Rajendra S/O Rayappa Jamadar And ... vs Revappa S/O Siddappa Dhammur
2022 Latest Caselaw 7778 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 31ST DAY OF MAY 2022

                          BEFORE

      THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


                   RSA No.200207/2017

BETWEEN:

1.     Rajendra S/o Rayappa Jamadar,
       Age: 50 years, Occ: Business,
       R/o Raju Printing Press,
       Situated in the premises of
       Gadlegaon, Opposite to
       Ajit Palastics,
       Lohar Galli, Asif Gunj Locality,
       Kalaburagi.

2.     Hanumanth S/o Rayappa Jamadar,
       Since deceased through his LRs.

2A.    Mahadevi W/o Hanamanth Jamadar,
       Age: 37 years, Occ: Household,
       R/o Mahagaon Wadi,
       Now at Mumbai.

2B.    Rohit S/o Hanamanth Jamadar,
       Age: 15 years (minor)U/g of natural
       Mother Mahadevi W/o
       Hanamanth Jamadar,
       Age:37 years,
       R/o Mahagaon Wadi,
       Now at Mumbai.
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2C.    Nikita D/o Hanamanth Jamadar,
       Age: 13 years, (Minor) U/g of natural
       Mother 2A Mahadevi W/o
       Hanamanth Jamadar,
       Age: 37 years,
       R/o Mahagaon Wadi,
       Now at Mumbai.

3.     Ravi S/o Rayappa Jamadar,
       Age: 37 years, Occ: Agriculture,
       R/o Mahagaon Wadi, Post: Mahagaon,
       Tq. & Dist: Kalaburagi.

4.     Kamalabai W/o Rayappa Jamadar,
       Age: 65 years, Occ: Agriculture,
       R/o Mahagaon Wadi,
       Post Mahagaon,
       Tq. & Dist. Kalaburagi.

                                                ... Appellants
(By Sri.Shivanand Patil, Advocate)

AND:

Revappa S/o Siddappa Dhammur,
Age: 70 years, Occ: Agriculture,
R/o H.No.1-6/446, 4th Cross,
Basaveshwar Colony,
Kalaburagi-585 102.
                                               .... Respondent

(By Sri.Ajaya Kumar A.K, Advocate for
    Sri. Veeranagouda Malipatil, Advocate)

     This Regular Second Appeal is filed under Section
100 of CPC, praying to call for and examine the records in
O.S.No.305/2009 of the I- Addl. Civil Judge (Jr.Dn.) at
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Gulbarga and R.A.No.69/2012 of ther Ist Addl. Senior Civil
Judge Kalaburagi, and allow the appeal by setting aside
the impugned judgment and decree dated 13.12.2016 in
R.A.No.69/2012 of the I Addl. Senior Civil judge,
Kalaburagi and also set aside the judgment and decree
dated 13.01.2010 in O.S.no.305/2009 of the I Addl. Civil
Judge (Jr.Dn.) at Gulbarga and dismiss the suit of the
plaintiffs in the interest of justice and equity and etc.

      This appeal coming on for Admission, this day, the
Court delivered the following:-

                        JUDGMENT

This appeal is filed by the original defendants, who

are the appellants herein, challenging the judgment and

decree dated 13.01.2010 passed by the First Additional

Civil Judge, Gulbarga ('trial Court' for short) in O.S.

No.305/2009 and confirmed by the judgment dated

13.12.2016 passed by the First Additional Senior Civil

Judge, Kalaburagi ('Appellate Court' for short) in RA

No.69/2012

2. For the sake of convenience, the parties herein

are referred as per their ranks occupied by them before

the trial Court.

3. The brief factual matrix leading to this case are

that, the plaintiff has filed a suit for specific performance of

an agreement of sale said to have been executed by the

father of the appellants herein on 09.09.2004, wherein it is

alleged that the father of the plaintiff by receiving

Rs.1,00,000/- as an earnest amount, had agreed to

execute the sale deed for a consideration of Rs.1,20,000/-

in respect of suit property. As the father of the defendants

failed to execute the sale deed, in the year 2009 the

plaintiff filed a suit for specific performance of agreement

of sale. Further, it is asserted by the plaintiff that the

defendants No.1 to 3 on 26.03.2007 have also executed

an agreement by receiving a further sum of Rs.10,000/-.

4. The notice has been served on the defendants.

But, defendants failed to appear before the trial Court and

the trial Court after appreciating the oral and documentary

evidence placed, vide judgment dated 13.01.2010 decreed

the suit by granting the relief of specific performance with

a direction to the plaintiff to pay the balance consideration

of Rs.10,000/-.

5. Thereafter, the defendants have filed a petition

under Order 9 Rule 13 of CPC in Misc.3/2011 for setting

aside ex-parte decree. Later on, they have also filed

Regular Appeal No.69/2012 on the file of the Additional

Senior Civil Judge, Kalaburagi, challenging the judgment

and decree passed by the trial Court. Since the

defendants were found prosecuting the same relief in two

different Forums, it is stated that they withdrew Misc.

No.3/2011 by filing a memo on 22.02.2013 and the said

Regular Appeal alone is being prosecuted.

6. In the Regular Appeal, the

defendants/appellants herein have also filed IA Nos. 1.& 2

for condonation of delay by moving applications under

Order 41 Rule 3(A) of CPC and Section 5 of the Limitation

Act. The learned Senior Civil Judge, after recording the

evidence, has rejected both IA Nos. 1 & 2 and

consequently dismissed the suit. Being aggrieved by the

order of dismissal, this second appeal is filed by the

appellants/defendants.

7. Learned counsel for the appellants/defendants

would contend that the First Appellate Court was not

justified in dismissing the appeal on technicalities, as right

to property is involved and he would contend that, in

view of the expression made by the Court, he was

compelled to withdraw Misc. 3/2011. Hence, he would

further contend that there are laches on the part of the

defendants in not appearing before the trial Court. But,

however, he would submit that it should not affect the

rights of the parties and he would seek for allowing the

appeal by imposing reasonable costs.

8. Per contra, the learned counsel for

respondent/plaintiff would support the order of the First

Appellate Court and further submitted that, though the

appellants were served with the notice, they did not bother

to appear before the trial Court and no proper explanation

is also offered. However, he would contend that, if the

matter is required to be disposed of on merits, the same

may be remanded by imposing heavy costs on the

appellants by fixing time frame.

9. After having heard the arguments and

perusing the records, the following substantial question of

law arises for consideration:-

             "Whether         the First Appellate Court is
      justified    in    dismissing           the   appeal   only   on
      technical grounds of delay?"

10. It is evident from the records of the trial Court

that the plaintiff/respondent herein has filed a suit for

specific performance in respect of agricultural land bearing

Sy. No.336/2A measuring 4 acres situated in Mahagaon

Village of Gulbarga Taluk. The assertion made in the plaint

discloses that the father of appellants had initially

executed an agreement of sale for a sum of Rs.1,20,000/-

on 09.09.2004 and subsequently, the appellants No.1 to 3

have received further sum of Rs.10,000/- on 26.03.2007

and only the balance consideration of Rs.10,000/- is

required to be paid. The records also disclose that the

notice was duly served on the appellants. But, they did

not appear before the Court. The suit came to be decreed

ex-parte. Before the Appellate Court, IA Nos. 1 & 2 were

filed under Order 41 Rule 3(A) of CPC and Section 5 of the

Limitation Act for condonation of delay. It is also evident

from the records that, initially a miscellaneous case was

also filed under Order 9 Rule 13 of CPC for setting aside

the ex-parte decree and subsequently the same was

withdrawn in view of filing of Regular Appeal No.69/2012.

11. The appellate Court has dismissed the appeal

on technicalities of delay. The judgment of the Appellate

Court also discloses that, PW.1 has admitted the service of

summons and he had knowledge of institution of the suit

at the initial stage itself. However, the First Appellate

Court has lost sight of the fact that the rights of the

parties pertaining to immovable property is involved.

Further, Appellant No.4 was not a party to the subsequent

agreement and certain other issues are also involved.

Looking to these facts and circumstances, it is just and

proper to give an opportunity to the appellants to

substantiate their contentions before the trial Court by

appearing and putting-forward their defence. But, at the

same time, considering their conduct, heavy costs are

required to be imposed on them. The learned counsel for

the appellants/defendants submits that reasonable costs

may be imposed, on the contrary, learned counsel for

respondent/plaintiff would insist for imposing heavy

costs. Considering that this is the third round of litigation,

in my considered opinion, the costs of Rs.10,000/- is

required to be imposed on the appellants/defendants and

the same is required to be paid to the respondent/plaintiff.

The appellate Court has erred in dismissing the appeal on

technical grounds of delay and an opportunity ought to

have been granted to defendants to put-forward their

defence. Hence, the substantial question of law is

answered in the negative.

12.. Considering the facts and circumstances of the

case, the appeal needs to be allowed and accordingly, I

proceed to pass the following:

ORDER

i) The appeal is allowed subject to payment of cost of Rs.10,000/- by the appellants/defendants to the respondent/plaintiff, within four weeks from today, The impugned judgment dated 13.01.2010 passed by the First Additional Civil Judge (Jr.Dn.), Gulbarga in OS No.305/2009 and the judgment dated 13.12.2016 in Regular Appeal No.69/2012 on the file of the First Additional Senior Civil Judge, Kalaburagi are set aside and the matter is remitted back to the trial Court ie., First Additional Civil Judge (Jr.Dn.), Gulbarga for disposal in accordance with law, after giving an opportunity to the appellants/defendants to file their written statement. Further, both the parties are at liberty to lead further evidence in the matter.

ii) The appellants/defendants shall file their written statement before the trial Court on the date of appearance itself without waiting for any fresh notice from this Court.

iii) The parties on both sides are hereby directed to appear before the trial Court ie., First Additional Civil Judge (jr.Dn.), Gulbarga on 26.06.2022 at 11.00 am, without waiting for any notice from the Court. The trial Court shall not issue notice to any of the parties and if the appellants/defendants are fail to appear and file their written statement, the trial Court shall proceed with the matter on available records.

iv) Further, the trial Court is hereby directed to dispose of the matter at the earliest and in any event within outer limit of Nine months from 27.06.2022.

Sd/-

JUDGE

KGR*