Sri Sridhar I vs K R Tippeswamy
2024 Latest Caselaw 19423 Kant

Karnataka High Court

Sri Sridhar I vs K R Tippeswamy on 2 August, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                   NC: 2024:KHC:30737
                                                   MSA No. 73 of 2022




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 2ND DAY OF AUGUST, 2024

                                      BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
             MISCELLANEOUS SECOND APPEAL No. 73 OF 2022 (RO)
            BETWEEN:

                  SRI. SRIDHAR I,
                  S/O SUBBANNA,
                  AGE: 66 YEARS,
                  OCC: RETD. EMPLOYEE,
                  R/O: D. NO.2411/3, 10TH MAIN,
                  MCC 'A' BLOCK, DAVANAGERE.
                                                         ...APPELLANT
            (BY SRI. GURUDEV I. GACHCHINAMATH, ADVOCATE)

            AND:

            1.    K.R. TIPPESWAMY,
                  S/O RUDRAPPA,
                  AGE 58 YEARS, OCC: BUSINESS.

Digitally   2.    SMT. PRABHAVATHI,
signed by         W/O K.R. TIPPESWAMY,
MALATESH
KC                AGE 51 YEARS, OCC: HOUSEHOLD.
Location:   3.    K.T. MADHUSHREE,
HIGH              D/O K.R. TIPPESWAMY,
COURT OF          AGE 23 YEARS, OCC: STUDENT,
KARNATAKA
            4.    K.T. MAHANTESH,
                  S/O K.R. TIPPESWAMY,
                  AGE 21 YEARS, OCC: STUDENT

                  ALL AR R/O D NO.1076, KUMBARA PETE,
                  DAVANAGERE - 577 001.
                                                  ...RESPONDENTS
            (R1 TO R4 ARE SERVED AND UNREPRESENTED)
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                                             NC: 2024:KHC:30737
                                             MSA No. 73 of 2022




     THIS MSA IS FILED UNDER ORDER 43 RULE 1(u)
AGAINST THE JUDGMENT AND DECREE DATED 29.06.2022
PASSED IN RA.No.36/2021 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 07.04.2021 PASSED IN OS No.203/2019
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, DAVANAGERE, REMANDING BACK THE MATTER TO TRIAL
COURT FOR FRESH DISPOSAL IN ACCORDANCE WITH LAW.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:        HON'BLE MR JUSTICE V SRISHANANDA


                            ORAL JUDGMENT

Heard Sri.Gurudev I. Gachchinmatt, learned counsel

for the appellant. Respondents are served and

unrepresented.

2. The present second appeal is filed challenging

the order passed in RA No.36/2021 dated 29.06.2022 on

the file of II Addl. District and Sessions Judge, Davanagere

whereby, learned Judge in the First Appellate Court set

aside the judgment and decree passed in

O.S.No.203/2019 dated 07.04.2021 on the file of Prl.

Senior Civil Judge and CJM, Davanagere and remitted the

NC: 2024:KHC:30737

matter to the Trial Court for fresh disposal in accordance

with law.

3. Learned judge in the First Appellate Court in

paragraph Nos.20 and 21 has held as under:

"20. Further In view of IA filed by the plaintiff again case was posted for objection to IA.No.III on 09.02.2021. On that date also again plaintiff and his counsel present, but defendants remained absent. Therefore, on that date IA.No.III was allowed and also cross of PW.1 is taken as nil. Further on that date chief affidavit of PW.2 filed and accordingly, case is posted for cross of PW.2 on 12.02.2021. On that date counsel for defendants and PW.2 present and time was granted to the counsel for defendants to cross-examine PW.2 and accordingly case was posted on 25.02.2021. Again on 25.02.2021 both PW.1 and 2 were present, but counsel for defendants sought time for cross-examination and accordingly the case was posted for cross of PW.1 finally as last chance on 09.03.2021. On 09.03.2021 again counsel for defendants filed adjourned application, but case was not adjourned and kept by the case, then again case was called on the same day, but the defendants have not cross-examined them. Therefore, cross- examination of PW.1 & 2 was taken as nil and posted for defendants evidence. On 22.03.2021 again plaintiff present, but defendants absent, no representation. Therefore, the trial court has taken the evidence of defendants side as nil and heard the arguments of plaintiff's side and posted the case for defendants side arguments on 23.03.2021. On 24.03.2021 counsel for defendants prayed time and time is granted as last chance on 29.03.2021. On 29.03.2021 both counsels absent. Hence, argument of main suit on behalf of defendants is taken as advanced and the

NC: 2024:KHC:30737

liberty was reserved to the defendants to file written argument on or before 03.04.2021. Accordingly, the case was posted for judgment on 27.04.2021 and on that date judgment was pronounced. As submitted by the counsel for plaintiff, the trial court has granted sufficient opportunities to the defendants to cross-examine PW.1 & 2 and to lead their evidence and also submit their argument. However, the defendants have not utilized the said opportunities, but now they come with this appeal.

21. It is the argument of learned counsel for appellant is that due to lock-down declared by the Government in view of Covid-19 Pandemic situation appellants could not approach their counsel in time and give instructions. Moreover, they could not arrange the funds for the court fee and litigation expenses. Now the plaintiff has already filed Execution Petition No.86/2021 before the trial court and trying to get the execution of the sale deed in his favour. If no opportunity is given to the defendants, definitely the plaintiff may oust from the schedule property. Therefore they may be given an opportunity to cross-examine the plaintiff witnesses and also lead their evidence."

4. Brief facts of the case which are utmost

necessary for disposal of the appeal are as under:

A suit came to be filed by the appellant in

O.S.No.203/2019 for specific performance of contract to

agreement to sell. Same was contested by filing written

statement.

NC: 2024:KHC:30737

5. Trial Court after recording the evidence of the

plaintiff has concluded the suit as is referred to supra in

the above said paragraphs.

6. Admittedly, between January 2021 and April

2021, the pandemic Covid 19 was in its peak in its second

wave. Directions were issued by this Court time and again

as to how to conduct the cases during the pandemic

period.

7. In utter disregard to the said directions, learned

Trial Judge proceeded with the suit and disposed of the

suit by not affording fair opportunity for the defendants to

contest the matter which has been noticed by the First

appellate Court and then remitted the matter to the Trial

court for fresh disposal in accordance with law.

8. Same is challenged by the plaintiff before this

court, in this appeal.

9. Admittedly, the directions and the circulars

issued by this Court time and again with regard to conduct

NC: 2024:KHC:30737

of the cases during pandemic Covid 19, has not been

followed by learned Trial Judge.

10. The trial has come to an end within a span of

two to three months hastily without affording sufficient

opportunities for the parties. The said approach of the

learned Trial Judge was also up against all norms including

the circulars issued by this Court.

11. As such, learned Judge in the First Appellate

Court was justified in setting aside the decree and

remitted the matter to the Trial Court for fresh disposal in

accordance with law more so when the suit is for specific

performance being contested including the execution of

the suit agreement in proper manner.

12. Therefore, the matter requires to be adjudged

afresh in accordance with law in terms of the order of the

learned Judge in the First Appellate Court.

13. At this stage, Sri.Gurudev I. Gachchinmatt,

learned counsel for appellant contends that in pursuance

NC: 2024:KHC:30737

of the decree passed by the learned Trial Judge and before

appeal could be concluded, plaintiff has filed the execution

petition and sale deed is executed in favour of the plaintiff

by agency of the Court.

14. That would not be a ground to set aside the

order of the First Appellate court. If the sale deed is

already executed, same would be subject to result of the

suit after fresh adjudication inasmuch as no party can take

advantage of the fact that no interim order would be

granted or there was a delay in approaching the First

Appellate Court by the defendants more so when the

proceedings have taken place when the pandemic Covid

19 was in its peak in its second wave.

15. Therefore, no grounds are made out to interfere

with the order of the First Appellate Court.

16. Hence, the following:

NC: 2024:KHC:30737

ORDER

i. Admission declined.

ii. Appeal is dismissed.

iii. It is made clear that plaintiff and defendants

shall appear before the Trial Court on

26.08.2024 positively.

iv. Since, defendants are served and

unrepresented before this Court, if they fail to

appear on 26.08.2024 before the Trial Court,

the Trial Court shall issue Court notice to the

defendants and thereafter, proceed with the

case in accordance with law in terms of the

order of the learned Judge in the First Appellate

Court.

Sd/-

(V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 40/CT: BHK