IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD R.F.A. No.1809 OF 2018 (SP) BETWEEN:
SRI. KRISHNA S. PRABHU S/O. SURYA PRABHU, AGED ABOUT 54 YEARS, RESIDING AT NO.6A, 6TH FLOOR, GOLF LINK APARTMENT, CUNNINGHAM ROAD, BENGALURU – 50. ... APPELLANT (BY SRI D.R. RAVISHANKAR, ADVOCATE) AND:
B.T. KUTAPPA S/O. THAMMAIAH, AGED ABOUT 36 YEARS, P.B.NO.21, AMMATHI POST, SOUTH KODAGU – 571 201.
ALSO AT HACHINADU, KANNANGALA, AMATHI ONTIANGADI POST, VEERAJPETE, KODAGU TALUK – 571 218.
ALSO AT PROPERTY BEARING NO.1-15, OLD NO.1, NEW NO.15, BUGLE ROCK ROAD, HANUMANTHANAGARA, BENGALURU – 560 019. ... RESPONDENT (BY SRI K. MURTHY, ADVOCATE) ***** THIS R.F.A. IS FILED UNDER ORDER XLI RULE 1 READ WITH SECTION 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 31.08.2018 PASSED IN O.S.NO.8338 OF 2016 ON THE FILE OF THE LXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, CCH-62, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS R.F.A. COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The appellant herein was the plaintiff in O.S. No.8338 of 2016. The said suit was filed by him seeking the relief of specific performance of an agreement for sale dated 06.01.2015 against the defendant as well as another agreement dated 26.05.2012. In the said suit the defendant appeared and filed his written statement. But, thereafter defendant did not participate in the suit proceedings. On the basis of the rival pleadings, the issues were raised. The plaintiff examined himself. He was not cross-examined by the defendant. Defendant also did not let in any evidence, but by judgment and decree dated 31.08.2018 the LXI Addl. City Civil and Sessions Judge, Bengaluru city, dismissed the suit. Being aggrieved by the dismissal of the suit, the plaintiff has preferred this appeal.
3. We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
4. Appellant’s counsel submitted that the trial Court was not right in negativing issue Nos.1, 2 and 3, on the basis of what was pleaded in the written statement, in the absence of plaintiff being cross-examined and any independent evidence being let in by the defendant. He further contended that the trial Court was not right in answering issue No.4 in the affirmative and issue Nos.6 and 8 as against the appellant / plaintiff. He submitted that having regard to the fact that the suit schedule property is a residential house, which was to be purchased by him for a valuable consideration of Rs.1,30,00,000/- and an amount of Rs.91,00,000/- had already been paid by the plaintiff, the trial Court ought to have been circumspect and appreciated the evidence on record and decreed the suit rather than dismissing the suit on the basis of the averments made in the written statement. He contended that the approach of the trial Court is erroneous, and therefore, the judgment and decree of the trial Court ought to be set aside on that short ground alone.
5. Per contra, learned counsel for the respondent /defendant submits that the judgment and decree would not call for any interference and that even in the absence of any cross-examination of the plaintiff and any independent evidence being let in by the defendant, the plaintiff has been unsuccessful in proving his case. He submitted that there is no merit in the appeal and the appeal may be dismissed.
6. Alternatively, learned counsel for respondent submitted that in the event this Court were to remand the matter for a fresh consideration then an opportunity may be given to the respondent to cross-examine the plaintiff as well as let in independent evidence.
7. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
i. Whether the trial Court was justified in dismissing the suit on the basis of the averments made in the written statement and by answering the issues against the plaintiff?
ii. What order?
8. The detailed narration of facts and contentions above would not call for a reiteration except highlighting the fact that the defendant, after filing the written statement did not choose to participate in the suit proceeding. The plaintiff examined himself as P.W.1. Another witness was examined as P.W.2. Plaintiff produced 16 documents which were marked as Exs.P-1 to P-16. The issues raised by the trial Court have been answered against the plaintiff and in favour of the defendant even in the absence of the defendant cross-examining the plaintiff or letting in any independent evidence, on the basis of the averments made by the defendant in the written statement.
9. Learned counsel for the appellant has drawn our attention to the contents of paragraphs 15 and 16 of the impugned judgment in that regard. A reading of the same would indicate that the trial Court has come to the conclusion that the averments made in the written statement is proof of the said averments, even in the absence of there being any evidence let in on the basis of those averments by the defendant. As already noted, the defendant did not participate in the suit proceedings after the formulation of the issues. He did not choose to cross- examine the plaintiff and did not let in any evidence in support of the averments made by him in the written statement. However, the trial Court has taken the written statement on its face value and has construed the same as proof of the case of the defendant and has accordingly dismissed the suit by answering the issues against the plaintiff – appellant herein. The approach of the trial Court is erroneous and on that short ground alone the judgment and decree of the trial Court is set aside. However, in order to meet the ends of justice, the matter is remanded to the trial Court so as to enable defendant/respondent to cross-examine the plaintiff / appellant if he so chooses and to let in independent evidence, if any.
10. The appeal is disposed off in the aforesaid terms. Since the parties are represented by their respective counsel, they are directed to appear before the trial Court on 29.05.2019 or any other dated to be stipulated by the trial Court without expecting any separate notices from the said Court.
11. It is needless to observe that the trial Court would now dispose off the suit in accordance with law. In view of the remand of the matter to the trial Court for a fresh consideration, Registry is directed to refund the full amount of Court fee paid on the Memorandum of Appeal by the plaintiff in terms of Section 64(1) of the Karnataka Court-Fees and Suits Valuation Act, 1958, after due verification.
In view of disposal of the appeal, I.A. No.1 of 2018 stands disposed.
Sd/- JUDGE Sd/- JUDGE hnm