IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO.2226 OF 2017 BETWEEN:
SRI. NANJEGOWDA S/O KARIGOWDA AGED ABOUT 76 YEARS RESIDENT OF BASAVAGHATTA VILLAGE, DUDDA HOBLI, HASAN TALUK & DISTRICT - 573 201.
(BY SRI. CHETHAN. B, ADVOCATE) AND:
SRI. RANGASWAMY S/O BASAVEGOWDA AGED ABOUT 66 YEARS RESIDING AT NO.SOMANAHALLI VILLAGE, DUDDA HOBLI, HASSAN TALUK - 573 201 HASSAN DISTRICT.
(BY SRI. V. R. BALARAJ, ADVOCATE) ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 1.8.2017 PASSED IN R.A.NO.72/2014 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 1.4.2014 PASSED IN OS NO.4/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARASIKERE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant and the respondent and perused the appeal papers.
2. This appeal is filed calling in question the judgment and decree dated 01.08.2017 in R.A.No.72/2014 on the file of the II Additional District and Sessions Judge, Hassan, because the appellate Court has allowed the respondent - plaintiff’s appeal setting aside the judgment and decree of the trial court dated 01.04.2014, in O.S.No.4/2011 and decreeing the respondent – plaintiff’s suit for specific performance.
3. The learned counsel for the appellant at the outset submits that the judgment before the Appellate Court is an ex-parte judgment inasmuch as the appellant was not represented. The appellant, who could have filed an application as contemplated under Order XLI Rule 21 of CPC., has filed this second appeal. The appellant’s reason for non-appearance before the appellate Court is that he had requested the learned counsel who represented him before the trial Court to appear on his behalf before the Appellate Court, but the learned counsel did not enter appearance despite the appellant informing him about the service of notice of the appeal.
4. The learned counsel for the appellant further submits that the respondent filed a suit for specific performance in O.S.No.4/2011 relying upon the agreement of sale dated 14.10.2010. The trial Court dismissed the suit holding that the respondent was neither ready nor willing to perform his part of the agreement, and that the respondent – plaintiff had failed to prove extension of the period contemplated for completion of the transaction under the sale agreement. However, in the appeal filed by the respondent – plaintiff, the first Appellate Court has accepted the endorsement relied upon by the plaintiff to contend that the period was not the essence of the contract and therefore, the period for completion of the transaction was extended vide the endorsement. The learned counsel proposes the following substantial question of law as arising for consideration?
"Whether in the facts and circumstances of the case and for the reasons offered, the judgment and decree dated 01.08.2017 in R.A.No.72/2014 could be set-aside though the appellant could have filed an application Order XLI Rule 21 of CPC before the appellate Court.
5. The appeal is admitted for consideration of the aforesaid substantial question of law, and given the facts and circumstances of the case, and the grounds urged, the appeal is taken up for final hearing with the consent of the learned counsel for the parties.
6. It is settled that when in an appeal the respondent does not appear, the appellate Court can hear the appeal ex-parte under Order XLI Rule 17(2) of CPC, and when the appeal is heard ex-parte and disposed under Order XLI Rule 17(2) of CPC, the respondent may apply to the appellate Court for re-hearing of the appeal under Order XLI Rule 21 of CPC. The provisions of Order XLI Rule 21 of CPC provide that if the respondent can explain his non-appearance with sufficient reasons, the Appellate Court shall re-hear the appeal on such terms as to costs as may be appropriate in the facts and circumstances of the case. It is undisputed that the appellant did not appear before the Appellate Court and therefore, the Appellate Court proceeded to hear the appeal under Order XLI Rule 17(2) of the CPC. The appellant had the choice of recourse to the provisions of Order XLI Rule 21 of CPC. However, the appellant has filed this appeal. The appellant has explained his non - appearance before the Appellate Court stating that the learned counsel, who represented him before the trial Court, was also instructed to appear on his behalf before the Appellate Court as well. The appellant was under the bona fide belief that the learned counsel had entered appearance and was contesting the appeal. The learned counsel for the respondent does not seriously contest this submission, and the reason offered also seems probable.
7. In the facts and circumstances of this case, and because the provisions of Order XLI Rule 21 of CPC provide for recall of an ex-parte judgment and decree, this Court is of the considered view that it would be just and reasonable to accept the reasons offered by the appellant for his non- appearance before the appellate Court and set aside the impugned judgment and restore the appeal to the file of the appellate Court for re-consideration of the appeal on merits after hearing the respondent. Therefore, the substantial question of law framed is answered accordingly and the following:
ORDER a. The appeal is allowed in part and the impugned judgment and decree in R.A.No.72/2014 dated 01.08.2017 is set aside. The appeal in R.A.No.72/2014 is restored to the file of the II Additional District and Sessions Judge, Hassan for re-consideration on merits.
b. The Appellate Court shall expedite the disposal of the appeal within a period of six months from the date of the first hearing. The appellant and the respondent shall appear before the first Appellate Court without further notice of first hearing on 19.09.2019.
c. The appellant shall pay a cost of Rs.5,000/- to the respondent on the first date of hearing before the Appellate Court.
d. The Office is directed to refund the Court fee paid to the appellant.
SD/- JUDGE nvj