Karnataka High Court
Karthik Bhavikatti vs Dr S Vidya Shankar on 5 February, 2024
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RFA No. 1605 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1605 OF 2010 (MON)
BETWEEN:
KARTHIK BHAVIKATTI,
S/O V S BHAVIKATTI,
AGE: 35 YEARS,
DR. V.S BHAVIKATTI BOOK DEPOT
& DEALERS, MAIN ROAD,
GULBARGA-585 101.
...APPELLANT
(BY SRI K APPARAO & SRI K DHIRAJ KUMAR, ADVOCATES
[VC])
AND:
DR. S VIDYA SHANKAR,
S/O SHIVASHANKARAPPA,
Digitally signed AGE: 65 YEARS.
by
ANNAPURNA G SINCE DECEASED BY HIS LR'S.
Location: High a) SMT. NAGARATHNA,
Court of
Karnataka W/O LATE DR. S VIDYA SHANKAR,
AGED ABOUT 66 YEARS.
b) SMT. V PRIYADARSHINI,
D/O LATE DR. S VIDYA SHANKAR,
W/O V.S PRAMOD KUMAR,
AGED ABOUT 47 YEARS.
c) SRI V.MAHESH,
S/O LATE DR. S VIDYA SHANKAR,
AGED ABOUT 45 YEARS.
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RFA No. 1605 of 2010
d) SRI V. KARTHIK,
S/O LATE DR. S VIDYA SHANKAR,
AGED ABOUT 39 YEARS.
ALL R/O NO. 138, 7TH 'E' MAIN,
HAMPINAGAR, BENGALURU- 560 104.
...RESPONDENTS
(BY SRI B V PUTTE GOWDA, ADVOCATE FOR RESPONDENTS)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 31.07.2010 PASSED IN
O.S.5833/2006 ON THE FILE OF THE 44TH-ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT
FOR RECOVERY OF MONEY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and
decree dated 31-07-2010 passed in OS No.5833/2006 by
the learned XLIV Additional City Civil and Sessions Judge,
Bangalore.
2. Heard the learned counsel appearing for the
appellant through VC. None appear for respondents.
3. The short point that arises for consideration in
this appeal is, whether the appellant herein, who was
defendant No.1(a) before the trial Court was given an
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opportunity to put forth his contention before the trial
Court?
4. The records reveal that the plaintiff/respondent
herein (now represented by his LRs.) had filed a suit for
recovery of money against defendant- Dr. V.S. Bhavikatti,
(now represented by his son) on the ground that he had
supplied Books to the defendant through one Basavaraj
Police Patil.
5. A notice was issued to the defendant and it was
received by one Ravi. When the summons was issued, it
was noticed that the defendant had died. Therefore, the
plaintiff filed an application under Order 1 Rule 10 CPC and
when the notice of the application was issued to the legal
heirs of the defendant, one among them appeared before
the trial Court through his counsel and other legal heir of
defendant though brought on record, later he was deleted
by the trial Court. The plaint was not at all amended and
the trial Court proceeded to record the evidence. When
the matter was slated for judgment, it was found that the
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plaint was not amended and therefore on 13-7-2010, the
plaintiff was directed to carryout the amendment.
Accordingly, the amendment was carried out and
thereafter, the judgment was pronounced by the trial
Court on 31-07-2010, decreeing the suit against the
appellant herein.
6. The learned counsel appearing for the appellant
would submit that the defendant Dr. V.S. Bhavikatti had
died in the year 1992 much prior to the filing of the suit.
Therefore, it is submitted that the decree passed by the
trial court is a nonest.
7. The second prong of the argument by the
learned counsel for the appellant is that, the books
supplied by the plaintiff was never received by Dr. V.S.
Bhavikatti as he was dead at that time. It is submitted
that the documents produced by the plaintiff at Exs.P 1 to
5 show that the books were sent through VRL Lorry
Services through one Basavaraj Police Patil. The said
Basavaraj Police Patil was never examined by the plaintiff
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before the trial Court. On this count also, the suit was not
maintainable.
8. A careful perusal of the trial Court records
would reveal that the defendant Dr. V.S. Bhavikatti was
reported to be dead and therefore, an application was filed
under Order 1 Rule 10 CPC. It is not known as to why the
provisions of Order 1 Rule 10 CPC was invoked instead of
Order 22 Rule 4 of CPC. However, the plaintiff came to
know that V.S.Bhavikatti is no more in the year 1992 and
hence, the application under order 22 Rule 4 CPC is to be
invoked.
9. The provisions of Order 1 Rule 10 CPC lay down
that when the party is impleaded in a suit he should be
given an opportunity to put forth his contentions in the
form of written statement. Obviously, Dr. V. S. Bhavikatti
had never appeared before the trial Court and therefore,
there was no such written statement by Dr. V.S. Bhavikatti
when the trial Court had invoked the provisions of Order 1
Rule 10 CPC, it should have bestowed its attention on the
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provisions of Rule 10 of Order 1 CPC. After amendment of
the plaint, the copy of the plaint should have been served
upon the impleading defendant and only after affording an
opportunity, the trial Court could have proceeded with the
matter.
10. The provisions of Rule 10(4) of Order 1 of CPC
laid down as below:
" 10 (4) Where defendant added, plaint to be
amended.--Where a defendant is added, the plaint
shall, unless the Court otherwise directs, be
amended in such manner as may be necessary, and
amended copies of the summons and of the plaint
shall be served on the new defendant and, if the
Court thinks fit, on the original defendant."
11. It is pertinent to note that, once the plaint is
amended, the copies of the plaint and the summons shall
be served on the new defendant and if the Court thinks fit,
on the original defendant also. Obviously, there is no
material on record to show that after the amendment of
the plaint, the plaint copy was furnished to the appellant
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herein who was defendant No.1(a) before the trial Court.
Therefore, it is evident that the trial Court has proceeded
in the matter without affording opportunity to the
appellant herein.
12. It is not necessary for this Court to express any
opinion in respect of requirement that the said Basavaraj
Police Patil should have been examined before the trial
Court in order to establish that Dr. V.S. Bhavikatti had
received the consignment of the books sent by the plaintiff
herein. Therefore, without expressing any opinion on the
same, the matter requires to be remanded to the trial
Court with a direction to afford an opportunity to the
appellant herein to file written statement within a period of
10 days from his appearance before the trial Court and
then to proceed in the matter as required under law.
13. Since the matter is of the year 2006, an
expeditious disposal would be expected from the trial
Court. Hence, the following:
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ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree
passed by the trial Court in OS No.5833/2006 dated
31-07-2010 is hereby set aside.
(iii) Matter is remanded to the trial Court with
directions as above.
(iv) Both the parties are directed to appear
before the trial Court without requirement of any
Notice/summons on 11-03-2024.
(v) The Registry is directed to transmit the
entire Trial Court Records along with the copy of the
judgment to the trial Court immediately.
(vi) The amount deposited by the appellant
before this Court is ordered to be refunded to the
appellant.
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(vii) In view of Section 64 of the Karnataka
court Fees and Suit Valuation Act, the Court fee paid
on this appeal may be refunded to the appellant in
accordance with law.
Sd/-
JUDGE
tsn*
