IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.1950 OF 2017 BETWEEN:
Sri Hanumanthegowda, S/o Channegowda, Aged about 53 years, Asha Chambers, Engineer, BDA Complex, Krishnakumar Park, Bengaluru -560 020. .. Appellant ( By Sri Vinayaka B., Advocate ) AND:
1. H.R.Nagesh, S/o H.K.Rajegowda, Aged about 41 years, R/o Hoovinahalli Kaval Village, Kasaba Hobli, Hassan Taluk-573 217.
2. D.C.Keshavegowda, S/o Channegowda, Aged about 59 years, DCK Traders, RMC Yard, Santhepete, Hassan-573 201.
3. Krishnaraju @ Varuna, S/o Channegwoda, Aged about 59 years, Dasarakoppalu Main Road, Kasaba Hobli, Hassan Taluk-573 201. .. Respondents (Respondents – served) This Regular First Appeal is filed under Section 96 of CPC against the judgment and decree dated 3.7.2017,passed in O.S.No.144/2011, on the file of the II Additional Senior Civil Judge and JMFC, at Hassan, partly decreeing the suit against 3rd defendant and dismissing against defendants No.1 and 2 for recovery of money.
This Regular First Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT This is 3rd defendant’s appeal. The present respondent No.1, as a plaintiff, had instituted a suit against the present appellant and present respondent Nos.2 and 3, arraigning them as defendants 3, 1 and 2 respectively, in O.S.No.144/2011, in the Court of learned II Addl.Senior Civil Judge & JMFC, Hassan, (hereinafter for brevity referred to as `trial Court’), for the relief of recovery of money of a sum of `10,38,830/- with interest thereupon from the defendants.
2. The summary of the case of the plaintiff in the trial Court was that the defendants had offered to sell the suit schedule property to the plaintiff for a total consideration of a sum of `1,31,25,000/-. In that direction, the plaintiff had paid a portion of sale consideration as an earnest money amounting to `25 lakhs to the defendants on 18.1.2010 and had agreed to pay the remaining amount of `1,06,25,000/- at the time of execution of the Sale Deed. A Sale Agreement in that regard was also executed between the parties. Later, the defendants informed their intention not to sell the same to the plaintiff and agreed to repay the advance sale consideration received by them from the plaintiff. The defendant Nos.1 and 3 repaid their share of `8,18,957/-, each totaling to a sum of `16,37,914/-, out of the total advance amount of a sum of `25 lakhs received by the defendants. The defendant No.2 has not repaid his share. Later, he sent an untenable reply to the notice sent by the plaintiff. This constrained the plaintiff to institute a suit for recovery of money. According to the plaintiff, the defendants were liable to pay him the principal amount `8,62,100/- and interest of a sum of `1,76,730/-, thus, totaling to a sum of `10,38,830/-.
3. In response to the suit summons, the defendant Nos.2 and 3 only filed their written statement. The defendant No.1 did not file his written statement.
The defendant No.2 in his written statement generally denied the entire transaction alleged by the plaintiff. He specifically contended that neither he executed the Sale Agreement dated 18.1.2010 nor received part of the consideration amount. He also contended that when the plaintiff issued the notice, he had replied to the same, seeking him to produce a copy of the agreement said to have been executed by them, however, the plaintiff failed to furnish the said document to him. The defendant No.2 has denied his liability towards the plaintiff.
The defendant No.3 in his written statement admitted that defendant Nos.1 and 3 had agreed to sell the suit schedule property to the plaintiff and had agreed to enter into an Agreement in that regard. However, he denied that they had received any advance amount on 18.1.2010. He also denied the execution of the Agreement by them on 18.1.2010. Subsequently in the very same written statement, defendant No.3 has further stated that while agreeing to sell the suit schedule property for a total consideration of `1,31,25,000/-, though the defendants had received an advance amount of `25 lakhs, but, it was the plaintiff who delayed the matter, resulting in sale of portion of the suit schedule property of 9 ½ guntas of land, each falling to the share of defendant Nos.1 and 3, to the third party purchaser in the middlemanship of plaintiff himself. It is further stated that the said property was sold for a higher amount than `25 lakhs and out of the said sale proceeds, the plaintiff had retained his advance amount of `25 lakhs and had paid the balance amount to defendant Nos.1 and 3, as such, the question of defendant Nos.1 and 3 paying any sum, much less, the suit claim does not arise. He also denied that there was any cause of action for the plaintiff to institute the suit against them.
4. Based on the pleadings of the parties, the trial Court framed the following issues :
1. Whether the plaintiff proves that the defendants had executed agreement of sale in respect of suit property agreeing to sell the same for total consideration of Rs.1,31,25,000/-
and received Rs.25,00,000/- as earnest money on 18-01-2010?
2. Whether the plaintiff proves that the defendant No.1 and 3 have repaid their share of earnest money of Rs.8,18,957/- each and the defendant No.2 has failed to repay his share of earnest money of Rs.8,62,100/-?
3. Whether the plaintiff is entitled to recover Rs.8,62,100/- from defendant No.2 with interest at the rate of 12% amounting to Rs.1,76,730/- from the defendant No.2?
4. What order or decree?
In support of his case, the plaintiff got himself examined as PW-1 and got examined one D.S.Kumar as PW-2 and got marked documents from Exs.P-1 to P-11. On behalf of the defendants, the 2nd defendant got examined himself as DW-1 and 3rd defendant was examined as DW-2, however, no documents were marked in Exhibit `D’ series.
After hearing both side, the trial Court by its judgment and decree dated 03.07.2017, answered issue No.1 partly in the affirmative, issue No.2 in the negative, issue No.3 partly in the negative and partly decreed the suit of the plaintiff, directing defendant No.3 to pay a sum of `8,62,100/- along with interest at the rate of 9% p.a. from the date of decree till its realisation to the plaintiff. The suit against defendant Nos.1 and 2 came to be dismissed. It is against the said judgment and decree, the 3rd defendant has preferred this appeal.
5. Lower Court records were called for and the same are placed before this Court.
6. In spite of service of notice, the respondent Nos.1, 2 and 3 have chosen to remain absent.
7. Heard the arguments of the learned counsel for the appellant. As observed, the respondent Nos.1, 2 and 3 have remained absent, as such, no argument was addressed from the respondents’ side.
8. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the lower Court records.
9. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
10. In view of the above, the points that arise for my consideration are:
(1) Whether the plaintiff has proved that defendant No.3 (appellant herein) was liable to pay him a sum of `8,62,100/- with interest thereupon?
(2) Whether the judgment and decree under appeal deserves any interference at the hands of this Court?
11. The summary of the plaint averment is that in the course of refunding a sum of `25 lakhs received by the defendants as a partial sale consideration (advance amount) towards the sale of suit schedule property to the plaintiff, only a sum of `16,37,914/- was repaid to the plaintiff by defendant Nos.1 and 3, as such, the balance amount of `8,62,100/- was still liable to be paid by the 2nd defendant along with interest thereupon.
The written statement filed by defendant Nos.2 and 3 are at variance. As already observed, the defendant No.2 has generally denied the entire suit transaction, whereas, defendant No.3 though initially attempted to deny the suit transaction, however, subsequently in his written statement itself has admitted the alleged agreement by the defendants to sell the suit schedule property to the plaintiff for a total sum of `1,31,25,000/- and the defendants having received the advance amount of a sum of `25 lakhs. However, he has taken a specific plea that the entire sum of `25 lakhs paid by the plaintiff was collected back by him in the sale proceeds of the portion of the land which has fallen to the share of defendant Nos.1 and 3, as such, there was not any due from the defendants to the plaintiff. Further, it is also the contention of defendant No.3 that there was no cause of action for the plaintiff to institute a suit. In this background, the evidence of the parties is required to be analysed.
12. The plaintiff as PW-1 in his examination-in- chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. He has also got produced and marked the Sale Agreement dated 18.1.2010 at Ex.P-1, RTC at Ex.P-2, Mutation Register Extract at Ex.P-3, copy of the legal notice dated 14.12.2010, sent on his behalf to the defendants at Ex.P-4, a reply to his notice and dated 31.12.2010 by defendant No.2 at Ex.P-5, four postal receipts at Exs.P-6 to P-9 and two postal acknowledgements at Exs.P-10 and P-11.
In his cross-examination, PW-1 has given more details as to when and under what circumstances the agreement to sell was entered into. He has stated that defendant Nos.1 and 3 have sold their share of the property on their own, as such, he does not know what they did with the sale proceeds received by them. He has also stated that defendant No.2 has sold 4 guntas of land gone to his share to a third party and retained remaining 6 guntas of land with him. Except eliciting more details regarding the alleged Agreement of Sale dated 18.1.2010, nothing could be elicited in the cross-examination of PW-1 which would weaken the case of the plaintiff regarding the Sale Agreement dated 18.1.2010 entered into between the parties.
Even though the defendant No.3 has taken a specific contention in his written statement that, after dropping the performance of the Agreement of Sale dated 18.1.2010, it was at the lead of the plaintiff himself, the properties falling to the share of defendant Nos.1 and 3 were sold to one Sri Satyanarayana and his daughter-in-law for a higher amount than `25 lakhs and that, out of the said sale consideration, the plaintiff had retained `25 lakhs as refund of his advance amount and given back the balance amount to defendant Nos.1 and 3, but, no suggestion in that regard was made to PW-1 in his cross-examination from the defendants’ side. As such, the specific plea of defendant No.3 with respect to the alleged set-off said to have been made by the plaintiff has remained confined to his written statement without seeing any light in the cross-examination of PW-1.
13. One Sri D.S.Kumar, who was examined as PW-2, has supported the case of the plaintiff stating that he too has signed in the Sale Agreement dated 18.1.2010, wherein, the defendants had agreed to sell the suit schedule property to the plaintiff for a sum of `1,31,25,000/- and in that connection, had received an advance amount of a sum of `25 lakhs in cash from the plaintiff.
This witness in his cross-examination has given some more details as to when and under what circumstance the Sale Agreement was entered into between the parties on 18.1.2010. He further stated that, at a later date, when he enquired with the plaintiff, he came to know that defendants had not repaid the advance amount in its entirety. Thus, the evidence of PW-2 to the effect that the Agreement of Sale was entered into between the plaintiff and the defendants on 18.1.2010 could not be shaken even in his cross-examination also.
In support of his contention, the plaintiff as PW-1 got marked and produced the Agreement of Sale, which is at Ex.P-1. A reading of the said document would go to show that the defendants, as vendors, had agreed to sell the suit schedule property to the plaintiff for a total consideration of a sum of `1,31,25,000/-, out of which, the defendants have acknowledged the receipt of `25 lakhs in cash. The said agreement records other terms of the agreement as to when the balance amount was to be paid by the plaintiff and also about the execution of the Sale Deed by the defendants. The said document has not been specifically denied in the cross- examination of PW-1 by both side. It is also worth to be noticed that it is only defendant No.2 who has specifically denied the alleged Agreement of Sale dated 18.1.2010, whereas, the present appellant as defendant No.3 in the trial Court itself in his written statement has stated about the agreement and also about the defendants receiving `25 lakhs as an advance amount.
14. The defendant No.2, as DW-1, in his examination in chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his written statement. He stated that, he has not executed any Sale Agreement in favour of the plaintiff. However, he has stated that, at the request of his brothers, he has signed a document which they had entered into with the plaintiff, as such, he had signed the said document. He stated that he has not received any sale consideration under the said agreement. However, in the very same examination-in-chief, he has also stated that the plaintiff and his brothers had negotiated the subject matter of the property agreed between them and the third party and they had sold jointly the said property, about which, the plaintiff had mentioned in the plaint and that he had received his part of the liability. However, it is to be noticed that the said contention of alleged set-off had not been taken by the said defendant in his written statement.
DW-1 was subjected to a detailed cross- examination, wherein he has denied the suggestions made from the plaintiff’s side on the lines of the plaint averments. However, he has stated in his cross- examination that he has not initiated any action against defendant Nos.1 and 3 about they alleged to have obtained his signature in the Sale Agreement and also about they receiving the amount from the plaintiff.
15. The defendant No.3 was examined as DW-2, who also in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his written statement. In his examination- in-chief, he has specifically and clearly admitted about the Sale Agreement which the defendants had entered into with the plaintiff on 18.1.2010, agreeing to sell the suit schedule property to the plaintiff for a sum of `1,31,25,000/- and also about they (defendants) receiving `25 lakhs as an advance amount. However, the witness has stated that the plaintiff did not keep up the promise made in the agreement. He also reiterated his written statement averment that, subsequently the plaintiff standing as a middleman, getting sold the property falling to the share of defendant Nos.1 and 3 to a total extent of 19 guntas to one Sri Satyanarayana and out of the sale consideration, he retaining `25 lakhs which he had paid under the agreement dated 18.1.2010 and returning the balance amount to defendant Nos.1 and 3. Therefore, according to him the question of the defendants being liable to the plaintiff for any sum would not arise.
In the cross-examination, DW-3 has admitted a suggestion as true that the Agreement dated 18.1.2010 also involves the property that had gone to the share of defendant No.2. To a suggestion made to him that on 18.1.2010, as per the Agreement, all the three defendants together have received a sum of `25 lakhs, the witness though denied the same, but, volunteered to say that he received `14 lakhs and defendant No.1 received `11 lakhs. In that way, the witness apart from admitting the Sale Agreement dated 18.1.2010 in his written statement, reiterated the same even in his evidence and further acknowledged the receipt of partial sale consideration even in his cross-examination also. The same witness further stated that he has not returned to the plaintiff `14 lakhs which he had received, however, the property under Sale of Agreement was sold to the person as suggested by the plaintiff. A specific suggestion was made to the witness that it was only defendant No.1 and defendant No.3 who had refunded their share of the liability towards the plaintiff, to this the witness has stated that they are not liable to pay any amount to the plaintiff.
16. In the light of the above pleading and evidence of the parties, the first argument of the learned counsel for the appellant was that, even though it is held that there was an Agreement dated 18.1.2010 between the parties, under which, the defendants had received a total sum of `25 lakhs, even according to the plaintiff, the defendant Nos.1 and 3 have refunded to him their share of liability, as such, the plaintiff’s suit was only aimed for recovery of the alleged balance amount from defendant No.2. That being the case, the trial Court decreeing the suit as against defendant No.3 was uncalled and unwarranted. He further submitted that the trial Court before fixing the liability as against defendant No.3, has not framed any issues in that regard, as such, defendant No.3 had no opportunity to oppose his alleged liability towards the plaintiff. Submitting that the Court cannot grant a relief what has not been prayed, that too, as against a particular person against whom no relief has been sought for, learned counsel relied upon two judgments of Hon’ble Apex Court, which would be referred to at the appropriate stage hereafterwards.
17. As already observed above, the present appeal is filed by defendant No.3 alone challenging the decree that has been passed against him. Admittedly, the trial Court has dismissed the suit as against defendant Nos.1 and 2, but, has decreed it as against defendant No.3 alone. The said defendant No.3, as has been observed at more than one places above, has admitted the sale transaction dated 18.1.2010 with the plaintiff and also about the receipt of an advance amount of `25 lakhs by them from the plaintiff. Even the suit of the plaintiff is also not that the entire advance amount of `25 lakhs is due to him, but, his suit claim is only with respect to the alleged principal amount of `8,62,100/- as the liability of defendant No.2 for the principal amount and an interest of `1,76,730/- thereupon. The plaintiff in his pleading itself has clearly and specifically stated that out of `25 lakhs payable by defendant Nos.1, 2 and 3 to him, the defendant Nos.1 and 3 have already paid to him a sum of `16,97,314/-. As such, the person liable to pay him is only defendant No.2. The prayer made in the plaint which is in Kannada language when translated into English, reads as below :
“ (a) An amount of `8,62,100/- paid by the plaintiff to the 2nd defendant as per the Sale Agreement dated 18.1.2010 along with interest at the rate of 12% thereupon, which is a sum of `1,76,730/- and in total, amounting to `10,38,830/- as payable to the plaintiff and other reliefs which in the circumstances of the case appears to the Court to be granted, by the 2nd defendant to the plaintiff, decree be made.”
Thus, though the suit was filed against all the three defendants, who incidentally are brothers, but, the suit relief is aimed and claimed as against only defendant No.2 and not against defendant No.3 (the present appellant). It is in that regard, issue No.3 gains some importance, wherein the trial Court has framed the issue as to whether the plaintiff is entitled to recover a sum of `8,62,100/- from defendant No.2 with interest at the rate of 12% amounting to `1,76,730/-? The framing of the said issue itself clearly go to show that the trial Court also has noticed that the relief claimed by the plaintiff was not as against all the three defendants, though they were parties to the suit, but, the prayer made is only as against defendant No.2. As such, the entire evidence of the parties was lead on the line of the issues framed where no specific issue regarding alleged liability of defendant No.3 could have been gathered or inferred.
Interestingly, even the plaintiff as PW-1 in his evidence also has reiterated that his suit is only for recovery of money of advance amount together with interest thereupon from defendant No.2. Thus, PW-1 apart from his plaint averment, has also reiterated that his prayer is confined to defendant No.2 only.
The very same witness even in his cross- examination also has reiterated that his suit is for recovery of the amount paid by him along with interest thereupon from the 2nd defendant Sri Krishnaraju. Thus, at more than one place, both in his pleading and in his evidence, the plaintiff has stated and reiterated that his claim is only as against defendant No.2 and his relief is also prayed as against defendant No.2.
In addition to the above, even in the cross- examination of DW-1 also from the plaintiff’s side, a suggestion was made that it was DW-1 alone who is liable to the suit claim. Though DW-1 has not admitted the said suggestion, however, by making the said suggestion to DW-1, who is none else than defendant No.2, the plaintiff once again reiterated that it is defendant No.2 and defendant No.2 alone, against whom the claim is made and confined by the plaintiff, but, not as against other defendants.
In the cross-examination of DW-2, at Page-5, a suggestion was made to the witness from the plaintiff’s side that out of `25 lakhs advance amount received by all the three defendants together, it is only the defendants 1 and 3 who have refunded their amount.
By making the said suggestion even to defendant No.3 in his cross-examination as DW-2, the plaintiff reiterated that defendant Nos.1 and 3 have already cleared their liability towards the plaintiff, but, it was only the defendant No.2 who was required to pay his alleged due amount.
Thus, the above being the evidence, the trial Court has dismissed the suit as against defendant Nos.1 and 2, for the reason that the defendant No.1 did not appear and contest the matter and without attributing any specific reason it discharged defendant No.2. It decreed the suit as against defendant No.3 by observing that said defendant No.3 since has admitted that out of the advance amount, he had retained `14 lakhs, the Court can grant the relief though not been specifically prayed, under Order VII Rule 7 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC’). To support its reasoning, the trial Court has relied upon a judgment in Srinivas Ram Kumar –vs- Mahabir Prasad and others, reported in AIR 1951 SC 177. It also extracted a para of the said judgment of the Hon’ble Apex Court as below :
“ A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant’s own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.”
Quoting the above paragraph and mentioning that Order VII Rule 7 of CPC gives some discretion to the Court to mould the relief, the trial Court proceeded to decree the suit as against defendant No.3 though there was no specific prayer made against him or no relief was sought against him by the plaintiff.
A reading of the above referred judgment in Srinivas Ram Kumar’s case (supra), would go to show that in the said case, the question involved was with respect to the specific performance of an agreement. Though the prayer sought for was only for the specific performance of the contract, but, not for refund of the earnest money, still, observing that the plaintiff in the circumstances of case was entitled for the refund of the earnest money, the suit was decreed in his favour. However, in the above quoted portion of the judgment, it is clearly observed by the Hon’ble Apex Court that, rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet.
18. In the instant case, as observed above, the very plaint was for the relief only as against defendant No.2 therein. No relief was specifically prayed as against defendant No.3 (the present appellant). Thus, primarily no relief was sought for against defendant No.3.
Secondly, no issue was framed as to the liability of defendant No.3 by the trial Court, as such, defendant No.3 had no opportunity to meet his alleged liability towards the plaintiff. Though defendant No.3 had taken a plea of set-off, however, the same was not to be considered as an opportunity given to defendant No.3 to put forth his case in full and to oppose his alleged liability to the plaintiff. As already observed above, issue No.3 also confined only to the plaintiff’s claim against defendant No.2 for the suit claim, but, not the liability of the other defendants in the suit.
19. In Om Prakash and others –vs- Ram Kumar and others, reported in {(1991) 1 SCC 441}, which case was relied upon by the learned counsel for the appellant in his argument, the Hon’ble Apex Court at Para-4 of its judgment while discussing the scope of Order VII Rule 5 and Rule 7 of CPC was pleased to observe that, a party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute.
20. In the other judgment relied upon by the learned counsel for the appellant in Shehla Burney (Dr.) and others –vs- Syed Ali Mossa Raza (Dead) By LRs. and others , reported in {(2011) 6 SCC 529}, the Hon’ble Apex Court once again inter alia has considered the scope of Order VII Rule 5 and Rule 7 of CPC in Paras-15, 16, 17 and 20 of its judgment. The observation of the Hon’ble Apex Court in the discussions made in those paragraphs are that the submission of the learned counsel for the appellant in the case before Their Lordships that there was no prayer for decree of possession either in the original plaint or amended plaint against original defendant No.2 stood proved. In a case where prayer is not made against a particular defendant, no relief can be possibly granted against him. Considering the facts and circumstances of the case before it, the Hon’ble Apex Court further observed in Para-20 that, following the said principles in the facts of the case before it, held that no relief having been claimed against defendant No.2 who was predecessor- in-title of the present appellant, no relief could have been granted against the present appellant. With the said observation, the Hon’ble Apex Court was pleased to allow the appeal before it.
21. In the instant case also, as has been observed, neither the pleading nor the evidence of the plaintiff would at any stretch of imagination was made against defendant No.3, who is the present appellant herein.
The entire pleading, as well the evidence of plaintiff was only seeking a relief against defendant No.2 and the prayer made by him would also confine to defendant No.2 alone. The facts and circumstance of the case also, except showing that the defendant No.3 had admitted the execution of an Agreement of Sale dated 18.1.2010 by all the three defendants in favour of the plaintiff, would lead to no inference that defendant No.3 was liable to the plaintiff in any manner, much less, to the suit claim. The very plaintiff himself both in his pleading, as well in his evidence has clearly and categorically stated that defendant Nos.1 and 3 have discharged their liability towards him and it was only defendant No.2 who was liable to pay the suit claim.
22. That being the case, the trial Court without appreciating the materials placed before it and the evidence, both oral and documentary, has jumped to a conclusion that, merely because defendant No.3 appeared to have retained a major portion of the advance amount, he was liable to pay the suit claim. Since the same being neither the plaintiff’s plaint averment nor even his evidence, the trial Court has exceeded its power vested under Order VII Rule 5 and Rule 7 of CPC and decreed the suit only as against defendant No.3, against whom no relief was claimed. As such, the said finding of the trial Court now having proved to be erroneous, the same deserves to be set aside and the suit of the plaintiff, if any, against defendant No.3 deserves to be dismissed.
23. Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed. The judgment and decree dated 03.07.2017, passed by the learned II Addl.Senior Civil Judge & J.M.F.C., Hassan, in O.S.No.144/2011, is set aside confining to the present appellant (defendant No.3). The suit of the plaintiff as against the present appellant (defendant No.3) in O.S.No.144/2011 stands dismissed.
Draw modified decree accordingly.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
In view of disposal of the main appeal, IA.No.1/2018 does not survive for consideration.
Sd/- JUDGE bk/