IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9th DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL No.111 of 2016 (DEC) BETWEEN :
SRI.D.P.GUPTA S/O.G.S.GUPTA AGED ABOUT 64 YEARS R/AT NO.5 & 6, MILLIA BUILDING N.R.ROAD BANGALORE – 560 002. ... APPELLANT (BY SRI.M.C.RAVIKUMAR, ADVOCATE) AND:
1. DR.M.PANDURANGA VITTAL S/O.M.RAMAMURTHY AGED ABOUT : MAJOR 2. MRS.M.SHARADA W/O.DR.PANDURANGA VITTAL AGED ABOUT : MAJOR BOTH RESPONDENT NO.1 & 2 ARE RESIDING AT NO.423/17 18TH CROSS, ADODAYANAGAR TMC – BOMMANAHALLI SARAKKI GRAMA, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK BANGALORE – 560 078.
3. SMT.K.DHANALAKSHMI W/O.S.V.HEMANTHKUMAR AGED ABOUT : MAJOR R/A NO.100, SMS LAYOUT 19TH ‘C’ MAIN ROAD 5TH PHASE, J.P.NAGAR BANGALORE – 560 078.
4. SRI.R.K.PODAR FATHER’S NAME NOT KNOWN AGED ABOUT : MAJOR R/AT NO.69, SHOP STREET BASAVANAGUDI BANGALORE – 560 004.
5. SRI.PRAMOD MURARKA S/O.ATHMARAMJI MURARKA AGED ABOUT : MAJOR R/AT NO.306, 8TH MAIN 4TH CROSS, PADMANABHANAGAR BANGALORE – 560 070. ... RESPONDENTS (BY SRI.K.SURESH, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 23.11.2015 PASSED ON AN APPLICATION FILED UNDER ORDER VII RULE 11 R/W SECTION 151 OF CODE OF CIVIL PROCEDURE IN O.S.NO.8228/2001 BY THE XXV ADDITIONAL CITY CIVIL & SESSIONS JUDGE (CCH-23), BANGALORE, INTER-ALIA, RESTORE THE SUIT AND ETC., THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT We have heard the learned counsel for the appellant and learned counsel for respondent Nos.1 and 2.
2. Appellant was the plaintiff in O.S.No.8228/2001. The said suit was filed by the appellant / plaintiff seeking the following reliefs:-
“Wherefore, the plaintiff prays that this Hon’ble Court may be pleased to pass a Judgment and decree against the defendants for:-
“1(a) Specific performance of the agreement dated 04.05.98 executed by defendant No.1 in respect of suit schedule property in favour of plaintiff and to direct the defendants to put the plaintiff in possession of the suit property along with cost and current interest.
1(b) Or in the alternative to pass a money decree against the defendant No.1 for return advance sale price of Rs.5,50,000/- paid to defendant No.1 on the date of execution of the sale agreement of the schedule property together with liquidated damages of Rs.2.5 lakh and interest at the rate of 30% p.a. on Rs.5,50,000/- as agreed upon from 04.05.98 (the date of agreement ) till the date of filing of the above suit and Rs.2,12,000/- being the amount spent by the plaintiff on the suit schedule property and current and future interest at 30% p.a. from the date of suit till the date of realization along with notice charges and cost of the suit and consequential relief.
2(a) To declare the sale deed dt.24.1.2000 registered by the 2nd defendant in favour of the 3rd defendant as null and void and unenforceable in law.
2(b) To declare the sale deed dt:17.5.2001 registered by the 3rd defendant in favour of defendant No.3 and No.4 as null and void and unenforceable in law.
2(c) To declare that the entries in the records of the sub-registrar in the records of “SARAKKI KERE” as null and void and unenforceable in law.
2(d) To declare that the plaintiff entitled is damages of Rs.33,000/- from defendant No.1, 4 & 5 from 17.05.2001 to the date of the suit.
2(e) To direct defendant No.4 and 5 to deliver the possession of the suit schedule property to the plaintiff.
2(f) To order an enquiry under Order XX of the Code of Civil Procedure against defendant No.4 and 5 in respect of fixing the mesne profit at Rs.6,000/- per month from the date of the suit, being the present market rental value of the suit schedule property and depriving the plaintiff of his lawful possession and enjoyment and causing him loss with interest at 30% and suitable damages till the date of restoring the possession of the suit schedule property to the plaintiff in accordance with law.
2(g) And to grant such other relief or reliefs that this Hon’ble Court deems fit in the facts and circumstances of the case, including the cost of the above suit, in the interest of justice and equity.”
3. The suit was valued for the purpose of Court fee and jurisdiction at Rs.6,50,000/- being the sale consideration of the suit schedule property and Court fee for Rs.42,375/- was paid on the plaint as per the valuation slip enclosed under Section 40(a) read with Article – 1, Schedule-1 of the Karnataka Court-Fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘Act’ for the sake of brevity).
4. By order dated 30.09.2013, the appellant – plaintiff was directed to pay the Court fee on the balance amount of Rs.9,43,300/- within eight days from 30.09.2013.
5. Admittedly, plaintiff did not comply with the said order, instead a memo was filed on 11.10.2013. Subsequently, an application was filed by the respondents – defendants under Order VII Rule 11 read with Section 151 of Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint. By the impugned order dated 23.11.2015, the XXV Additional City Civil and Sessions Judge, Bangalore, rejected the plaint. Being aggrieved, the appellant / plaintiff has preferred this appeal.
6. We have heard learned counsel for the appellant and learned counsel for respondent Nos.1 and 2 at length.
7. After arguing the matter for sometime, learned counsel for the appellant sought permission to withdraw this appeal with liberty to assail the order dated 30.9.2013 in accordance with law and also to seek review of the impugned order dated 23.11.2015. He further submitted that there has been compliance of the order dated 30.09.2013, albeit belatedly. The trial Court has accepted the payment of the deficit Court fee, nevertheless the impugned order has been passed.
8. Submission of the learned counsel for the appellant is placed on record.
9. Learned counsel for the respondents submits that respondents have no objection for the submission of the learned counsel for the appellant.
10. In the circumstances, we find that the interest of justice would be subserved, if the appellant is reserved liberty to assail the order dated 30.9.2013, by filing a review petition and / or in accordance with law before a superior forum. Further, liberty is also reserved to the appellant herein to seek review of the impugned order.
11. The second liberty that is granted by this Court is having regard to the fact that the impugned order is a fall out of the order dated 30.9.2013 and if there is modification in the order dated 30.9.2013 in a review petition or otherwise to be filed by the appellant herein consequently, a relook at the impugned order would become necessary.
Subject to the aforesaid liberties and observations made above, the appeal stands dismissed.
Sd/- JUDGE Sd/- JUDGE VMB