Karnataka High Court

Smt. Shalini Verma vs Sri. T V Thammanna on 9 February, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

                                            -1-
                                                        NC: 2024:KHC:5669
                                                     MFA No. 5504 of 2023




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 9TH DAY OF FEBRUARY, 2024

                                          BEFORE

                            THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO.5504 OF 2023 (CPC)

                   BETWEEN:

                   SMT. SHALINI VERMA
                   W/O LATE AMAR VERMA,
                   AGED ABOUT 54 YEARS,
                   RESIDING AT NO 1/04, II FLOOR,
                   BANNERGHATTA ROAD,
                   BANGALORE 560030

                                                          ...APPELLANT
                   (BY SRI V LAKSHMINRAYANA, SR. COUNSEL FOR
                    SIR SHAIK ISMAIL ZABIULLA, ADVOCATE)
                   AND:
Digitally signed
by SHARANYA T      SRI. T V THAMMANNA
Location: HIGH
COURT OF           S/O SRI T V VENKATARAMAPPA,
KARNATAKA          AGED ABOUT 48 YEARS,
                   RESIDING AT NO 563, OTF EXTENSION,
                   BANGARPET CIRCLE, KOLAR 563101

                                                          ...RESPONDENT
                   (BY SRI M SHIVAPRAKAS, ADVOCATE)


                       THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION
                   151 OF CPC, AGAINST THE ORDER DATED 26.07.2023
                   PASSED IN MISC.NO.209/2015 ON THE FILE OF THE XVIII
                   ADDITIONAL CITY CIVIL JUDGE, BENGALURU AND ETC.
                               -2-
                                             NC: 2024:KHC:5669
                                          MFA No. 5504 of 2023




     THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

This appeal is filed challenging the order dated

26.07.2023 passed in Misc.P.No.209/2015 filed under

Order IX Rule 13 of CPC wherein a prayer is made to set

aside the judgment and decree dated 21.02.2015 passed

in O.S.No.1576/2011.

2. The factual matrix of the case of the

respondent/plaintiff before the Trial Court in a suit filed for

the relief of specific performance praying that directing the

appellant herein to execute the registered sale deed in

respect of the property bearing Municipal Corporation

No.30, Division No.62/63/30 situated at Bannerghatta

road, Bangalore measuring 35.6 feet x 66+67/2 feet with

a right to passage as claimed in the suit. The appellant

has appeared through counsel and participated in the

proceedings by filing written statement and when the case

was set down for further evidence, at that juncture, the

NC: 2024:KHC:5669

counsel for the appellant has retired from the case without

serving a notice on the appellant.

3. It is also his contention that the said retirement

memo was filed on 18.02.2015 and on the very next day,

the argument was heard i.e., on 19.02.2015 and the

judgment was pronounced on 21.02.2015. Hence, the

appellant herein has filed Mis.P.No.209/2015 and the

same was resisted by the respondent/plaintiff herein. The

Trial Court having recorded the evidence of the appellant

herein as PW1 and got marked the documents as Ex.P1 to

P4 and comes to the conclusion that taking into note of

the conduct of the appellant herein, sufficient reason has

not been shown to invoke Order IX Rule 13 of CPC and

dismissed the petition. Being aggrieved by the said order,

the present appeal is filed.

4. The counsel for the appellant would vehemently

contend that when the counsel retired from the case, the

Trial Court fails to take note of the fact that no notice was

served on the appellant herein and without notice to the

NC: 2024:KHC:5669

appellant, proceeded to accept the retirement memo and

within three days from filing of the retirement memo,

passed the judgment. The counsel also brought to notice

of this Court the order sheet pertains to the said case

wherein it discloses that on 18.02.2015, the Trial Court

noted that postal receipt, copy of the notice and postal

envelope are produced but not mentioned anything about

the service of notice and permitted the counsel to retire

from the case. The counsel for appellant would

vehemently contend that when no opportunity was given,

the Trial Court ought to have taken note of the said fact

into consideration but failed to take note of the same and

committed an error in passing the judgment.

5. The counsel for appellant though listed out

several judgments particularly, relied upon the judgment

of the Apex Court reported in (1998) 2 SCC 206 in the

case of MALKIAT SINGH AND ANOTHER vs JOGINDER

SINGH AND OTHERS wherein the Apex Court held that

when an advocate retires from the case and if the persons

NC: 2024:KHC:5669

whom he represented are not present in the Court, notice

of the proceedings should be issued to such parties. The

counsel also relied upon the judgment of this Court

reported in ILR 2003 KAR 3868 in the case of

CHANDRABHAGABAI KRISHNANA BASAVA @

CHANDRABHAGABAI AND OTHERS vs VASANT

wherein this Court held that if an advocate retires from the

case, an opportunity should be given to the parties. The

counsel also relied upon the judgment of the Apex Court

reported in 2023 SCC ONLINE SC 997 in the case of

Y.P.LELE vs MAHARASHTRA STATE ELECTRICITY

DISTRIBUTION COMPANY LTD. AND OTHERS wherein

the Apex Court discussed with regard to that the Trial

Court ought to have issued notice to the defendants to

engage another counsel, which it did not do so and

proceeded exparte. The Trial Court committed an error in

doing so. It is further observed that having allowed the

application under Order IX Rule 13 of CPC, the High Court

ought to have refrained itself from interfering with an

order which advanced the cause of justice by affording

NC: 2024:KHC:5669

opportunities to both the parties so that the suit could be

decided on merits. The counsel relied upon these

judgments would vehemently contend that case on hand

has not been decided on merits and dismissed the petition

filed under Order IX Rule 13 of CPC. Hence, it requires

interference.

6. Per contra, learned counsel appearing for the

respondent/plaintiff would vehemently contend that

appellant herein has entered into contract on 27.02.2008

and on the date of agreement, an amount of Rs.75/- lakh

was paid. The counsel also would vehemently contend

that when the property was brought for sale, having

received an amount of Rs.75/- lakh which was paid by the

respondent, the loan was cleared and subsequently, an

amount of Rs.10/- lakh was also paid. The counsel also

brought to notice of this Court the conduct of the appellant

that gift deed was executed on 30.04.2008 i.e., within a

period of two months of having entered into agreement

and subsequently, the same was cancelled. The counsel

NC: 2024:KHC:5669

would vehemently contend that when the suit was filed,

the appellant was placed exparte even after service of

notice and voluntarily came before the Court by filing an

application under Order IX Rule 7 of CPC praying to set

aside the order of exparte and exparte order was set side

and written statement was filed on 26.09.2012, evidence

was commenced on 24.02.2012 and PW1 was not cross-

examined for a period of 2 years and ultimately, the

retirement memo was filed by the counsel and hence, the

Court has to take note of the conduct of the appellant

herein. The counsel also brought to notice of this Court

that when the appellant was examined in miscellaneous

proceedings and marked the documents at Ex.P1 to P4

and Ex.P4 was disputed stating that she has not taken any

treatment in the Jayadeva hospital and to that effect also

the documents are produced to show that no such

treatment was taken by the appellant by producing the

documents at 'R' series and the said fact is taken note of

by the Trial Court while considering the Mis.P.No.209/2015

particularly, in paragraph 10 of the order and the very

NC: 2024:KHC:5669

intention of the appellant herein to cause obstruction in

getting the judgment and decree and also the respondent

is not getting the fruit of the decree even though way back

in the year 2008 received the consideration of Rs.85/- lakh

in total out of sale consideration of Rs.1,40,00,000/-.

Hence, the question of setting aside the order passed

under Order IX Rule 13 of CPC does not arise.

7. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

available on record, it is not in dispute that the appellant

herein appeared before the Trial Court by engaging the

counsel and also it is not in dispute that though written

statement was also filed but not cross-examined the

witness PW1 and though PW1 was examined on

24.02.2012 before the Trial Court, the witness was not

cross-examined from 2012 and ultimately, the counsel

who was on record for the appellant herein retired from

the case. It is also evident from the record that when the

retirement memo was filed, no document of

NC: 2024:KHC:5669

acknowledgement is produced. It is also important to note

that the Trial Court proceeded to accept the retirement

memo without any acknowledgement. The Trial Court also

within a span of two days from filing of retirement memo

i.e., on 18.02.2015, heard the arguments and hurriedly

passed the judgment on 21.02.2015. Now, the question is

whether the Trial Court in the original suit committed an

error in passing the judgment without giving an

opportunity to the appellant when the counsel retired from

the case. The Trial Court ought to have given an

opportunity to engage the new counsel in the matter and

the same has not been done. No doubt, the Court has to

take note of the conduct of the appellant that though after

service of notice, for a period of almost 1½ years, not filed

the vakalath and placed exparte on 27.08.2011 and

vakalath was filed and exparte order was set aside on

03.07.2012 and written statement was filed on

26.09.2012. Hence, Court has to take note of the conduct

of the appellant that for a period of almost 1½ years not

cross-examined the witnesses and ultimately, the counsel

- 10 -

NC: 2024:KHC:5669

retired from the case. Hence, the Court has to take note

of the said fact into consideration while exercising the

discretion.

8. It is also brought to notice of this Court that a

document at Ex.P4 was placed before the Trial Court in

order to invoke order IX Rule 13 of CPC and the same was

disputed by the respondent stating that no such treatment

was taken and also got the endorsement from the

concerned hospital wherein the hospital also confirmed

that no such treatment was taken. Thus, it appears that a

document which placed before the Trial Court in order to

substantiate the reason for not appearing before the Court

not supports the case of the appellant. Having taken note

of the fact that the judgment was passed within two days

from the date of retirement of the advocate and the notice

was not served on the appellant and the Trial Court also

hurriedly passed the judgment and though elaborate order

has been passed by the Trial Court but the Trial Court fails

to take note of the fact that no opportunity is given to the

- 11 -

NC: 2024:KHC:5669

appellant before passing the judgment after the counsel

retires from the case and the judgments which have been

relied upon by the counsel appellant also aptly applicable

to the case on hand wherein it is held that when the

advocate retired from the case, the Court ought to have

given an opportunity by giving notice to the appellant but

in the case on hand, no such attempt is made by the Trial

Court. Hence, it appears that the matter requires

interference by this Court since the relief is sought for

specific performance. This Court has to take note of the

fact that agreement is dated 27.02.2008, that means

almost 16 years has been elapsed and having taken note

of the said fact into consideration, it is appropriate to

direct the Trial Court to dispose of the matter within a

time bound period.

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

the following:

ORDER

The appeal is allowed.

- 12 -

NC: 2024:KHC:5669

The impugned order dated 26.07.2023

passed in Misc.P.No.209/2015 is set aside and

consequently, the judgment and decree dated

21.02.2015 passed in O.S.No.1576/2011 is also

set aside on cost of Rs.1,00,000/- payable

within a period of one month from today, out of

which, Rs.75,000/- is payable to the respondent

herein and remaining amount of Rs.25,000/- is

vest with the State.

The Trial Court is directed to give an

opportunity to the appellant and dispose of the

matter within a period of six months from

11.03.2024.

The parties are directed to appear before

the Trial Court on 11.03.2024 without expecting

any notice and this order itself is notice to both

the parties.

The counsel for the respective parties are

also directed to assist the Trial Court in disposal

- 13 -

NC: 2024:KHC:5669