IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH RFA.NO.275/2008 BETWEEN:
SRI. INDER SINGH CHOWDHARY AGED 55 YEARS S/O. BHANWARLAL CHOWDHARY NO.87/1, 1ST FLOOR 3RD MAIN ROAD, N.T. PET BENGALURU-560 002. ... APPELLANT (BY SRI. N.P. KALLESHGOWDA, ADV.) AND:
1. SRI. SURYA PRAKASH AGED 56 YEARS S/O. HARISINGH BHANDARI NO.C-51, KASHIPURI BHILWARA, RAJASTHAN STATE INDIA-311 001.
2. SMT. SUDHA WARDIA AGED 52 YEARS D/O. HARISINGH BHANDARI W/O. SUSHIL KUMAR WARDIA NO.87, ASHOKNAGAR UDAIPUR RAJASTHAN STATE-313 001. ... RESPONDENTS (RESPONDENTS ARE SERVED - UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.11.2007 PASSED IN O.S.NO.5893/2000 ON THE FILE OF THE XIV ADDL. CITY CIVIL JUDGE, BANGALORE (CCH NO.28), DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR HEARING AND HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree of dismissal of the suit dated 07.11.2007 passed in O.S.No.5893/2000 on the file of the XIV Additional City Civil Judge, Bengaluru (CCH No.28).
2. The Brief facts of the case are:
It is the case of the plaintiff that Smt. Ghishibai Choudhary, the grand mother of the defendants was suffering from various diseases. The plaintiff is the relative of Smt. Ghishibai. The plaintiff has paid the amounts on the following dates:
A sum of Rs.15,000/- on 03.09.1997 by cash, A sum of Rs.10,000/- on 07.09.1997 by cash, A sum of Rs.7,000/- on 23.10.1997 through D.D., A sum of Rs.5,000/ on 13.02.1998 through D.D., A sum of Rs.5,000/- on 05.10.1998 - through D.D., A sum of Rs.10,000/- on 06.02.2000 by cash to Smt. Ghishibai as she was not able to bear the hospital expenses and other expenses. Smt. Ghishibai died on 15.4.2000. During her life time, she had not returned the above said amount of Rs.52,000/-. After the death of Smt. Ghishibai, defendants have taken all the gold and silver articles of Smt. Ghishibai. Inspite of repeated demands and legal notice, the defendants failed to pay the above said amount. Hence, the defendants are due in a sum of Rs.52,000/- towards principal and interest thereon at the rate of 18% p.a. i.e., sum of Rs.21,720/-. Thus, the defendants are due to pay a sum of Rs.73,720/-.
3. The defendants No.1 and 2 after service of summons appeared through counsel and filed written statement admitting the relationship that Smt. Ghishibai is the maternal grand mother of the defendants. It is contended that the plaintiff is also a grand son of Smt.Ghishibai. The plaintiff has suppressed the same in the plaint. The plaintiff’s father is the adopted son of Smt.Ghishibai. Though the defendants have denied that the plaintiff has paid a sum of Rs.52,000/-, they have admitted that he has paid only Rs.17,000/-. It was the pious duty of the plaintiff to serve his grand mother. The plaintiff’s father and mother have failed to take care of Smt.Ghishibai. Therefore, Ghishibai was residing with her daughter Smt.Roopa Kanwar since 1960. Smt.Roopa Kanwar was looking after the expenses of Smt. Ghishibai. The plaintiff has not paid the sum of Rs.17,000/- as loan. The plaintiff’s father Sri Bhanwarlalji Chowdhary is in possession of movable and immovable property left by Smt.Ghishibai at Bhilwara village, Badnore District. The defendants are not in possession of gold and silver ornaments of Smt.Ghishibai. Smt. Ghishibai left behind her only 4 Chudies. They were sold for the funeral expenses of Smt.Ghishibai. The notice issued by plaintiff was suitably replied. There is no privity of contract between the plaintiff and Ghishibai. Therefore, the plaintiff is not entitled to the suit claim. The other contentions raised by the defendants are that this Court has no jurisdiction to entertain and try the suit.
4. Based on the pleadings, the Court below has framed the following issues:
i) Does plaintiff prove that he had in all paid Rs.52,000/- to deceased Smt.Ghishibai as narrated in para 3 of plaint ?
ii) Did the defendants get the gold and silver of deceased Smt.Ghishibai as alleged in para 4 of plaint ?
iii) Is the plaintiff entitled for interest on the said amount at 18% p.a.
iv) Has this Court no territorial jurisdiction to try the suit ?
v) What decree or order ?
5. The plaintiff in order to prove the case examined two witnesses as P.Ws. 1 and 2 and got marked exhibits P.1 to P.8. Defendants have not led any evidence.
6. The Court below after hearing both sides dismissed the suit answering issue No.4 in the negative as the Court has no jurisdiction to try the suit and dismissed the same, in spite of answering Issue No.1 as affirmative. Being aggrieved by the judgment of dismissal of the suit, the present appeal is filed.
7. In the appeal, it is contended that the Court below has committed an error in dismissing the suit and the very findings of the trial court is arbitrary, capricious and contrary to the pleadings and evidence.
The Court below has not considered or discussed the important aspects. It has misread and misinterpreted the oral and documentary evidence giving undue importance to matters which were irrelevant without considering the burden of proof and the rival contentions urged by the parties. The Court below erred in holding that the defendants did not get the gold and silver items of deceased and also erroneously came to the conclusion that the plaintiff is not entitled to interest. The plaintiff specifically pleaded that late Ghishibai was ailing. When she wanted money for her treatment, he has given the amount as loan transaction and not otherwise. The amount was paid in Bengaluru city and the same was through representative of the deceased and the amount was repayable at Bengaluru city and the transaction took place in Bengaluru city. Whether the amount was also payable merely because the deceased was at Rajasthan at the time of her death and that she was taking treatment at Rajasthan did not oust the jurisdiction as Ghishibai was also permanent resident of Bengaluru city. The cause of action arose in Bengaluru city. The Court below has committed error in answering Issue No.4 in the negative as the Court has no jurisdiction. Hence the judgment and decree of the Court below requires to be set aside.
8. Learned counsel for the appellant also contended that the Court below in spite of answering issue No.1 as affirmative, did not consider the case of the plaintiff and erroneously dismissed the suit on the ground that there was no jurisdiction and hence it requires interference of this Court.
9. Respondents in spite of service did not choose to appear and contest the appeal.
10. Having heard the arguments, the point that arise for consideration is:
Whether the Court below has committed an error in dismissing the suit of the appellant and the judgment of the Court below requires interference of this Court ?
The main ground urged in the appeal is that the Court below even though answered issue No.1 as affirmative erroneously dismissed the suit. The Court below has committed an error in holding that the Court has no jurisdiction to try the suit. Hence the judgment requires interference of this Court.
11. In order to consider the grounds urged in the appeal, this Court has to consider the material on record and peruse the plaint averments. It is the case of the plaintiff that he has paid the amount of Rs.52,000/- in all to the deceased Smt.Ghishibai. In support of the said contention, the plaintiff examined himself as PW.1 reiterating the averment made in the plaint for having paid the amount on different dates. In the cross-examination, he admitted the relationship between the Ghishibai and the plaintiff claiming that Ghishibai is his grand father’s brother’s wife. It is the case of the defendants that the plaintiff’s father was adopted by Ghishibai. PW.1 says that he does not know whether he was adopted son or not. In the evidence, it is elicited that Smt.Ghishibai was staying with her daughter in Bhilwara village till her death. He further admits that he does not know whether she lived with his father or not. He further admits that he has no document to show that he has paid the amount of Rs.25,000/- on 03.09.1997 and 07.09.1997. It is also his claim that an amount of Rs.10,000/- was paid on 16.02.2000. It is elicited in the cross examination that he has paid the amount for medical treatment and no document is produced to show that the said amount was advanced as loan. He categorically admits that some amount was given for medical expenses. He further states that he does not know whether the defendants have inherited any property of Ghishibai or not and also does not know about any documents to show that what quantity of jewels Smt.Ghishibai possessed.
12. The plaintiff also examined one witness as PW.2. In his evidence, he states that he gave money of Rs.25,000/- to Smt.Ghishibai and the said amount was given to him by PW.1 to handover the amount to Ghishibai. He admits that he made the payment at Bhilwara village, Rajasthan. He also admits in the cross examination that he had an amount of Rs.10,000/- on 07.09.1997 and he gave that amount out of his pocket and collected Rs.10,000/- from the plaintiff at Bengaluru i.e, on 27.09.1997. The defendants have not led in any evidence.
13. On perusal of the evidence of PWs.1 and 2, it is clear that the amount was paid at Bhilwara village, Rajasthan and also it is elicited from the mouth of PW.1 that deceased Ghishibai lived with her daughter till her death at Rajasthan and also he does not know whether she lived with his parents or not. Hence, it is clear that the transaction had taken place at Bhilwara, Rajasthan and Ghishibai was residing at Rajasthan. Hence the contention of the learned counsel for the appellant that Ghishibai was residing at Bengaluru and the amount was paid at Bengaluru cannot be accepted. Therefore, I do not find any reason to find fault with the Court below in answering issue No.4 as the Court below has no jurisdiction.
14. The other contention of the learned counsel for the appellant that though the Court answered issue No.1 as affirmative erroneously dismissed the suit. First of all the Court has no jurisdiction to try the suit as the transaction had taken place at Rajasthan and it is not the case of the plaintiff that he has paid the amount in Bengaluru and also letters which were addressed to Ghishibai clearly shows that the amount was paid on different dates for treatment. Even in the letters also, it is mentioned that if she was in need of money for medical treatment, he will send the same. Hence it is clear that it is not a loan transaction and the amount was given for medical treatment of Ghishibai who is the relative of the plaintiff and he also categorically admitted that there was no proof with regard to the fact that it is a loan transaction.
15. On perusal of the judgment of the trial Court, the trial Court while arriving at the conclusion with regard to issue No.1 though held that the plaintiff paid the amount to Ghishibai and the same was gratuitous payment for treatment, it held that the plaintiff is not entitled to recover the said amount. However, issue No.1 was answered in the affirmative. It has to be noted that the defendants only admitted the payment of Rs.17,000/- which was sent by DD and letters are also marked with regard to sending of the money.
16. Having considered the findings of the trial Court, it has given the finding that the amount of Rs.52,000/- has been paid and in the cross examination of PW.2, the defendants have also not elicited anything from the mouth of PW.2 that he did not pay the amount to Ghishibai except the suggestion that he has not paid any amount to Ghishibai. Hence I do not find any error committed by the Court below in coming to the conclusion that an amount of Rs.52,000/- has been paid.
17. When there is no jurisdiction to the Court below to try the matter, the question of decreeing the suit does not arise. Hence I do not find any reason to interfere with the order of the trial Court in coming to the conclusion that there is no Jurisdiction since admittedly all transactions have taken place at Bhilwara – Rajasthan.
18. In view of the discussions made above, I pass the following order:
ORDER The appeal is dismissed.
Sd/- JUDGE akc