IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.836 OF 2016 BETWEEN 1. J.Satish, S/o. Late M. Janardhan, Aged about 44 years, G.M. Friendly Motors India Pvt. Ltd., No.1126, 16th Cross, 4th Main, Manthavadi Road, Vidyaranyapuram Mysore-570008.
Now R/at 39th Cross, ‘K’ Block, Vasu Layout, Ramakrishnanagar, Mysuru-570022.
2. J. Praveen, S/o. Late M. Janardhan, Aged about 40 years, Residing at D.No.4/1, 1st Floor, 9th Main Road, Dr. Rajkumar Road, Srinivasa Nagara, Bengaluru-560050.
(By Sri. G. Ravishankar Shastry, Advocate) …Appellants AND 1. M.G.Harish Kumar, S/o. M.G. Maheshwarappa, Aged about 35 years, 2. M.G.Naveen Kumar, S/o. M.G. Maheshwarappa, Aged about 33 years, Both are residing at D.No.1165, 11th Main, RPC Layout, Vijayanagara, Bengaluru-560040.
(By Sri. Lokesh Boovanahalli, Advocate) …Respondents This RFA is filed under Section 96 and Order 41 Rules 1 and 2 of CPC., against the judgment and decree dated 09.03.2015 passed in O.S.No.2041/2014 on the file of XLI Additional City Civil Judge, Bengaluru, partly decree the suit for recovery of money.
This RFA coming on for admission, this day, the Court made the following :
ORDER Since this appeal can be disposed of at the time of admission, the appellants’ counsel and the respondents’ counsel are heard.
2. The appellants are the defendants 1 and 2 in the suit O.S.No.2041/2014 on the file of Addl. City Civil Judge, Bengaluru. The respondents herein instituted the suit for recovery of Rs.10,20,000/- along with interest at the rate of 18% p.a. from the appellants. The respondents being the plaintiffs pleaded that the appellants’ father Janardhan sold the suit property to them by executing a registered sale deed dated 04.08.2007 for sale consideration of Rs.10,20,000/-. The respondents obtained Khata to their name and they were paying the property tax also. In the first week of October, 2013, the respondents went near the suit property for cleaning it as they wanted to put up construction there. At that time, they came to know that BBMP had formed 30 ft. Raja Kaluve in their suit property and other adjoining properties. When they made enquiries in the Office of the BBMP, they came to know that the property that they had purchased actually did not exist there. Therefore the respondent met the appellants and requested them to return the sale consideration amount of Rs.10,20,000/-. The appellants did not heed to their request. Thereafter the respondents got issued a legal notice and then filed the suit.
3. The appellants who are the defendants in the suit did not appear before the trial court inspite of service of summons on them. The trial court placed them ex-parte and proceeded further. After recording the evidence of the 1st plaintiff as PW-1 and relying upon the relevant documents as per Ex.P.1 to P.11, the trial court decreed the suit directing the appellants to pay an amount of Rs.10,20,000/- with interest at the rate of 18% p.a. to the respondents.
4. The learned counsel for the appellants submits that actually summons was not served on the appellants. Had they received the summons, they would not have remained silent without contesting the suit. Actually the plaintiffs were in possession of the suit property for a period of six years. They thought of filing the suit thereafter. They obtained Khata and paid the tax also. They mislead the court to obtain the decree against the appellants. The appellants did not have an opportunity to contest the suit.
Hence the matter be remanded to the trial court to enable them to contest the suit.
5. The learned counsel for the respondents argues that summons was served on the appellants and they did not choose to contest the suit. When service of summons was effected, there are no grounds to allow the appeal and remand the case to the trial court.
6. From the plaint averments, it is clear that the respondents claimed refund of the sale consideration amount finding that the suit property did not exist. It is a matter to be noted here that the sale deed was executed on 04.08.2007 and that they obtained khata and paid the taxes thereafter. It was only in the year 2013 they came to know that the suit property did not exist and therefore they sought for refund of the sale consideration amount. The appellants’ state that they did not receive the summons and the same is refuted by the respondents. Be that as it may, in the set of circumstances, I am of the opinion that the appellants must be given an opportunity to contest the suit. Therefore the appeal is allowed. The judgment of the trial court dated 09.03.2015, is set aside. The matter stands remanded to the trial court. The appellants shall pay cost of Rs.10,000/- to the respondents. The parties are directed to appear before the trial court on 21.01.2019 and on that day the appellants shall file their written statement and pay the cost to the respondents. Court fee paid by the appellants be refunded to them.
Sd/- JUDGE sd