IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.10/2014 BETWEEN:
SMT.LAKSHMAMMA W/O THIMMARAYAPPA AGED ABOUT 60 YEARS AGRICULUTRIST R/AT YERAMANCHANAHALLI VILLAGE KASABA HOBLI, NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 123 … APPELLANT (BY SRI A.V.GANGADHARAPPA, ADVOCATE) AND:
1. ANJANAPPA S/O THIMMAIAH AGED ABOUT 57 YEARS R/AT NO.277, 2ND STAGE MUNISWAMAPPA EXTENTION CHENNANAYAKANA PALYA NAGASANDRA POST, BANGALORE – 560 073 2. THAMMAIAH S/O THIMMAIAH AGED ABOUT 55 YEARS R/AT NO.237, 1ST MAIN ROAD PREM NAGARA BANGALORE – 560 058 …RESPONDENTS (BY SMT. M.D.ANURADHA URS, ADVOCATE) THIS MSA IS FILED UNDER ORDER 43 RULE (1) (U) OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 16.12.2013 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA IN R.A.NO.2/2010 AND RESTORE THE JUDGMENT AND DECREE DATED 21.01.2003 PASSED BY THE COURT OF THE CIVIL JUDGE (JUNIOR DIVISION) AND JMFC, NELAMANGALA IN O.S.NO.63/1996.
THIS MSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the plaintiff arises out of the judgment and decree dated 16.12.2013 passed by the Senior Civil Judge & JMFC, Nelamangala in RA No.2/2010. By the impugned judgment, the First Appellate Court has allowed the appeal of the defendants reversed the judgment and decree dated 21.01.2003 passed by the Civil Judge (Junior Division) & JMFC, Nelamangala in OS No.63/1996 and remanded the matter to the trial Court to consider the case afresh by affording opportunity to the defendants to contest the matter.
2. The appellant filed OS No.63/1996 against the respondents before the Civil Judge, Nelamangala for specific performance of agreement of sale dated 16.01.1990 in respect of plaint schedule item Nos.1(a) to 1(f) properties situated at Mylanahalli and plaint schedule item No.1(g) situated at yaramanchanahalli, Nelamangala Taluk.
3. For the purpose of convenience, parties will be referred to henceforth with their ranks before the trial Court.
4. The defendants are the brothers-in-law of the plaintiff. Plaintiff contended that for their legal necessity defendants agreed to sell the suit properties and executed agreement of sale dated 16.01.1990 for consideration of Rs.5,000/- and put her in possession. She further contended that due to prohibition of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, the sale deed could not be executed, therefore, the defendants executed renewed agreement of sale on 15.01.1993 agreeing to execute the sale deed within three years there from. She alleged that thereafter they failed to execute the sale deed.
5. Sri L.Satyanarayana, learned Counsel filed power for defendant No.1 and Sri C.Krishnappa Reddy, learned Counsel filed power for defendant No.2 in the suit.
6. For defendant No.1 no written statement was filed. The written statement said to have been filed by defendant No.2 conceding to the plaintiff’s case. On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.P1, P1(a) to P1(e) were marked. No evidence was adduced on behalf of the defendants. The trial Court relying on the evidence of the plaintiff and concession of defendant No.2 and non contest of defendant No.1 held that the case of the plaintiff is proved and decreed the suit by impugned judgment and decree dated 21.01.2003.
7. After more than four years, defendant Nos.1 and 2 filed RA No.45/2007 before the Senior Civil Judge, Bangalore Rural District, Bengaluru with IA Nos.1 and 2 under Section 5 of the Limitation Act for condonation of delay. Order sheet of the First Appellate Court shows that upto 13.10.2009, the matter was listed for hearing on IA Nos.1 and 2.
8. On 13.10.2009, the First Appellate Court ordered to issue reminder for LCRs. Thereafter, matter was being listed upto 03.12.2009 before the Senior Civil Judge, Bangalore Rural District, Bangalore for receipt of records. Order Sheet dated 03.12.2009 states that the records were received and the matter was posted for hearing arguments on the appeal.
9. When the matter was being so listed for arguments on appeal on 19.12.2009, it appears that the Senior Civil Judge, Bangalore Rural District, Bangalore received an order of transfer of the matter to the Court of the Senior Civil Judge & JMFC, Nelamangala. Accordingly, the records were transferred to the Senior Civil Judge & JMFC, Nelamangala.
10. In the Court of the Senior Civil Judge & JMFC, Nelamangala, the appeal was renumbered as RA No.2/2010, then the matter was being listed for hearing of arguments on the appeal. The learned Senior Civil Judge, Nelamangala heard the arguments on the appeal and by the impugned judgment and decree allowed the appeal and remanded the matter to the trial Court as aforesaid.
11. The defendants contended before the First Appellate Court that they did not engage the services of advocate Sri L.Satyanarayana and Sri C.Krishnappa Reddy and fraud is played on them as well as on the Court in conceding the case of the plaintiff in their names.
12. The First Appellate Court in para 14 of the judgment refers to the allegations of the defendants and states that in its opinion the matter requires proper adjudication and the defendants shall be given opportunity to contest the matter, thus allowed the appeal and remanded the matter.
13. Sri A.V.Gangadharappa, learned Counsel for the appellant submits that there was inordinate delay of more than four years in filing the appeal and the First Appellate Court without hearing and deciding the application for condonation of delay has directly allowed the appeal which is unsustainable.
14. Per contra, Smt.M.D.Anuradha Urs, learned Counsel for the respondents submits that the plaintiff had argued her case before the First Appellate Court and Counsel had furnished precedents in support of her contention regarding condonation of the delay.
15. Having regard to the rival contentions, the question that arises for consideration in this appeal is “whether the First Appellate Court has considered the delay condonation application, if not, whether the impugned judgment and decree is sustainable in law”?
16. As discussed already in detail, the order sheet and other records of the First Appellate Court show that from 13.10.2009 onwards the matter was not listed for hearing on the application for delay condonation. Having regard to such inordinate delay, if at all, the delay application was listed for arguments, evidence of the parties in support of the application or opposing the said application should have been recorded. That is not forth coming in the records of the First Appellate Court.
17. The impugned judgment and decree nowhere refers to the aspect of delay and consideration of the same. The order sheet and the impugned judgment and decree show that the First Appellate Court heard the appeal on merits and disposed of the same.
18. It is clear that the impugned judgment and decree was passed without considering the delay condonation application. Unless the defendants succeed in satisfying the Court on the aspect of the delay, they were not getting any right of hearing on the appeal. Therefore, without deciding whether they had right of hearing on the appeal, the First Appellate Court proceeded to dispose of the matter on merits which is unsustainable. Therefore, the appeal is allowed.
19. The impugned judgment and decree dated 16.12.2013 passed by Senior Civil Judge & JMFC, Nelamangala in RA No.2/2010 is hereby set aside. The matter is remanded to the First Appellate Court.
20. The First Appellate Court shall hear the parties on I.A.Nos.1 and 2 which were filed by the defendants/appellants in RA No.2/2010 for condonation of delay. If the parties chose to lead evidence on the applications, the First Appellate Court shall give opportunity to both the parties to lead evidence and then decide the applications.
21. The First Appellate Court shall hear and dispose of IA Nos.1 and 2 filed in RA No.2/2010 within three months from the date of appearance of the parties.
To avoid further delay, the parties are hereby directed to appear before the First Appellate Court on 25.03.2019 without any further notice.
Registry shall transmit the records to the trial Court forthwith.
KSR Sd/- JUDGE