Karnataka High Court
K P Mahesha vs Ramesha on 20 July, 2022
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO. 1565 OF 2018 (SP)
BETWEEN
1. K.P.MAHESHA
S/O LATE PAPANNA
AGED ABOUT 54 YEARS
OCC: AGRICULTURIST.
2. K.M.DILIPA
S/O K.P. MAHESHA
AGED ABOUT 28 YEARS
OCC: AGRICULTURIST.
BOTH ARE RESIDENTS OF
RAMA MANDIRA STREET
KAMALAPURA VILLAGE & POST
RAVANDUR HOBLI, PERIYAPATNA TALUK
MYSORE DIST - 570 016.
...APPELLANTS
(BY SRI.D.KRISHNAMOORTHY, ADVOCATE)
AND
RAMESHA
S/O K.A.DEVEGOWDA
AGED ABOUT 51 YEARS
R/O HOSAKAMANAKOPPALU VILLAGE
YELAVALAHOBLI, MYSURU TALUK
MYSURU DIST. - 570 016.
...RESPONDENT
(BY SRI. A. MADHUSUDHAN RAO, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED: 21.03.2018 PASSED IN
OS.NO.32/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, PERIYAPATNA, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE.
2
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants in O.S.No.32/2017 on
the file of the Senior Civil Judge & JMFC, Periyapatna, is
directed against the impugned judgment and decree dated
21.03.2018 passed by the trial Court whereby the said suit for
specific performance and other reliefs filed by the respondent /
plaintiff against the appellants / defendants in respect of the
suit schedule immovable property was decreed by the trial
Court in favour of the respondent against the appellants.
2. Heard learned counsel for the appellants and
learned counsel for the respondent and perused the material
on record.
3. The material on record discloses that the
respondent instituted the aforesaid suit seeking specific
performance of an alleged agreement to sell dated 27.10.2014
said to have been executed by the appellants in his favour.
Despite having entered appearance through their counsel, the
appellants did not file their written statement nor contested the
suit. The plaintiff having examined himself as PW1 and
marked exhibits P1 to P8 was not cross-examined by the
defendants who also did not adduce any oral or documentary
evidence on their behalf.
4. After hearing the plaintiff, the trial Court posted
the matter to 12.03.2018 for pronouncement of judgment. On
that day, the trial Court adjourned the matter to 15.03.2018 on
which day the appellants / defendants filed applications -
I.A.4, 5 and 6 for permission to file their written statement, for
permission to cross-examine PW1 and also for permission to
adduce oral and documentary evidence. The said
applications having been opposed by the plaintiff, the trial
Court proceeded to reject I.A.4, 5 and 6 vide order dated
21.03.2018 and immediately passed the impugned judgment
and decree, which is assailed by the appellants / defendants
in the present appeal.
5. The material on record discloses that apart from
other reasons, it is the specific contention of the appellants
that the wife of appellant No.1 was a cancer patient and was
admitted in Kidwai hospital, Bengaluru, and as such, it was not
possible for the appellants to contact their counsel in the trial
Court and give him necessary instructions to contest the suit
on their behalf. It is also contended that the inability and
omission on the part of the appellants to contest the suit on
merits by filing the written statement, cross-examining PW1
and by adducing evidence was due to bonafide reasons,
unavoidable circumstances and sufficient cause. It is further
contended that the appellants have a good defence to urge on
merits and as such, if the impugned judgment and decree is
not set aside and the matter is not remitted back to the trial
Court by providing one more opportunity to the appellants to
contest the suit on merits, they would be put irreparable injury
and hardship and justice would suffer.
6. The trial Court has rejected I.A.4, 5 and 6 on the
ground that the same were not maintainable since the suit had
already been posted for judgment. The said order passed by
the trial Court rejecting I.A.4, 5 and 6 is erroneous, illegal and
perverse being contrary to the decision of the Apex Court in
the case of K.K. Velusamy Vs. N. Palanisamy - (2011) SCC
275 wherein the Apex Court has held that despite a matter
being posted / reserved for judgment / orders, interlocutory
applications seeking reopening of the case, recalling of orders,
permission to adduce evidence and cross-examine witnesses,
etc., are maintainable and the trial Court would be entitled to
exercise its inherent powers / jurisdiction to entertain such
applications / request made by a party to the suit. Under these
circumstances, the said order dated 21.03.2018 passed by the
trial Court rejecting I.A.4, 5 and 6 deserves to be set aside.
7. The aforesaid facts and circumstances indicate
that having regard to the rival contentions and the nature of
the suit and reliefs sought for in relation to the suit schedule
immovable property, I am of the considered opinion that by
adopting a justice oriented approach, it would be just and
appropriate to set aside the impugned judgment and decree
and remit the matter back to the trial Court for reconsideration
afresh in accordance with law.
8. In the result, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree
passed in O.S.No.32/2017 dated
21.03.2018 by the Senior Civil Judge and
JMFC, Periyapatna is hereby set aside.
(iii) Order dated 21.03.2018 passed by the trial
Court rejecting I.As.4 to 6 is also hereby set
aside and consequently, the said
applications filed by the applicants are
allowed.
(iv) The matter is remitted back to the trial
Court for re-consideration afresh in
accordance with law.
(v) The trial Court is directed to receive written
statement filed by the appellants on record
and proceed further in the matter by
framing issues.
(vi) The appellants are permitted to cross-
examine PW.1 and other witnesses to be
examined by the plaintiff; needless to say
that the plaintiff would be entitled to adduce
further oral and documentary evidence.
(vii) Liberty is also reserved in favour of the
appellants to adduce oral and documentary
evidence on their behalf and the plaintiff
would be entitled to cross-examine the
defendants and their witnesses.
(viii) All rival contentions are kept open and no
opinion is expressed on the same.
(ix) Both parties undertake to appear before the
trial Court on 17.08.2022 without awaiting
further notice from the trial Court.
(x) The trial Court is directed to dispose of the
suit as expeditiously as possible and
preferably not later than six months from
17.08.2022.
Sd/-
JUDGE
BMC / SV
