IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY R.F.A.No.2020 OF 2006 BETWEEN:
1. Smt. Usha Beemasena W/o. U.R.Bheemasena.
2. Sri. U.R.Bheemasena S/o. Sri. U.R.Ramachar Both are Residing at 202, Usha Kiran Apartment, No.4/12, Cresent Road, Bangalore-560 001.
(By Sri. J.Aravind Babu, a/w.
Sri. A.Y.N. Gupta, Advocates) AND:
1. Mr. K.C.Ponnappa Retired Chairman, New India Assurance Co. Ltd., United India Insurance Co., Ltd., No.2/12, II nd Floor, “Usha Kiran Apartments”, Crecent Road, Bangalore-560 001.
…Appellants 2. United India Insurance Co. Ltd., No.25, Shankaranarayana Building, M.G.Road, Bangalore-560 001 Represented by its Assistant General Manager.
3. New India Assurance Co. Ltd., Unity Building, Annexe, Mission Road-560 001. Represented by its regional Manager.
4. Sri. R. Masand, No.4/12, 2nd Floor, Deleted vide Usha Kiran Apartments, order dated:03.11.2010 Crecent Road, Bangalore-560 001.
…Respondents (By Sri. P.B.Raju, Advocate for R-2; R-1 and R-3 - served;
R-4 is deleted vide order dated:03.11.2010) **** This Regular First Appeal is filed under Section 96 R/w Order XLI of Code of Civil Procedure, 1908, against the judgment and decree dated 30.06.2006 passed in O.S.No.4921/1997 on the file of the XIV Additional City Civil Judge, Bangalore, (CCH No.28), decreeing the suit for recovery of money.
This Regular First Appeal coming on for Hearing, this day, the Court delivered the following:
J U D G M E N T It is a defendants’ appeal. The present respondent Nos.1 to 3 as plaintiffs had instituted a suit against the present appellants and present respondent No.4 (deleted vide order dated 03-11-2010 in this appeal) in O.S.No.4921/1997 in the Court of the learned XIV Additional City Civil Judge at Bangalore (CCH-28), (hereinafter for brevity referred to as the “Trial Court”), seeking for recovery of a sum of `27,476-47 with interest there upon at the rate of `18% per annum from the date of suit till its realisation.
2. The summary of the case of the plaintiffs in the Court below was that, the first defendant was the owner of land comprised in property bearing No.4/12, Crescent Road, Bangalore-560001. The second defendant is the husband of the first defendant and also her Power of Attorney holder. The second defendant as a General Power of Attorney holder of the first defendant entered into an agreement with the second plaintiff whereunder, an apartment building was put up in the suit schedule premises. As per the agreement, the plaintiff purchased seven flats and the defendants retained one flat for them. It was also agreed between the parties regarding the common maintenance amount which has to be shared between the parties.
It was the contention of the plaintiffs that, both the parties had agreed that a common maintenance and services such as watch and ward, water supply, electricity supply, common areas like stairways, etc. cleaning of common areas stairways common verandah, etc. has to be undertaken and the amount has to be shared proportionately. The plaintiff No.1 was entrusted with the duties for the collection of the proportionate amount from the owners of the building. Accordingly, the security agencies were paid the regular amount for which they were entitled to, but the defendants did not share their liability towards common area maintenance charges and did not pay the amount due to the plaintiffs. Therefore, the plaintiffs were constrained to file a suit for recovery of money from the defendants.
3. After service of suit summons, the defendant Nos.1 and 2 appeared through their counsel and filed their Written Statement. They denied the plaint averments and they contended that there was no agreement entered into between the parties regarding the common maintenance of services, viz. watch and ward, cleaning etc. However, they admitted that they had agreed to pay electricity charges and water charges only. They denied that they were in any amount due to the plaintiffs much less the suit claim.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
1] Was the 1st plaintiff entrusted with the function of arriving at common expenses incurred every month, collection of proportionate amount from the respective flat owners, as alleged in para-8 of plaint?
2] Was the 1st defendant due `27,476.47 towards common area maintenance charges for the period from July 1994 till the end of April 1997 ?
3] Are the plaintiffs entitled to collect interest on the said amount at 18% per annum?
4] what decree or order ?”
5. In his support, the plaintiff No.1 got himself examined as PW-1 and got marked documents from Exhibits P-1 to P-13. No evidence was led from the defendants’ side.
6. The Trial Court by its impugned judgment and decree dated 30-06-2006, decreed the suit of the plaintiffs, directing the defendant Nos.1 and 2 to pay a sum of `27,476-47 to the plaintiff No.1. It is challenging the said judgment and decree of the Trial Court, the defendants have preferred the present appeal.
7. The Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned counsel for appellants, learned counsel for the respondents and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
9. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
10. Learned counsel for the appellants/ defendants in his arguments submitted that the plaintiffs have utterly failed to prove that there was any agreement with regard to maintenance charges between the parties.
However, the learned counsel gave more emphasis on the point of his argument that the defendants were not given a reasonable opportunity to put forth their case. He submitted that the Trial Court denied and deprived the opportunity to the defendants to lead their evidence and has proceeded in a very hasty manner to pass the impugned judgment. As such, the appeal deserves to be allowed and the matter at the most would be eligible for its remand with a direction to the Trial Court to give an opportunity to the defendants to cross-examine PW-1 and to lead the evidence from defendants’ side.
11. Per contra, learned counsel for the respondent Nos.1 to 3/plaintiffs in his argument submitted that the Trial Court has given sufficient opportunity to the defendants, but the same was not made use of by the defendants, as such, the judgment under appeal does not warrant any interference at the hands of this Court.
12. In the light of the arguments addressed by the learned counsels for the parties and after perusal of the materials placed before this Court, the only point that arises for my consideration is:
“ Whether the judgment and decree under appeal deserves to be set aside and the matter deserves to be remanded ?”
A perusal of the order sheet would go to show that on 17-07-2000, PW-1 was examined and the matter was adjourned to 27-07-2000, on which date, PW-1 was further examined and Exhibits from P-1 to P-13 were got marked. On the very same day, noticing that the defendants were placed ex-parte, the cross-examination of PW-1 was taken as ‘nil’. However, subsequently, defendants got the said order recalled by filing necessary application and also filed their Written Statement. As such, on 03-08-2002, the Trial Court proceeded to frame the issues. After framing of the issues when the matter was posted for evidence from the plaintiffs’ side, on 30-07-2003, the Trial Court had taken that there was no further Examination-in-chief from the plaintiffs’ side. As such, the matter was posted for cross-examination of PW-1 on 18-01-2003. Thereafter on several dates of hearing, the matter was simply adjourned without recording the proceedings that have taken place. Ultimately, the matter was again taken up on 08-12-2005 for cross-examination of PW-1. However, on the said date, due to the absence of the witness, cross-examination could not proceed. In the same manner, because of the absence of PW-1 on the subsequent dates of hearing, the matter could not be proceeded. On 06-06-2006, once again PW-1 remained absent. Observing that PW-1 was absent and sufficient time was granted, the Trial Court took that he had no oral evidence, as such, the case was posted for the defendants’ evidence.
13. In such a situation, when PW-1 has not tendered himself for his cross-examination, the Trial Court ought not to have retained his evidence and relied upon the same and proceeded to record cross-
examination of defendants’ side. It should have discarded the evidence of PW-1 who had failed to tender himself for his cross-examination, on the other hand, the Trial Court retaining his evidence as it is, posted the matter for the evidence of defendants’ side and listed it on 15-06-2006. On the said day, the Court observed that the defendants were absent and hence, it took that the defendants had no oral evidence. The request made by the defendants’ counsel was also rejected and the matter was posted for arguments. Without further delay, on 30-06-2006, the Trial Court proceeded to pronounce the impugned judgment.
14. The above chronological events clearly go to show that, even though PW-1 himself was absent and did not tender himself for cross-examination, the Trial court has relied upon the evidence of the said PW-1 who did not tender himself for cross-examination. Further, without giving even a single adjournment, the Trial Court refused the request for time made by the learned counsel for the defendants and took the evidence of defendants’ side as ‘nil’ and proceeded to hear the arguments in the matter and in a hurried manner pronounced the impugned judgment. As such, the proceedings of the order sheet shows that the Trial Court has proceeded in a very hasty manner in disposing the suit. In the said process, it has not only denied but also deprived the defendants of their reasonable entitlement to cross-examine PW-1 and to lead evidence from their side. As such, the defendants were denied the reasonable opportunities to put forth their case which is against the principles of natural justice.
15. Thus, without going into the merits of the case, suffice it to say that, since the Trial Court has relied upon the evidence of PW-1, who did not tender himself for cross-examination and denied a minimum reasonable opportunity to the defendants to lead their evidence, the impugned judgment and decree passed by the Trial Court deserves to be set aside and the matter requires to be remanded with a direction to the Trial Court to give reasonable opportunity to the defendants to cross-examine PW-1 and to lead the evidence from defendants’ side. Needless to say that, in case the defendants lead evidence from their side, the plaintiffs will naturally have an opportunity to cross-examine the defendants’ witnesses.
Accordingly, I proceed to pass the following:
O R D E R [i] The appeal is allowed in part;
[ii] The judgment and decree dated 30-06-2006 passed by the Court of the learned XIV Additional City Civil Judge at Bangalore (CCH.No.28), in O.S.No.4921/ 1997, is hereby set aside;
[iii] The matter is remanded to the Trial Court with a direction to it to give an opportunity to the defendants to cross- examine PW-1 and an opportunity to the defendants 1 and 2 to lead their evidence and thereafter to dispose of the suit in accordance with law;
[iv] Needless to say that, in case the defendants lead their evidence in the matter, the plaintiffs therein shall have an opportunity to cross-examine the said witness also.
[v] Considering the fact that the Original Suit is of the year 1997, as such, one of the old suits, and to avoid any further delay in disposal of the Original Suit, both parties are hereby directed to appear before the Trial Court for the above purposes, without anticipating any fresh notice or summons from it, on 26-08-2019 at 11:00 a.m. and to co-operate in disposal of the suit by the Trial Court on its merit, at the earliest point of time;
The amount, if any, deposited by the appellants in this matter under order dated 14-01-2011 of this Court, be refunded to the appellants.
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
The eligibility for refund of Court Fee, if any, to the appellants, would be as per law.
Sd/- JUDGE BMV*