8.
THIS REGULAR FIRST APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Notice to respondents was dispensed with vide order dated 01.07.2019, as the respondents were placed ex parte before the trial Court in the suit.
2. I.A.No.1/2016 has been filed by the appellant seeking permission to withdraw the suit in O.S.No.1104/2006 which was dismissed by the XI Additional City Civil Judge, Bangalore City, by judgment dated 07.09.2016, with liberty to institute a fresh suit.
3. We have heard Sri.Muhammad Shamil, learned counsel for Sri.Ajit P.B. and Sri.Thontadharaya, learned counsel for the appellant and perused the material on record.
4. The plaintiff in Original Suit No.1104/2006 has preferred this appeal assailing the dismissal of the suit by judgment and decree dated 07.09.2016 passed by the XI Additional City Civil Judge, Bangalore City. The appellant herein had sought for a declaration that the mortgage by conditional sale deed dated 19.12.1994 stood foreclosed, and also to declare that the plaintiff had become the absolute owner of the property bearing site No.36, 1st Block, situated at Koramangala, Bengaluru, measuring 60’ X 40’ together with a residential building thereon and for consequential relief of mandatory injunction directing the defendants jointly and severally to execute a registered sale deed in favour of the plaintiff in respect of the suit schedule property and for consequential relief of permanent injunction restraining the defendants or their agent or any other person claiming under them from interfering with plaintiff’s peaceful possession and enjoyment of the suit schedule property.
5. Pursuant to the issuance of suit summons through newspaper publication, defendants remained absent and were placed ex parte.
6. Plaintiff examined himself as PW-1 and got marked 13 documents as Exs.P1 to P13.
7. After scrutinizing the evidence on record, the trial Court framed the following points for its consideration:-
“1. Whether the plaintiff establishes that defendants duly executed a mortgage deed by conditional sale 19.12.1994 agreeing that on default of payment of mortgage money of Rs.24.00 lakhs by defendants within 24 months, the sale shall become absolute?
2. Whether plaintiff has made out a ground to get the registered sale deed executed from defendants in respect of suit property?
3. Whether plaintiff established that he is in possession of suit schedule property?
4. What decree or order?”
8. The trial Court answered point Nos.1 to 3 in the negative and dismissed the suit. Aggrieved by the order of dismissal of the suit, the plaintiff has preferred this appeal.
9. During the pendency of this appeal, the plaintiff has filed an application (I.A.No.1/2016) under Order XXIII Rule 1(3) read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking permission to withdraw the suit – O.S.No.1104/2006 with liberty to institute a fresh suit on the same subject matter and same cause of action.
10. Before this Court, appellant has sought for dispensation of notice to the respondents, as they were placed ex parte before the trial Court and the same has been ordered on 01.07.2019.
11. Learned counsel for the appellant submits that the suit filed by the appellant suffers from a formal defect and therefore, permission is sought under Order XXIII Rule 1(3) read with Section 151 of the Code of Civil Procedure, 1908, (CPC) to withdraw the suit with liberty to file a fresh suit on the same cause of action in respect of same subject matter. He has drawn the attention of this Court to Order XXXIV Rule 1 of CPC, to contend that the appellant / plaintiff did not seek for the relief of possession in the said suit and therefore, the suit filed for foreclosure of the mortgage was defeated and hence, permission may be given to the appellant to withdraw the suit with liberty to file a fresh suit.
12. We have perused the judgment of the trial Court which is impugned in the appeal in the light of the arguments made by learned counsel for the appellant, we find that the suit has been dismissed as the appellant / plaintiff has failed to establish the execution of Ex.P.1 i.e., mortgage deed dated 19.12.1994.
13. When such a finding is arrived at by the trial Court, we find that it is impermissible to permit the appellant to seek withdrawal of the suit with liberty to file a fresh suit on the same cause of action. In the circumstances, application - I.A.No.1/2016 is dismissed.
14. At this stage, learned counsel for the appellant submitted that the appellant is in possession of the suit schedule property and therefore, liberty may be reserved to the appellant to file a fresh suit on a different cause of action. He also submitted that liberty may be reserved to the appellant to take all legal contentions permissible under law in the event, the defendants or any other third party files a suit in respect of the suit schedule property against the appellant.
15. We think it is just and proper to reserve liberty to the appellant to file a suit on a fresh cause of action, if so advised as against the defendants, in respect of the suit schedule property. We also reserve liberty to the appellant to raise all contentions available in law, in the event, the defendants or any other third party files a suit in respect of the suit schedule property against the appellant herein. Consequently, the impugned judgment and decree of the trial Court is not interfered with in this appeal. Accordingly, the appeal stands dismissed, subject to the aforesaid liberty.
In view of the dismissal of the main appeal with the above said terms, I.A.No.1/2017 stands dismissed as having become infructuous.
Sd/- JUDGE Sd/- JUDGE VMB