IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B V NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR R.F.A.NO.1895 OF 2018 (SP) BETWEEN:
SRI M V GOPI, AGED ABOUT 50 YEARS, S/O SRI M B VASUDEV, R/AT: “SRIVARA”, NO.31/3, IST CROSS, 2ND MAIN, 4TH BLOCK, JAYALAKSHMIPURAM, MYSORE - 570012. ... APPELLANT (BY SRI S M BABU, ADVOCATE) AND:
1. MISS T S LEELAMRUTHA, AGED ABOUT 80 YEARS, D/O T S SUBBARAJE URS.
MISS T S JAYALEELA, DEAD (UN MARRIED), 2. MISS T S GAYATHRI, AGED ABOUT 70 YEARS, D/O T S SUBBARAJE URS, BOTH RESIDENT OF: NO.371, C.H:34, J L B ROAD, CHAMARAJA MOHALLA, MYSORE - 570007.
3. SRI C JAGANNATH, AGED ABOUT 54 YEARS, S/O LATE C CHENNAIAH, NO.183, 14/15TH MAIN, 2ND CROSS, B S K IST STAGE, IST BLOCK, BANGALORE - 560050.
4. STATE BANK OF MYSORE, NOW STATE BANK OF INDIA, K M PURAM BRANCH, MYSORE - 570008. ... RESPONDENTS (BY SRI BALAJI RAGHUNATHAN, ADVOCATE FOR R1, 2, 3; R4 SERVED) **** THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.08.2018 PASSED IN O.S.NO.225/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE AND INJUNCTION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for orders, with the consent of learned counsels for both sides, it is heard finally.
2. Defendant No.1 in O.S. No.225/2014 has assailed the judgment and decree passed in the said suit by the I Additional Senior Civil Judge & CJM, Mysore dated 06.08.2018.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
4. The respondents/plaintiffs filed the suit seeking a direction to defendant No.1 (appellant herein) to reconvey the suit property to them by executing a registered Sale Deed as per Agreement dated 02.09.2008 and for the relief of permanent injunction restraining the defendant No.1 from interfering with the possession of the plaintiffs and for a direction to the defendant No.2 to hand over the original documents pertaining to the suit property. According to the plaintiffs, they are the daughters of late T S Subbaraje Urs. That the suit schedule property is the ancestral property of plaintiffs’ father and fell to his share at a family partition. He was in possession and enjoyment of the suit property during his lifetime and thereafter the plaintiff Nos.1 to 3 and their brothers entered into a partition and by partition deed dated 28.3.1980 the suit property fell to the share of the plaintiffs and T S Ramesh, one of their brothers. T S Ramesh sold his share measuring east to west 30 feet and north to south 25 feet in favour of Smt. Ningamma under a registered sale deed dated 01.10.1993 and thereafter he sold another portion measuring 12.6 x 9 feet and 8.5 x 52.3 feet in favour of Smt. Ningamma under a registered sale deed dated 14.12.1983. The remaining portion continued in his possession. Since T S Ramesh was not married and he died on 1.9.2004 the katha in respect of the remaining portion was transferred in the name of plaintiff No.3. Subsequently, the remaining property of T S Ramesh was partitioned amongst his successors namely, his brothers T S Krishne Urs and plaintiff Nos.1 to 3 under a registered partition deed dated 5.11.2005. In the said partition the suit property fell to the share of plaintiff No.3. Since then the plaintiffs are in possession and enjoyment of the said property. According to the plaintiffs, plaintiffs’ sister Smt. Leelabasappa executed a registered release deed in favour of plaintiffs on 16.1.2008 and the plaintiffs are now enjoying their ancestral property as absolute owners and in possession. The defendant No.1 approached the plaintiffs for purchase of the said property and the plaintiffs agreed to execute a sale deed in favour of defendant No.1 and on 2.9.2008 a registered sale deed was executed by the plaintiffs in favour of defendant No.1 in respect of the suit schedule property for a valuable consideration of Rs.1.68 crore. It is the case of the plaintiffs that on the same day a re-conveyance agreement was entered into and defendant No.1 agreed to reconvey the suit schedule property to the plaintiffs for a consideration of Rs.Two crores within a span of six years. The grievance of the plaintiffs is that defendant No.1 has not re-conveyed the said property and therefore they filed a suit seeking the aforesaid reliefs.
5. In response to the suit summons and court notices defendant No.1 appeared and filed his written statement contending that the suit is not maintainable. While admitting the relationship between the plaintiffs and the fact that he had purchased the suit property for a total consideration of Rs.1,64,19,000/- under a registered sale deed dated 2.9.2008, defendant No.1 denied that there was any re-conveyance deed or agreement executed by him in favour of the plaintiffs. He contended that his signatures on the alleged re-conveyance deed are forged and it is an unregistered and unstamped document and that the suit could not have been maintained on the said document. He sought for dismissal of the suit.
6. Defendant No.2 is the Bank which also filed its written statement contended that the suit as against the bank was not maintainable, that the lis was between the plaintiffs and defendant No.1. That defendant No.2 is the secured creditor for the loan advanced by creating an equitable mortgage in respect of the suit schedule property in favour of defendant No.2 and that there is a charge on the suit schedule property until the loan is cleared. Defendant No.2 bank sought for dismissal of the suit.
7. On the basis of the rival pleadings, the trial Court framed the following issues for its consideration.
1. Whether the plaintiffs prove that, the defendant No.1 agreed to re-convey the suit schedule property purchased by the defendant No.1 under the registered sale deed dated 02.09.2008 by executing the agreement of re-conveyance dated 02.09.2008?
2. Whether the plaintiffs prove that, they are ready and willing to their part of contract?
3. Whether the plaintiffs are entitled for permanent injunction as sought for ?
4. Whether the plaintiffs are entitled for mandatory injunction as against defendant Nos.2 sought for?
5. Whether the plaintiffs are entitled for specific performance of the contract?
6. What order or decree?
8. In order to substantiate their case the plaintiffs examined Srinivasa B M who is said to be the general power of attorney holder of plaintiffs as PW.1 and K S Shivaramegowda as PW.2. They produced 15 documents which were marked as EXs.P.1 to P.15. The defendants did not let in any evidence. On the basis of the evidence on record and on hearing the arguments and on considering the written arguments of the plaintiffs and defendant No.1 the trial Court answered issue Nos.1, 2 and 5 in the affirmative and issue Nos.3 and 4 in the negative and decreed the suit in part by directing the plaintiffs to deposit the balance amount in the loan account of defendant No.1 in respect of the suit schedule property being Rs.Two crore which they are liable to pay to defendant No.1 and directed defendant No.1 to execute a registered re-conveyance deed in respect of the said suit property in favour of the plaintiffs by receiving the balance amount after payment of the amount due to the defendant No.2 out of Rs.Two crore which he is entitled to receive from the plaintiffs. Being aggrieved by the judgment and decree of the trial Court defendant No.1 has preferred this appeal.
9. We have heard learned counsel for the appellant and the learned counsel for the respondent Nos.1 to 3. Respondent No.4 Bank is served and unrepresented.
10. As already stated, learned counsel for the appellant submits that the appellant does not claim any relief against the 4th respondent - Bank in this appeal. We have perused the material on record.
11. Appellants counsel contended that the judgment and decree of the trial Court is virtually an ex parte one as the appellant, being defendant No.1 in the suit, did not let in any evidence. He contended that although the plaintiffs witnesses were cross examined by him the appellant did not let in any independent evidence, although he had filed his written statement. He submitted that the reason as to why the appellant herein did not let in any evidence was on account of improper legal advise tendered by his advocate and the same has resulted in judgment and decree being passed against the appellant herein. He submitted that the plaintiffs have sought for re-conveyance based on a document which is written on a letter head, which document has not been signed by the appellant. Had the appellant an opportunity to let in his evidence, he would have demonstrated the case of the plaintiffs, but on account of improper legal advice, defendant did not step into the box to let in his independent evidence, resulting in the impugned judgment and decree which is virtually an ex parte one. He submitted that the impugned judgment and decree may be set aside and an opportunity may be given to the appellant to let in his evidence and thereafter the trial Court may dispose of the suit.
12. Per contra, learned counsel for the respondent Nos.1 to 3 vehemently supported the judgment and decree of the trial Court and contended that the appellant is simply procrastinating the matter that there was no reason as to why the appellant was prevented from letting his evidence in the matter, that improper legal advise cannot be a ground to set aside the judgment and decree. He contended that the plaintiffs have a good case on merits and the judgment and decree is in their favour and the game plan of the appellant is only to procrastinate and ensure that the plaintiffs are senior citizens. He contended that there is no merit in the appeal and that the appeal may be dismissed. If this Court is to set aside the judgment and decree of the trial Court, then the appellant may be put to terms.
13. Having heard learned counsel for the respective parties, the following points would arise for our consideration.
(1) Whether the impugned judgment and decree of the trial Court calls for any interference in this appeal?
(2) What order?
14. It is unnecessary to reiterate the facts of the case as the bone of contention between the parties in this appeal is with regard to the appellant seeking an opportunity to let in his evidence in the suit and therefore in that regard have sought for setting aside of the impugned judgment and decree. Of course, learned counsel for respondent Nos.1 to 3 has strongly opposed such a plea. We have perused the impugned judgment and decree and we find in paragraph 6 the trial Court has expressly recorded that the defendants have not let in any evidence. The reason as to why the defendants, particularly, defendant No.1 - appellant herein who is really the contesting defendant did not let in any evidence is, according to learned counsel for the appellant was because he was advised not to let in any evidence and therefore the same has resulted in a virtually an ex parte judgment and decree against the appellant herein which is being challenged in this appeal.
15. It is not necessary for us to go into the correctness or otherwise of the legal advice that was tendered by the appellant’s counsel to him before the trial Court. The fact remains that the appellant did not let in any evidence. We cannot also say that there is violation of the principles of natural justice as such. But the fact remains that the judgment has been passed only on the basis of evidence being let in by the respondent - plaintiffs and without there being any evidence let in by the defendants in the suit, particularly, defendant No.1, the appellant herein who is really the contesting defendant. Hence for the aforesaid reason we find it just and proper to remand the matter to the trial Court for giving an opportunity to the defendants, particularly to defendant No.1, the appellant herein to let in his evidence in the suit and thereafter the trial Court to dispose of the suit in accordance with law.
16. In the circumstances, point No.1 is answered in favour of the appellant. The impugned judgment and decree of the trial Court is set aside. The matter is remanded to the trial Court so as to permit the appellant herein and respondent No.4 if it so desires to let in evidence in the matter. Thereafter they shall be cross examined and after hearing the arguments of the respective parties the suit shall be disposed of in accordance with law. The suit is restored on the file of I Additional Senior Civil Judge and CJM at Mysore.
17. Since the parties, particularly the appellant and respondent Nos.1 to 3 are represented by their respective counsel they shall appear before the trial Court on 4.9.2019 without waiting for any separate notices to be issued by the said Court. The trial Court shall issue notice to the second defendant bank in the event the bank is not aware of the restoration of the suit on the file of the concerned trial Court and does not appear on 4.9.2019. In the circumstances, we also direct the appellant and respondent Nos.1 to 3 herein to take steps to intimate the bank so that the bank to also appear on the said date before the trial Court.
18. In the result, the appeal is allowed and disposed of with cost of Rs.10,000/- (Rupees Ten Thousand only) to be paid to each of the respondent Nos.1 to 3 herein. The said cost shall be paid to them on or before 4.9.2019 or on any date to be stipulated by the trial Court.
19. Since the suit is of the year 2014, it is expected that all the parties shall cooperate with the trial Court for an expeditious disposal of the suit, particularly, having regard to the fact that the respondent plaintiffs are senior citizens.
20. All contentions of both sides are kept open.
21. In view of the appeal being remanded to the trial Court the appellant is entitled to refund of the entire Court fee paid on the memorandum of appeal as per Section 64(1) of the Karnataka Court Fees and Suits Valuation Act, 1958.
22. In view of the disposal of the appeal, all pending applications stand disposed off.
Sd/- JUDGE Sd/- JUDGE ykl