The Karnataka High Court allowed an appeal filed u/s 96 of the CPC, against the judgment and decree dated 18.07.2022 passed in an original suit on the file of the Additional Senior Civil Judge and CJM, decreeing the suit for specific performance.
The Court observed that despite the learned counsel not furnishing the acknowledgment, the Trial Court proceeded further and decreed the suit without either issuing the Court notice to the appellants or intimating the appellants–defendants about the retirement of their counsel.
Brief Facts:
The respondent–plaintiff instituted the aforesaid suit for specific performance of the alleged Sale Agreement dated 12.04.2013 and for other reliefs interalia contending that the appellants had received an advance sale consideration of Rs.8,00,000/- out of the total sale consideration of Rs.15,00,000/- and since they did not perform their part of the contract, the respondent – plaintiff was constrained to institute the aforesaid existing suit against the appellants.
The Trial Court proceeded to pass the impugned judgment and decree in favour of the respondent – plaintiff against the appellants – defendants who are before this Court by way of the present appeal.
Contentions of the Appellants:
The Learned Counsel for the Appellants submitted that despite having directed the learned counsel to produce the proof of having served his retirement notice upon the appellants, the learned counsel neither intimated the appellants about his retirement nor proceeded further in the matter and the Trial Court committed an error in taking the further the cross-examination of PW.1 and the cross-examination of PW.2 and 3 by the appellants as nil and proceeding to decree the suit without recording the evidence of the appellants – defendants.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that there is no merits in the appeal and the same is liable to be dismissed.
Observations of the Court:
The Court noted that the Trial Court instructed the learned counsel to furnish postal acknowledgement to show that the notice issued by him was served upon the appellants - defendants; However, on 31.05.2022, the Trial Court noticed the absence of the learned counsel for the defendants.
The Court observed that despite the learned counsel not furnishing the acknowledgment, the Trial Court proceeded further and decreed the suit without either issuing the Court notice to the appellants or intimating the appellants–defendants about the retirement of their counsel. The Court said that in the absence of the postal acknowledgment evidencing service of retirement notice upon the defendants and since the learned counsel has not been permitted to retire by the Trial Court which also did not intimate appellants, nor notify them despite the learned counsel remaining absent before the Trial Court, the Trial Court erred in proceeding further in the matter in the absence of the appellants and their counsel.
The decision of the Court:
The Karnataka High Court, allowing the appeal, held that one more opportunity is to be provided in favor of the appellants by setting aside the impugned judgment and decree and remitting the matter back to the Trial Court for reconsideration afresh in accordance with law.
Case Title: T S Jagadeesh & Ors. v. Panchaksharappa
Coram: Hon’ble Justice S. R. Krishna Kumar
Case no.: REGULAR FIRST APPEAL NO. 2066 OF 2022 (SP)
Advocate for the Appellant: Mr. Nataraj G.
Advocate for the Respondent: Mr. K.N. Mahabaleshwara Rao
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