Sri N Nanjappa vs Sri Byrappa
2023 Latest Caselaw 408 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 6TH DAY OF JANUARY, 2023

                            BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  R.S.A.NO.1587/2022 (MON)

BETWEEN:

SRI N. NANJAPPA,
S/O LATE N. NARAYANAPPA,
AGED ABOUT 66 YEARS,
R/AT NO.72, N.N. FARM,
GEDDALAHALLI VILLAGE,
RMV 2ND STAGE,
BENGALURU - 560094.
                                              ...APPELLANT

             (BY SRI RAJESWARA P.N., ADVOCATE)

AND:

       SRI BYRAPPA,
       SINCE DIED BY LRS.

1.     SMT. GOWRAMMA,
       W/O LATE BYRAPPA,
       AGED ABOUT 78 YEARS.

2.     SRI SRINIVASA,
       S/O LATE BYRAPPA,
       AGED ABOUT 58 YEARS.

3.     SRI BALASUBRAMANYA,
       S/O LATE BYRAPPA,
       AGED ABOUT 53 YEARS.
                                    2



4.    SRI SHANTHAKUMAR,
      S/O LATE BYRAPPA,
      AGED ABOUT 48 YEARS.

      ALL ARE R/AT NO.113/6,
      OLD MADRAS ROAD,
      OPPOSITE KARNATAKA BANK LTD.,
      ULSOOR, BENGALURU - 560058.
                                                          ...RESPONDENTS

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 18.04.2022
PASSED IN RA.No.1/2019 ON THE FILE OF THE III ADDITIONAL
DISTRICT   AND    SESSIONS   JUDGE,    CHIKKABALLAPURA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 23.11.2018 PASSED IN OS No.79/2012 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
CHICKBALLAPUR.

    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellant.

2. This appeal is filed challenging the judgment and

decree dated 18.04.2022, passed in R.A.No.1/2019, on the file

of the III Additional District and Sessions Judge,

Chikkaballapura.

3. The factual matrix of the case of the

plaintiff/appellant before the Trial Court in O.S.No.79/2012 is

that he had filed an Execution Case No.170/2006 against the

judgment-debtor one Narayanappa S/o Late Avalappa on the

basis of the judgment and decree passed in O.S.No.67/1994

filed for specific performance of contract on the file of the Senior

Civil Judge Court, Chickballapur. It is the contention of the

plaintiff before the Trial Court that in the said Execution Case

No.170/2006, the plaintiff had filed the draft sale deed on

19.07.2008 and the said sale deed was verified and found

correct by the office of the Court as per the order sheet dated

26.08.2008. On 20.03.2009, the said sale deed was prepared

and the said execution case stood posted for "Say of NBK", the

plaintiff's counsel in the said execution case. The defendant

filed an application under Order 1 Rule 10 of CPC seeking his

impleadment as 2nd JDR in the said execution case which was

rejected on 25.06.2010. From 20.03.2009, the date of filing of

the impleading application, till the date of disposal of the

impleading application, the Court could not order the execution

of the said sale deed prepared and readied on 20.03.2009 for

registration. In the meanwhile, the amendment was brought

into and the registration cost is also increased. As a result, he

had suffered loss to the tune of Rs.9,13,935/- and hence the suit

was filed for the recovery of the money.

4. The defendant in pursuance of the suit summons

appeared and filed the written statement contending that the

suit is not maintainable and suit is barred by limitation and the

relief sought for by the plaintiff in the suit cannot be granted and

the relief is not permissible under the provision of law. It is

contended that the defendant is not a party to

R.F.A.No.1062/2002 and he was not aware about the nature of

judgment and decree passed by the Hon'ble High Court. It is

further contended that the defendant filed O.S.No.460/2007 for

declaration and the said suit is still pending for consideration

before the Court. In the said suit, the defendant had filed an

application for stay of the execution proceedings and the said

application is still pending. As the plaintiff has not arraigned this

defendant as a party to the execution proceedings, the

defendant was constrained to file an application for impleading in

Execution No.170/2006. He also filed an application under Order

21 Rule 99 of CPC. For the delay in legal proceedings, this

defendant is not liable to pay any amount to the plaintiff, much

less the suit amount. Hence, contended that suit itself is not

maintainable.

5. Based on the pleadings, the Trial Court framed the

following issues:

1. Whether the plaintiff proves that, the defendant is liable to pay sum of Rs.9,13,935/- as defendant has attributed filing frivolous and vexatious impleading application thereby caused damage or loss of said sum of the plaintiff?

2. Whether the defendant is liable to pay the interest at the rate of 2% per month of the said sum?

3. Whether the suit is barred by time?

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the plaintiff is entitled for the relief as claimed?

6. What order or decree?

6. The plaintiff examined himself as P.W.1 and got

marked the documents at Exs.P.1 to 32. On the other hand, the

defendant did not examine any witnesses and also not marked

any documents. The Trial Court on considering both oral and

documentary evidence placed on record, dismissed the suit in

coming to the conclusion that there was delay on the part of the

plaintiff in getting the sale deed executed and the execution

petition was pending from 2006 and was not inclined to grant

any relief in favour of the plaintiff. Hence, an appeal was filed

by the plaintiff/appellant in R.A.No.1/2009. The Appellate Court

on re-appreciation of the material available on record, dismissed

the appeal in coming to the conclusion that the Trial Court has

not committed any error in dismissing the suit and assigned the

reasons in paragraph No.28 in coming to the conclusion that no

illegality is committed by the Trial Court in dismissing the suit.

Hence, the present appeal is filed before this Court.

7. The learned counsel for the appellant would

vehemently contend that impleading application was filed on

20.03.2009 and with regard to the payment of stamp duty is

concerned, an amendment was brought into on 01.04.2009. As

a result, the plaintiff/appellant has to suffer the payment of

stamp duty of Rs.9,13,935/- and the same is on account of the

conduct of the defendant, who is not having any interest in

respect of the issue involved between the parties. The learned

counsel would contend that the appellant is entitled for the

amount which he has paid as increased stamp duty of

Rs.9,13,935/-. Both the Courts failed to notice that the suit was

maintainable as contemplated under Section 35A(4) of CPC,

where amounts of any compensation awarded under Section 35A

as compensatory cost in respect of false and vexatious are

defence should be taken into consideration any subsequent suit

for damages or compensation in respect of in such claim of

defence and the same is ignored by the Trial Court as well as the

Appellate Court. Hence, it requires interference of this Court.

8. Having heard the learned counsel for the appellant

and also on perusal of the grounds urged in the appeal memo

and also material available on record, it is not in dispute that the

plaintiff/appellant had filed a suit for specific performance and

the same was decreed for money decree in his favour and he

had challenged the same in R.F.A. and in R.F.A. suit is decreed

for specific performance, consequently he has filed an execution

petition before the Trial Court in Execution Case No.170/2006.

Having perused the material on record, execution petition was

pending from 2006 and the impleading application was filed on

20.03.2009, almost after three years invoking Order 1 Rule 10 of

CPC for impleadment and amendment was brought into force on

01.04.2009 within a span of ten days of filing of application. The

material also discloses that draft sale deed was filed in the year

2008 and the same was approved by the Trial Court, but when

the matter was listed on 20.03.2009, an application was filed

and amendment was brought into on 01.04.2009 enhancing the

stamp duty for registration. As a result, he was forced to pay

the excess stamp duty of Rs.9,13,935/-. The Trial Court after

considering both oral and documentary evidence placed on

record, in paragraph No.14 of the judgment elaborately

discussed with regard to the judgment and decree passed for

specific performance and thereafter filing of execution petition.

The Trial Court did not grant the relief of specific performance

and alternatively ordered to pay the earnest money and the

same is questioned by the appellant/plaintiff before this Court

and this Court reversed the same and ordered for specific

performance in 2006. Immediately execution petition was filed

in 2006. The Trial Court in detail discussed in paragraph No.14

that the execution petition was pending from 2006 and on

13.03.2009 Execution Court passed an order directing the office

to prepare the sale deed and at that juncture, an application was

filed by the defendant seeking an order of impleadment and

within a span of ten days of filing of the said application, an

amendment was brought into enhancing the stamp duty and

ultimately the impleading application was dismissed on

25.06.2010 and while dismissing the application for

impleadment, no cost is imposed against the impleading

applicant. Apart from that, the Trial Court also taken note of the

date of filing of the application and also amendment and in

paragraph No.14 held that there was a delay on the part of the

plaintiff himself in getting the sale deed executed though

execution was filed in 2006 and hence came to the conclusion

that the defendant cannot be responsible to pay the difference

amount of stamp duty which has been paid subsequent upon the

amendment brought into force.

9. The Appellate Court also on re-appreciation of both

oral and documentary evidence placed on record and also

considering the material available on record, framed an issue

with regard to whether the defendant is liable to pay a sum of

Rs.9,13,935/- as defendant has attributed to filing of frivolous

and vexatious application thereby caused damage or loss of said

sum to the plaintiff. The Appellate Court in paragraph No.28 of

its judgment taken note of the application filed under Order 1

Rule 10 of CPC and I.A.No.4 filed under Order 21 Rule 99 read

with Section 151 of CPC whether it constitutes the abuse of

process of Court resulting in extra payment of stamp duty and

registration fee by the appellant. Whether the defendant is

liable to pay the said amount. The Appellate Court taking note

of recovery of deficit stamp duty and deficit registration fee of

Rs.9,13,935/- only because he had filed an application for

impleading him as a party to the execution petition cannot be a

reason for passing the order to direct the defendant to pay the

amount and there is no any illegality in filing such an application

on the part of the defendant. Only because the said application

was rejected with an observation that his remedy is against his

vendor, it cannot be said that the defendant is responsible for

payment of deficit of stamp duty and registration fee as claimed

by the plaintiff and hence dismissed the appeal.

10. Having taken note of the reasons assigned by the

Trial Court, the application was filed on 20.03.2009 and within a

span of ten days, an amendment was brought into enhancing the

stamp duty and application was disposed of on 25.06.2010.

Within a span of ten days an amendment was brought into that

is an act of the State enhancing the stamp duty and application

was also filed just prior to ten days of the said amendment.

When such being the case, there was a delay on the part of the

plaintiff in getting the sale deed executed. Even though

execution petition was filed in 2006, the plaintiff did not obtain

the sale deed and there was a delay on the part of the plaintiff in

getting the sale deed and even after filing of the draft sale deed

in 2008, after filing of the sale deed also there was a delay on

the part of the plaintiff in getting the sale deed. The First

Appellate Court on re-appreciation of the material comes to the

conclusion that filing of an application for impleading is with

regard to the right which he has claimed and the said application

was rejected and for that reason it cannot be held the defendant

is responsible to pay the difference amount of stamp duty and I

hence do not find any illegality committed by the Trial Court and

the First Appellate Court in dismissing the appeal and reasons

are given by both the Courts.

11. The learned counsel for the appellant submits that

when the application is filed on 20.03.2009 for impleading,

within three days an advancement application is filed before the

Trial Court to consider the said application since there is a

revision of stamp duty and the same is not considered and the

same was opposed by the impleading applicant. The said aspect

also has to be taken note of. No doubt, an application is filed on

20.03.2009 for impleadment and the learned counsel brought to

the notice of this Court that within three days he has filed an

application for advancement of the case, but the case was not

taken up for consideration and the same was considered after

considering the objection filed by the other side and ultimately

the application was dismissed on 25.06.2010 and the State has

taken a decision to revise the rate of stamp duty and that also

taken place within ten days of filing of such an application.

Hence, the defendant cannot be responsible for making of

payment of stamp duty and the stamp duty is paid in accordance

with law on account of enhancement of stamp duty made by the

Government for revising the stamp duty on the market value of

the property.

12. The other contention of the learned counsel for the

appellant is that under Section 35A of CPC, cost can be imposed,

if any frivolous application is filed. No doubt, an application was

filed at the instance of the defendant, but it is contended that

frivolous litigation is raised, but while rejecting the application

under Order 1 Rule 10 of CPC by the Trial Court, no such cost is

imposed in coming to the conclusion that the same is frivolous

application. When such being the material on record, only for

the reason that ten days prior to the amendment, an application

is filed for impleading, the Court cannot grant any relief of

money decree in respect of amount which was paid by the

plaintiff towards the registration of the document i.e., in respect

of stamp duty paid by the plaintiff for having registered the

document in his favour and the same is paid consequent upon

the amendment. It is also an admitted fact that the matter was

pending before the Court for longer period for the relief of

specific performance and consequent upon the disposal of the

case, an execution petition was filed and the execution petition

was pending from 2006 and amendment brought in within ten

days of an application is filed and the defendant claimed his right

in the said application and the same is adjudicated and if long

time is taken for adjudication and in the meanwhile amendment

was brought in force, there would have been force in the

argument and the application was pending for consideration and

not yet filed objections to the said application and non taking of

the matter by the Courts immediately as contended, the

defendant is not responsible for the same. I do not find any

reasons to invoke Section 100 of CPC to frame substantial

question of law when there is no perversity on the part of the

Trial Court and the Appellate Court in dismissing the suit and

applied judicial mind and passed reasoned judgment.

13. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Consequently, I.A.No.1/2022 for condonation of delay is

dismissed.

Sd/-

JUDGE

MD