IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE Mr.JUSTICE S.R.KRISHNA KUMAR CIVIL REVISION PETITION NO.245 OF 2015 (SC) BETWEEN:
M/S. AVINASH SILKS 3RD FLOOR, A.R.COMPLEX KEMPANNA LANE, C.T.STREET CROSS BENGALURU – 560 002.
REPRESENTED BY ITS AUTHORIED PERSON KIRTHI KUMAR.
(BY SHRI.CHANDRASHEKARA.K., FOR SHRI.KIRAN.S. JAVALI, ADVOCATES) AND:
M/S. RISHAB ENTERPRISES NO.79, SIDDANNA LANE NAGRATHPET CROSS BENGALURU – 560 002.
PROPRIETOR SMT. SHANTI KUNUNGA REPRESENTED BY GPA HOLDER N.GOUTHAM KUNUNGA.
(BY SHRI.S.S.HIREMATH, ADVOCATE) …PETITIONER …RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 118 OF THE SMALL CAUSES COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED: 11.02.2015 PASSED IN S.C.NO.993/2014 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI ACMM, (SCCH- 9) BENGALURU, DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioner as well as the counsel for the respondent.
2. Admit.
3. By consent of both sides, the matter is taken up for final disposal.
4. This revision petition is directed against the impugned judgment and order dated 11.02.2015 passed in Small Causes No.993/2014 by the Court of Small Causes, Bengaluru, dismissing the suit filed by respondent/plaintiff against the petitioner/defendant thereby directing the petitioner to pay a sum of Rs.95,854/- to the plaintiff. The Court below also directed that the plaintiff is entitled to recover the principle amount of Rs.72,894/- with interest at 10% pa., from the date of suit till realization.
5. The respondent-plaintiff filed a suit for recovery of a sum of Rs.95,854/- from the defendant with future interest inter alia contending that the plaintiff has supplied products such as embroidery threads, zari etc., to the defendant to the tune of Rs.72,894/-. It was contended that despite having received the goods, the defendant did not pay the invoice amount to the plaintiff resulting in the plaintiff issuing legal notice to the defendant calling upon him to pay the said amount due from him. Since the defendant did not comply with the demand made in the notice, the plaintiff filed the suit for recovery of the sum of Rs.95,854/- from the defendant with future interest.
6. The defendant having entered appearance in the suit through his counsel, filed his written statement denying the plaint averments. It was contended that the claim of defendant was not maintainable and that the defendant had not purchased any goods from the plaintiff as falsely alleged by him. It was also contended that the defendant has nothing to do with the plaintiff and that the suit was liable to be dismissed.
7. On behalf of the plaintiff, his power of attorney holder was examined as P.W.1 and exhibits at P.1 to P.25 were marked on behalf of the plaintiff. Despite having filed his written statement, the defendant did not choose to cross-examine P.W.1 so also the defendant did not adduce oral and documentary evidence to substantiate his defence. Under these circumstances, the Court below apart from drawing adverse inference against the defendant for not choosing to adduce evidence, also took note of the fact that the oral and documentary evidence adduced on behalf of the plaintiff was unimpeached, uncontroverted and unchallenged by the defendant and that consequently, the claim of the plaintiff deserves to be allowed. Accordingly, the Court below decreed the suit in favour of the plaintiff. Aggrieved by the same, the defendant has preferred this revision petition.
8. The main ground on which the impugned judgment and order passed by the Court below has been assailed by the defendant is that the matter was posted for evidence on 20.12.2014. Due to confusion, over-sight and inadvertence, the petitioner noted the next date of hearing as 20.02.2015 instead of 20.12.2014. Under these circumstances, it was not possible for the defendant or his counsel be present before the Court on 20.12.2015, on which day, the matter was adjourned to 22.01.2015 for evidence and cross-examination. On 22.01.2015 also, since the date had been wrongly noted by the defendant and his counsel as 20.02.2015, both of them could not be present before the Court below and the matter was posted for arguments to 30.01.2015. It is also contended that since they were unaware of the posting of the matter on 30.01.2015 also since they had noted the date of hearing as 20.02.2015, the defendant and their counsel could not be present before the Court below on 30.01.2015 also. The Court below after noting the absence of the defendant and his counsel as well as the omission on the part of the defendant to cross-examine P.W.1 to adduce evidence on behalf of the defendant and also failure on the part of the defendant to submit arguments, posted the matter to 11.02.2015 on which day, the Court below passed the impugned judgment and order decreeing the suit in favour of the plaintiff.
9. The learned counsel appearing on behalf of the petitioner submits that the defendant has a good case to urge on merits and the balance of convenience is in favour of the defendant. The sole reason that the defendant and his counsel could not be present before the Court below when evidence was recorded and arguments were heard on behalf of the plaintiff was due to wrong noting of the date as 20.02.2015, by which date, the impugned judgment and order had already been passed on 11.02.2015 in favour of the plaintiff. It is submitted that having regard to the bonafide reasons and unavoidable circumstances stated supra, the defendant-petitioner had sufficient cause for not appearing before the Court below on the aforesaid dates preceding the date of the impugned judgment and order and substantiate his defence. It is also contended that the defendant-petitioner is ready to abide by the terms and conditions to be imposed by this Court in the event an opportunity is granted in favour of the petitioner by remitting the matter back to the Court below for fresh disposal.
10. Per contra, learned counsel appearing on behalf of the petitioner supported the impugned order and sought for dismissal of this revision petition.
11. I have given my careful consideration to the rival submissions and perused the material on record. The undisputed material on record would clearly indicate that except for filing the written statement, the petitioner- defendant did not take any steps to contest the matter further by either cross-examining P.W.1 or by leading evidence in support of the defence or addressing arguments on the merits of claim. As stated supra, the only ground on which the petitioner sought to explain his inability and omission to contest the matter on merits is due to wrong noting down of the date as 20.02.2015 by which date, the impugned judgment and award had already been passed by the Court below on 11.02.2015 itself. In view of the undertaking given by the petitioner and adopting justice-oriented and liberal approach, I deem it appropriate to grant one more opportunity to the petitioner to contest the suit on merits by remitting the matter back to the trial Court.
12. It is needless to state that having regard to the lapse on the part of the petitioner, it is necessary that costs are imposed on the petitioner to enable him to contest the matter on merits in the Court below. It is also necessary that the trial Court is directed to dispose of the suit within a time-bound manner since the suit is of the year 2014. Therefore, without expressing any opinion on the merits of the rival contentions, I proceed to pass the following order:
i) This revision petition is hereby allowed;
ii) The impugned judgment and order dated 11.02.2015 passed in S.C.No.993/2014 by the Court of Small Causes, Bengaluru, is hereby set aside;
iii) The matter is remitted back to the Court below for fresh disposal after giving opportunity to the plaintiff as well as the defendant to adduce further oral and documentary evidence;
iv) The petitioner is directed to pay a sum of Rs.5,000/- to the respondent towards costs of this revision petition.
The petitioner shall co-operate with the Court below for expeditious disposal of the suit and the petitioner shall not seek unnecessary adjournments. The Court below is hereby directed to dispose of the suit as expeditiously as possible and not later than three months from 02.12.2019. Both parties undertake to appear before the Court below on 02.12.2019 without further notice from the Court. No costs.
Sd/-
JUDGE bnv*