Sri M V Giriraj vs Sri A.S. Nagaraj
2023 Latest Caselaw 3883 Kant

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                                                     NC: 2023:KHC:22786
                                                         CRP No. 553 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 3RD DAY OF JULY, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                           CIVIL REVISION PETITION NO. 553 OF 2018

                   BETWEEN:

                   1.    SRI M.V. GIRIRAJ
                         S/O SARAF M. VENKATACHALA SHETTY
                         AGED ABOUT 70 YEARS
                         DEALER IN ELECTRICAL MATERIALS
                         RESIDING AT 1ST CROSS
                         5TH BLOCK, J.C.R. EXTENSION
                         CHITRADURGA-577 501
                                                               ...PETITIONER

                               (BY SRI. B.M. SIDDAPPA, ADVOCATE)
                   AND:

                   1.    SRI A.S. NAGARAJ
                         S/O LATE A. SUBBARAYA
Digitally signed         AGEDA BOUT 68 YEARS
by SHARANYA T            RETIRED JUDICIAL EMPLOYEE
Location: HIGH           RESIDING AT VENKATESHWARA NILAYA
COURT OF                 (UPSTAIRS) HOUSE NO.2,
KARNATAKA
                         NAIDU STREET
                         CHIKKAMAGALUR-577 101
                                                              ...RESPONDENT

                             (BY SRI. GIRISH B. BALADARE.,ADVOCATE)

                        THIS CRP IS FILED UNDER SECTION 115 OF CPC,
                   AGAINST THE JUDGMENT AND DECREE DATED 05.10.2018
                   PASSED IN MA NO.5/2016 ON THE FILE OF THE I
                   ADDL.DISTRICT JUDGE, CHIKKAMAGALURU ALLOWING THE
                   APPEAL AND SETTING ASIDE THE ORDER DATED 04.04.2016
                   PASSED ON PRELIMINARY ISSUES IN O.S.NO.125/2013 ON
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                                              NC: 2023:KHC:22786
                                                    CRP No. 553 of 2018




THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM.,
CHIKKAMAGALURU AND REMANDING THE BACK SUIT TO THE
TRIAL COURT FOR FRESH DISPOSAL.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                                   ORDER

This matter is listed for admission. Heard the learned

counsel appearing for the petitioner/defendant and the learned

counsel appearing for the respondent/plaintiff.

2. In this revision petition, the petitioner has

challenged the order dated 05.10.2018 passed in

M.A.No.5/2016 on the file of I Additional District Judge at

Chikkamagaluru.

3. The suit in O.S.No.125/2013 was filed before the

Principal Senior Civil Judge & CJM at Chikkamagaluru for

recovery of earnest money which was paid in terms of the sale

agreement. The defendant appeared and filed the written

statement denying the pecuniary jurisdiction of the Court. The

Trial Court having taken note of the said contentions answered

the preliminary issue as the Court has no jurisdiction. The same

was challenged in M.A.No.5/2016 before I Additional District

Judge at Chikkamagaluru. The First Appellate Court came to

NC: 2023:KHC:22786 CRP No. 553 of 2018

the conclusion that the Trial Court has committed an error in

coming to the conclusion that it had no territorial jurisdiction to

try the suit and ought not to have answered the same in

preliminary issue. The matter involves both mixed question of

law and fact and the order passed by the Trial Court is

perverse, hence, it requires interference. Therefore, set aside

the order of the Trial Court and the suit is remanded back to

the Trial Court for fresh disposal in accordance with law. Being

aggrieved by the said order, the present revision petition is

filed by the defendant before this Court.

4. The main contention of the learned counsel

appearing for the petitioner before this Court is that the First

Appellate Court wrongly construed the jurisdiction question

along with the other issues as per Order 16 Rule 2 of CPC

though order 16 Rule 2 of CPC is referred to with regard to

summoning and attendance of witnesses. An application was

filed before the Trial Court to treat issue No.5 as preliminary

issue. After hearing the parties only an order has been passed

on issue No.5. The First Appellate Court has committed an error

in coming to the conclusion that the suit is entirely based on

agreement of sale said to have been executed on 01.11.2009

NC: 2023:KHC:22786 CRP No. 553 of 2018

and the suit is only for recovery of the amount is incorrect. For

the recovery of the amount the Court has to place reliance on

the agreement and conditions incorporated therein, and then

the question arises where the agreement was executed.

Admittedly, the agreement was executed at Chitradurga on

02.11.2009. Mere notarizing the agreement on 07.11.2009 by

the Notary at Chikkamagaluru does not amount to execution of

agreement at Chikkamagaluru. The First Appellate Court has

lost sight of this fact. This is clear from the agreement. Under

these circumstances, where the cause of action would arise has

to be considered. Hence, the First Appellate Court has

committed an error in coming to the conclusion that the

transactions were taken place at Chikkamagaluru. The First

Appellate Court grossly erred in holding that the decision in the

case of Harshal Chiman Lal Modi v. D.L.F. Universal Ltd.,

reported in 2005 AIR SCW 5369, not applicable to the facts of

the case. The very approach of the First Appellate Court is

erroneous. The document itself is clearly discloses that the

transaction was taken place at Chitradurga. The only contention

is that the agreement was executed at Chikkamagaluru and the

payment was made at Chikkamagaluru and also the parties

NC: 2023:KHC:22786 CRP No. 553 of 2018

have signed the documents at Chikkamagaluru. The mentioning

made in the document clearly goes to show that the agreement

was executed at Chitradurga. Even the stamp paper purchased

also at Chitradurga on 07.10.2009. The suit schedule property

situated at Chitradurga, the plaintiff also signed at Chitradurga

on 02.11.2009, witnesses also are from Chitradurga and they

also signed at Chitradurga. Under these circumstances, the

First Appellate Court ought not to have answered the point as

affirmative. Hence, it requires interference.

5. Per contra, the learned counsel appearing for the

respondent would vehemently contend that in paragraph No.2

of the plaint, it is stated that the written agreement of sale was

executed on 01.11.2009, never stated in the plaint the

agreement was executed before the Notary at Chikkamagaluru

and the parties have signed before the Notary at

Chikkamagaluru on 07.11.2009. The learned counsel also

would submit that the suit is not for the relief of specific

performance in respect of the property, which is situated within

Chitradurga, but only payment was made at Chikkamagaluru

and also the document was signed at Chikkamagaluru and

notarization was also made at Chikkamagaluru. Though the

NC: 2023:KHC:22786 CRP No. 553 of 2018

document mentions the date as 02.11.2009 and the same was

not signed on 02.11.2009, the same was signed on 07.11.2009

at Chikkamagaluru and the document was also notarized in the

presence of the parties. The suit is only for recovery and the

cause of action was arisen in Chikkamagaluru only. The suit is

not for enforcement of agreement and the agreement was

cancelled. Hence, the suit is filed for recovery of the earnest

money. The First Appellate Court has not committed any error.

The learned counsel also brought to the notice of this Court

Section 20 of CPC with regard to the jurisdiction for recovery of

money.

6. Having heard the respective counsel and also on

perusal of the material available on record, the learned counsel

for the petitioner has placed the document of sale agreement

dated 02.11.2009, no doubt, the document refers the date as

02.11.2009 and the place is mentioned as Chitradurga. But on

perusal of the document it was notarized at Chikkamagaluru on

07.11.2009. Hence, it is clear that while notarizing the

document, the parties were present at Chikkamagaluru even

though the date is mentioned as 02.11.2009 at Chitradurga.

Apart from that, the plaint copy is also very clear that the

NC: 2023:KHC:22786 CRP No. 553 of 2018

payment was made at Chikkamagaluru Bank and the same is

stated in the plaint itself. On perusal of the cause of action, it

is mentioned that the cause of action arose at Chikkamagaluru.

The First Appellate Court also on considering the material on

record while answering the points which have been formulated

in paragraph No.9, taken note of Order 16, Rule 2 of CPC,

Court is bound to pronounce judgment on all the issues and

also came to the conclusion that the Court is empowered to try

the said issue as preliminary issue and also taken note of the

issue involved between the parties is both mixed question of

fact and law. It is the claim of the plaintiff that Ex.P1-Sale

Agreement came into existence at Chikkamagaluru. On the

other hand, the contention of the defendant is that, it was

executed at Chitradurga but the document is notarized at

Chikkamagaluru. Therefore, come to the conclusion that there

is a mixed question of law and fact. Hence, it is not a pure

question of law as contemplated under Order 16 Rule 2(2) of

CPC.

7. It is important to note that under Section 20 of

CPC, when the suit is filed for recovery of money and not in

respect of enforcement of agreement in respect of the property

NC: 2023:KHC:22786 CRP No. 553 of 2018

which is the subject matter of the agreement. Section 20(c) of

CPC is very clear that the cause of action, wholly or in part

arises. Hence, taking into note of the same, the First Appellate

Court came to the conclusion that after cancellation of the

agreement, the plaintiff has sought for recovery of the money

paid under Ex.P1-agreement. Therefore, the jurisdiction had to

be decided not under Section 16 of CPC, but on the other hand

under Section 20(c) of CPC. But the Trial Court has also lost

sight of the same. Hence, the First Appellate Court came to the

conclusion that the Trial Court has committed an error in

passing such an order and also came to the conclusion that the

pecuniary jurisdiction is at Chikkamagaluru. The Trial Court

could not have decided the jurisdiction under Section 16 of

CPC.

8. Having considered the reasoning given by the

Appellate Court, it is very clear that there are five issues. Out

of five issues only the preliminary issue is treated as issue

No.5. When the suit is filed for recovery of money, the cause of

action arose at Chikkamagaluru and the payments are also

made at Chikkamagaluru, which is narrated in the plaint itself,

the payments are made in the Bank of Chikkamagaluru and the

NC: 2023:KHC:22786 CRP No. 553 of 2018

documents came to be notarized on execution of the document

on 07.11.2009 itself, I do not find any error committed by the

First Appellate Court in setting aside the order passed by the

Trial Court and having taken note of Section 20(c) of CPC,

rightly come to the conclusion that the cause of action arose at

Chikkamagaluru. Hence, the suit is maintainable and I do not

find any merit in the revision petition.

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

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

CP