IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.9/2014 BETWEEN:
1. MR.SANJAY D’SOUZA AGED ABOUT 47 YEARS INDIAN HABITANT R/AT C-1/14 MAHINDRA NAGAR MALAD EAST MUMBAI- 400 097 2. MR.AUGUSTINE QUADROS AGED ABOUT 52 YEARS INDIAN INHABITANT R/AT B-106M GILL HAZE APARTMENTS LOURDES COLONY, ORLEM MALAD WEST MUMBAI- 400 064 …APPELLANTS (BY SRI RAJENDRA M.S.FOR SRI VIVEK HOLLA, ADVOCATES) AND:
MR.V.ABDUL LATHEEF AGED ABOUT 51 YEARS INDIAN INHABITANT R/AT E.K.HOUSE VOGGA KADABETTU VILLAGE BANTWAL TALUK- 574 811 …RESPONDENT (BY SRI NAGARAJA IJARI, ADVOCATE) THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 29.10.2013 PASSED BY THE COURT OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE, D.K. IN REGULAR APPEAL NO.48/2013.
THIS MSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the plaintiffs arises out of judgment and decree dated 29.10.2013 passed by II Additional Senior Civil Judge, Mangalore, D.K. in RA No.48/2013. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the defendant and set aside the judgment and decree passed by III Additional Civil Judge, Mangalore in OS No.531/2011. By the said judgment and decree, the trial Court had decreed the suit of the plaintiffs for permanent injunction and dismissed the counter claim of the defendant.
2. Subject matter of the suit in OS No.531/2011 was property bearing Survey No.9/2 measuring 28 cents situated at Kodailbail ‘B’ village of Mangalore City. The said property was originally granted to one B.K.Somayya. On his death on 21.01.1993, it devolved on his wife and daughter. They sold the property to one Seetharam Bhandary and Krishna Kumar Bhandary under registered sale deed dated 21.05.1997. Before the said sale they obtained permission of the Deputy Commissioner, Dakshina Kannada on 13.05.1997 for alienation as it was granted land.
3. According to the plaintiffs, Seetharam Bhandary bequeathed his share to one Monisha Naik. Said Monisha Naik and Krishna Kumar Bhandary sold the property to the plaintiffs under registered sale deed dated 14.03.2006. They claimed that they are in exclusive enjoyment of the suit schedule properties. They contended that with permission of the local authorities, they constructed the building, of late defendant started to interfere with their possession, therefore they seek decree of permanent injunction.
4. Defendant filed written statement denying the case of the plaintiffs and contended that he has purchased 28 cents of land in Survey No.9/2P1 from legal heirs of Kunhi Pathumma. He contended that she had acquired that property under Arbitration Award dated 15.02.1962 in O.P.No.14/1962 on the file of the Principal Subordinate Judge, Thalsherry. Defendant claimed that plaintiffs are claiming his property.
5. On basis of such pleadings, the trial Court framed the following issues:
1) Whether the plaintiffs prove that, they are in possession of the plaint schedule property as on the date of filing of the suit?
2) Whether the plaintiffs further prove that the alleged interference caused by the defendant?
3) Whether the plaintiffs are entitled to permanent prohibitory injunction against the defendant as prayed in the plaint?
4) Whether the defendant proves that he is in possession of the written statement schedule ‘A’ property as on the date of filing of the suit?
5) Whether the defendant proves that the alleged interference caused by the plaintiffs?
6) Whether the defendant is entitled to permanent prohibitory injunction against the plaintiffs as prayed in the written statement?
7) What order or decree?
6. Parties adduced evidence. Plaintiff No.1 was examined as PW.1. Exs.P1 to P63 were marked. Defendant did not appear to cross examine PW.1 nor led his evidence. The trial Court by oral and documentary evidence on record held that plaintiffs by their evidence have proved their claim and lawful possession and the defendant failed to prove his counter claim.
7. Aggrieved by the said judgment and decree, defendant filed RA No.48/2013. The First Appellate Court after hearing the parties by impugned judgment and decree set aside the decree of the trial Court and remanded the matter on the ground that the trial Court admittedly had not given opportunity to the defendant to put forth his claim.
8. Sri Rajendra.M.S., learned Counsel for the appellants seeks to assail the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) Though the First Appellate Court formulated point Nos.1 and 2 with regard to merits of the case, without answering them, on the sole ground of granting opportunity to the defendant, the First Appellate Court remanded the matter which is untenable;
(ii) The observation of the First Appellate Court that admittedly opportunity was not given is incorrect as there was no such admission on the part of the plaintiffs;
(iii) Inspite of defendant not showing any justification for non appearance before the trial Court, the First Appellate Court proceeded to hold that no opportunity was given which is incorrect; and (iv) After prolonged trial, the plaintiffs got benefit of considered judgment of the trial Court and without meeting the findings of the trial Court the First Appellate Court remanded the matter which is untenable.
9. In support of his contentions, he relied on the following judgments:
(1) Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [(2011) 9 SCC 678] (2) Gopreddy vs-Bhaganna [ILR 1985 KAR 2784] (3) Municipal Corpn., Hyderabad v. Sunder Singh [(2008) 8 SCC 485] 10. Per contra, Sri Nagaraja Ijari, learned Counsel for respondent seeks to support the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) The trial Court proceeded to dispose of the case within two weeks from the date of commencement of evidence of the plaintiffs;
(ii) Defendant was not given proper opportunity;
(iii) Defendant’s Counsel was not well, therefore, he could not appear before the trial Court;
(iv) The impugned decree of the trial Court was exparte decree. Therefore, Order IX Rule 13 of CPC enables the First Appellate Court to set aside the decree; and (v) The trial Court without considering IA No.4 filed by defendant for appointment of Commissioner proceed to decree the suit and rejected the counter claim which vitiated the decree of the trial Court.
11. In support of his contention he relied on the following judgment:
(i) G.Ratna Raj (D) By Lrs. versus Sri Muthukumarasamy Permanent Fund Ltd. And Another [LAWS (SC) 2019 2 2] 12. Having regard to the rival contentions, the question that arises for consideration of this Court is whether the First Appellate Court was right in reversing the judgment and decree of the trial Court and remanding the matter for fresh trial.
13. There is no dispute that the plaintiff examined PW.1 on 06.11.2012. Order sheet of the trial Court in the suit shows that from 06.11.2012 till the decree was passed on 21.11.2012 neither the defendant nor his counsel appeared before the trial Court. Despite there being no representation on 06.11.2012, the trial Court posted the matter to 08.11.2012 for cross-examination of PW.1. But on 08.11.2012 also nobody appeared for the defendant. Therefore, trial Court took cross-examination of PW.1 as nil and posted the matter to 09.11.2012 for defendant’s evidence.
14. On 09.11.2012 also, there was no representation for the defendant. Therefore trial Court closed the evidence of defendant and posted the matter to 13.11.2012 for arguments. On 13.11.2012 also, there was no representation for the defendant. The trial Court after hearing the plaintiffs’ Counsel posted the matter to 15.11.2012 for arguments of the defendant’s side.
15. On 15.11.2012, there was no representation for the defendant and the trial Court posted the matter for judgment to 17.11.2012. It appears that the trial Court sought some clarification in the matter and therefore on 17.11.2012, posted the matter to 20.11.2012 for further hearing. On 20.11.2012 also there was no representation for the defendant. The trial Court hearing the plaintiffs’ Counsel posted the matter to 21.11.2012 for judgment. On 21.11.2012, the trial Court passed the judgment decreeing the suit and dismissed the counter claim.
16. Nowhere, the plaintiffs conceded that no opportunity was given to the defendant. Therefore, the observations of the First Appellate Court that admittedly no opportunity was given to the defendant is apparently incorrect.
17. As already observed, even when the defendant did not turn up, the trial Court gave him opportunity and adjourned the matter several times as aforestated. But he did not avail that.
18. Order XVII Rules 1 and 2 of CPC contemplates providing opportunity only if sufficient cause is shown. But defendant did not show any sufficient cause to grant him further opportunity. Even in the appeal memo also, absolutely, no justification was furnished for the defendant’s default before the trial Court between 06.11.2012 to 17.11.2012.
19. In G.Ratna Raj’s case referred to supra relied upon by learned Counsel for the respondent, it was held that even if the written statement was filed, the evidence of the plaintiff was recorded, if defendant did not cross-examine plaintiff’s witnesses and lead his evidence, Order IX Rule 13 of CPC applies.
20. However, in this case, defendant did not file any application under Order IX Rule 13 of CPC. Even to exercise power under Order IX Rule 13 of CPC, defendant has to satisfy the Court that there was sufficient cause for him for not appearing before the Court or doing needful. Without whispering anything in the appeal memorandum before the First Appellate Court or in the appeal memo in this case for the first time, only at arguments stage, it is submitted that defendant’s Counsel was not keeping good health, therefore, he could not appear.
21. So far as power of remand under Order XLI Rule 23-A of CPC there cannot be any dispute with regard to the ratio in Municipal Corpn, Hyderabad’s case and Gopreddy’s case referred to supra.
22. Of course, in this case, the matter was not decided on preliminary issue. Therefore, Order XLI Rule 23 of CPC does not apply. It is true that to exercise power under Order XLI Rule 23 of CPC also the First Appellate Court has to first meet the findings recorded by the trial Court and if it disagrees with those findings, has to record its own findings and proceed for remanding.
23. In this case, though the First Appellate Court did not meet the findings recorded by the trial Court, remands the matter on the ground of non consideration of I.A.No.4 filed by defendant under Order XXVI Rule 9 of CPC before the trial Court.
24. It is true that in Shiv Cotex’s case and Gopreddy’s case, it was held that undue leniency should not be shown to the parties in remanding the matter, if no justification is shown. But in the case on hand, the decree of the trial Court was vitiated for non consideration of the application of the defendant under Order XXVI Rule 9 of CPC.
25. Apart from that, since the decree amounts an exparte decree and already six years have elapsed since time of passing of the decree of the trial Court, driving the defendant to another proceeding under Order IX Rule 13 of CPC only multiplies the proceedings and adds to the delay.
26. Having regard to the facts and circumstances, disposal of the suit without considering the application under Order XXVI Rule 9 of CPC, it is just and proper to confirm the judgment and decree of the First Appellate Court putting defendant to stringent terms.
27. The appeal is partly allowed on payment of costs of Rs.25,000/- payable by the defendant. The impugned judgment and decree of the First Appellate Court remanding the matter to the trial Court for fresh consideration is modified as follows:
The judgment and decree dated 21.11.2012 passed III Additional Civil Judge, Mangalore, D.K. in OS No.531/2011 is hereby set aside and the matter is remanded to the trial Court subject to deposit of costs of Rs.25,000/- by the defendant before the trial Court on or before 05.04.2019.
The trial Court shall consider the application of the defendant filed under Order XXVI Rule 9 of CPC and give him opportunity to cross-examine PW.1 and give opportunity to the plaintiffs to lead further evidence, if they so desire. The trial Court shall give opportunity to the defendant to lead his evidence.
The trial Court shall take up the matter on day-to-day basis. Defendant is not entitled to any further indulgence. If the defendant fails to do the needful on appointed dates, the trial Court shall proceed with the matter.
To avoid further delay, parties shall appear before the trial Court on 05.04.2019.
Registry shall return the LCRs forthwith.
Sd/- JUDGE KSR