Karnataka High Court
Smt. Latha vs Sri. Bandhi Ningegowda on 4 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 7688 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7688 OF 2016 (CPC)
BETWEEN:
1. SMT. LATHA,
W/O. LATE CHELUVARAJU B,
AGED ABOUT 45 YEARS.
2. DARSHAN,
S/O. LATE CHELUVARAJU B,
AGED ABOUT 14 YEARS,
SINCE MINOR REPRESENTED BY HIS
NATURAL GUARDIAN AND MOTHER,
APPELLANT NO.1 SMT.LATHA.
BOTH ARE RESIDING AT
HOSAHUNDI VILLAGE,
SRI. GANAPATHI SACHIDANANDA
ASHRAMA POST, KASABA HOBLI,
Digitally signed
by SHARANYA T MYSURU-570 028.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI C. SHANKAR REDDY, ADVOCATE)
AND:
1. SRI. BANDHI NINGEGOWDA,
S/O. SIDDALINGAIAH,
AGED ABOUT 60 YEARS,
R/AT NO.154/1, DEVAIAHNA HUNDI,
2ND STAGE, SRIRAMPURAM,
MYSURU-570 008.
2. SMT. SAVITHA,
W/O. LATE B. RAMESH,
AGED ABOUT 42 YEARS.
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MFA No. 7688 of 2016
3. MASTER SRINIVAS,
W/O. LATE B. RAMESH,
AGED ABOUT 24 YEARS.
4. KUM. BINDHU,
D/O. LATE B. RAMESH,
AGED ABOUT 20 YEARS.
5. KUM. SINDHU,
D/O. LATE B. RAMESH,
AGED ABOUT 17 YEARS.
SINCE RESPONDENT NO.5 IS MINOR,
REPRESENTED BY THEIR NATURAL GUARDIAN
AND MOTHER RESPONDENT NO.2.
RESPONDENTS NO.2 TO 5 ARE
RESIDING AT HOSAHUNDI VILLAGE,
KASABA HOBLI, MYSURU-570 028.
...RESPONDENTS
(BY SRI V.M.PRASAD, ADVOCATE FOR R1;
SRI V.R. BALARAJ, ADVOCATE FOR R4 AND R5;
R2 AND R3 ARE SERVED, BUT UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF
CPC, AGAINST THE ORDER DATED 24.02.2016 PASSED IN
MIS.NO.77/2010 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, MYSURU, DISMISSING THE PETITION FILED
UNDER ORDER 9 RULE 13 OF CPC.
THIS APPEAL, 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 appellants, the learned counsel for
respondent No.1 and the learned counsel for the respondent
Nos.4 and 5.
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2 This appeal is filed against the order dated
24.02.2016 passed in Misc.No.77/2010, on the file of the
Principal Senior civil Judge, Mysuru, dismissing the petition
filed under Order 9 Rule 13 read with Section 151 of CPC
praying the Court to set aside the judgment and decree
passed in O.S.No.150/2007 dated 27.02.2009.
3. The factual matrix of the case of the
plaintiff/respondent before the Trial Court is that the plaintiff
had filed O.S.No.150/2007 seeking the relief of specific
performance of contract contending that there was a sale
agreement executed by the defendants and their mother
agreeing to sell the property for a valuable sale consideration
of Rs.15 lakhs dated 10.04.2006. On the date of the
agreement, he received an earnest money of Rs.2 lakhs and
an additional amount of Rs.2 lakh on 16.05.2006 and on
28.06.2006, another Rs.1 lakh was received, in total Rs.5
lakhs was received. Thereafter, they did not come forward to
execute the sale deed and hence the suit was filed for the
relief of specific performance.
4. The Trial Court issued the notice against
defendant Nos.1 and 2. The suit summons was served
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against defendant No.2 and the notice was not served against
defendant No.1 and the same was returned with an
endorsement that defendant No.2 did not disclose the address
of defendant No.1. The defendant No.2 engaged a counsel
and the very same counsel had filed a memo of undertaking
before the Trial Court on behalf of defendant No.1 also. The
defendant No.1 though appeared through the counsel, did not
choose to file any written statement and though defendant
No.1 undertook to appear before the Court, did not file the
vakalath through advocate and also not contested the matter.
Thereafter, the Trial Court proceeded to record the evidence
of P.W.1 and two more witnesses as P.W.2 and P.W.3 and
marked the documents at Exs.P.1 to 10 and closed the
evidence. The defendants throughout remained absent
inspite of defendant No.2 represented through the counsel
and undertaken to appear on behalf of defendant No.1 also.
The Trial Court having taken note of the material on record,
framed the points as to whether the defendants being the
absolute owners of the suit property have entered into
agreement with the plaintiff executed the agreement of sale
by receiving Rs.5 lakhs and whether the plaintiff is entitled for
the relief of specific performance of contract. The Trial Court
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granted the relief and directed the defendants to execute the
sale deed in terms of the judgment dated 27.02.2009.
5. Being aggrieved by the said judgment,
Misc.No.77/2010 is filed by the defendant No.1 before the
very same Court praying to set aside the judgment and
decree dated 27.02.2009 passed in O.S.No.150/2007 on the
ground that there was no proper service on defendant No.1
and by that time, defendant No.1 was no more and hence the
Misc. petition was filed by his wife and son. The Trial Court
having considered the pleadings and objections filed by the
parties, formulated the points as to whether the petitioners
prove that there were sufficient grounds for the non-
appearance of the petitioner/defendant No.1 in
O.S.No.150/2007. The petitioner No.1 examined herself as
P.W.1 and got marked the documents at Exs.P.1 to 4. The
respondent No.1 examined himself as R.W.1, but not marked
any documents on his behalf.
6. The Trial Court having considered the material on
record, comes to the conclusion that the petitioner appeared
through an advocate and the advocate, who appeared on
behalf of his brother Ramesh had filed the memo of
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appearance before the Trial Court on the very same day and
the same shows that the petitioners were aware of the
proceedings. The address of both the defendants is shown as
Hosahundi Village. In this petition, the petitioners have given
the same address as Hosahundi Village. In the cross-
examination, P.W.1 has stated that there was no ill-will
between her husband and the defendant No.2. She has
stated that the final rites of her husband were done in the
house of defendant No.2. Having taken note of the said
material on record, the Trial Court comes to the conclusion
that it is the burden on the petitioners to prove that they were
not aware of the proceedings. The Trial Court comes to the
conclusion that even though they were aware of the same,
they did not choose to participate in the proceedings and also
taken note of the fact that the suit was for specific
performance of contract contending that the petitioner No.1,
defendant No.2 and their mother had jointly executed the
agreement of sale. Hence, the Trial Court comes to the
conclusion that it cannot be believed that the petitioners were
not aware of the proceedings and dismissed the same.
Hence, the present appeal is filed before this Court.
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7. The learned counsel for the appellants would
vehemently contend that no notice has been served on the
husband of petitioner No.1 and father of petitioner No.2. The
Trial Court committed an error in granting the relief of specific
performance of contract. The Trial Court ought to have
restricted itself to examine as to whether there is sufficient
cause to condone the delay and whether the requirements of
Order 9 Rule 13 of CPC have been complied with or not and
instead of examining this points, the Trial Court has
proceeded to examine the case of the parties on merits. The
very approach of the Trial Court is erroneous and when the
reasons are given before the Trial Court that no such notice
was served on the husband of petitioner No.1 and also the
father of petitioner No.2, the same ought to have been
considered by the Trial Court. The Trial Court failed to take
note of the fact that R.W.1 had no personal knowledge and he
was minor at the time of filing the suit and ought to have
drawn adverse inference against respondent No.3 for not
stepping into the witness box and defending her statement of
objections and further admissions that no notice were sent to
the matrimonial place of residence, that too when the
knowledge of the marriage of the appellant was available to
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the respondent Nos.1 to 3. The learned counsel would
vehemently contend that there is no any service of summons
against the defendants and the same has not been considered
by the Trial Court.
8. When the matter was heard earlier, this Court had
directed both the learned counsel to produce the certified
copy of the summons issued against Cheluvaraju and
accordingly the counsel has filed the memo along with the
certified copy of the summons in O.S.No.150/2007 and also
the typed copies of the summons in O.S.No.150/2007. The
learned counsel referring the summons would contend that
the notice was served only against defendant No.2 and insofar
as defendant No.1 is concerned, defendant No.2 did not
disclose the address of defendant No.1 and hence the same
was returned. The learned counsel brought to the notice of
this Court, the order sheet of the Trial Court in
O.S.No.150/2007. On 28.02.2007, the counsel filed the
vakalath for defendant No2 and memo of undertaking was
filed for defendant No.1. On the next date of hearing, the
defendants and their counsel were absent and written
statement objections were not filed and hence the case was
posted for evidence and thereafter proceeded to pass the
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judgment and decree. The learned counsel referring the copy
of the summons and the order sheet would contend that when
there is no proper service, the Trial Court ought not to have
decreed the suit and ought not to have dismissed the petition.
9. Per contra, the learned counsel for respondent
No.1 would contend that it is not in dispute that defendant
Nos.1 and 2 are the brothers and both of them are residing in
the same address. The learned counsel submits that even the
legal heirs of defendant No.1, who claim that no summons
was served, in the petition, they have stated the very same
address and the fact that both the brothers are residing
together is not in dispute. The learned counsel submits that
he had obtained the copy of the summons and also produced
the certified copy of the summons, wherein also categorical
endorsement is made that defendant No.2 did not disclose the
address of defendant No.1. However, defendant No.2 had
engaged the counsel and the very same counsel engaged by
defendant No.2 had undertaken to appear on behalf of
defendant No.1 also by filing the memo on 28.02.2007 and
also produced the certified copy of the said memo as well as
the vakalath filed by defendant No.2 before the Trial Court.
The learned counsel has produced Annexure-R5 stating that
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the said Cheluvaraju passed away and his last rites were
made in the house of defendant No.2. The death certificate
discloses the place of death as Hosahundi village i.e., the
address mentioned in the suit. There is a proper service to
the family members i.e., the brother and also the lawyer had
undertaken to appear on his behalf. When such being the
case, the said fact is taken note of by the Trial Court in
dismissing the petition.
10. Having heard the learned counsel for the
appellants and the learned counsel for respondent No.1 and in
view of the direction given by this Court, both the counsel
have produced the copies of the summons issued in the
original suit against defendant No.1. Having perused the
summons, there is no service of notice against defendant
No.1. However, it is important to note that the address of
both defendant Nos.1 and 2 given in the original suit is same
and also both of them are brothers. When defendant No.2
had taken the suit summons and when the detail was asked
with regard to his brother's address is concerned, he did not
disclose the same and hence the same was returned. It is
important to note that defendant No.2 had engaged the
counsel on 28.02.2007 before the Trial Court. It is also
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important to note that the very same counsel had filed a
memo undertaking to file vakalath for defendant No.1 also.
The certified copy is also placed before the Court with regard
to the same before the Trial Court on the very same day. The
counsel represented on behalf of defendant No.1 by filing the
memo and hence, it is clear that defendant No.1 was also
having the knowledge of the proceedings initiated against him
and other defendant i.e., defendant No.2. It is not in dispute
that defendant Nos.1 and 2 are brothers and it is also not in
dispute that defendant No.2 had taken the notice of the suit
summons and the counsel who had filed the vakalath on
behalf of defendant No.2, had filed the memo of appearance
for defendant No.1 and took time to file vakalath as well as
the written statement. Both of them have not contested the
matter. The defendant No.2 also not contested the matter by
filing the written statement.
11. On perusal of the order sheet, it is clear that
defendant No.2 appeared on 28.02.2007 and on the very
same day, the counsel Sri GM had filed a memo of
appearance on behalf of defendant No.1 also. The case was
posted for 06.07.2007 for filing of power for defendant No.1
and also written statement. On 06.07.2007, the defendants
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and their counsel were absent and hence the Trial Court has
taken note of that the written statement and objections not
filed and posted the matter for plaintiff's evidence on
26.10.2007. It is important to note that the case was
adjourned for evidence on 25.01.2008. On 25.01.2008, again
the plaintiff filed affidavit and marking of documents the
matter was adjourned to 20.03.2008. On 20.03.2008, the
matter was adjourned at the request of learned counsel for
the plaintiff and posted the matter to 18.07.2008 and
ultimately on 18.07.2008, P.W.1 was examined and Exs.P.1 to
5 were marked and the matter was posted for further
evidence of P.W.1. On 21.08.2008, an application was filed
under Order 7 Rule 14 of CPC with documents and the same
was allowed. The defendant No.1 was further examined and
Exs.P.6 to 8 were marked and posted for further plaintiff's
evidence on 21.10.2008. That on 21.10.2008, an affidavit
was filed and an application under Order 16 Rules 1 and 2 of
CPC was also filed. The counsel for the defendants was
absent and the said application was allowed. P.W.2 and P.W.3
were examined and the case was posted for defendants'
evidence even inspite of written statement was not filed and
adjourned the matter to 28.11.2008. In view of declaring of
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holiday on 28.11.2008, the matter was adjourned to
06.01.2009 and on the said day, the defendants and their
counsel was absent. The defendants' evidence was taken as
closed and the matter was posted to 22.01.2009. On
22.01.2009, the learned counsel for the plaintiff was heard
and the matter was posted for judgment on 31.01.2009. On
31.01.2009, time was sought and hence the case was posted
to 20.02.2009. On 20.02.2009, once again the plaintiff's
learned counsel filed an application under Order 7 Rule 14 of
CPC along with the documents and under Order 18 Rule 17
read with 151 of CPC and both the applications were allowed.
P.W.1 was further examined and the documents Exs.P.9 and
10 were marked and closed the further evidence and posted
the matter for judgment and ultimately the judgment was
pronounced on 27.02.2009.
12. It is important to note that when the summons
was served on defendant No.2, brother of defendant No.1 and
also appearance was made on 28.02.2007 and almost two
years taken for disposal of O.S.No.150/2007. Even the
brother of defendant No.1 also though represented throught
counsel not filed any written statement and not participated in
the proceedings and apart from that undertaking was given
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before the Trial Court on behalf of defendant No.1 also and
now the present appellant, who are the legal heirs of
defendant No.1 cannot contend that he was not having any
knowledge.
13. Having perused the material available on record,
the suit is filed for the relief of specific performance of the
contract and for a period of two years, even though the
defendants were having knowledge about the proceedings, did
not contest the matter. It is important to note that in
Misc.No.77/2010, when petitioner No.1 was examined as
P.W.1, she has categorically given the admission that the
address mentioned in the petition and also the address
mentioned in the suit is one and the same. The address of
both the defendants is shown as Hosahundi village. The Trial
Court also taken note of appearance on behalf of defendant
No.2 and also undertaking given by the very same counsel to
appear on behalf of defendant No.1 also and rightly comes to
the conclusion that both the defendants were having
knowledge about the proceedings. Even though no summons
was served on the husband of petitioner No.1, the fact that all
of them are residing together is not in dispute. The petitioner
No.1 categorically stated that the last rites of her husband
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was conducted in the house of defendant No.2. When such
material is available before the Court and though the learned
counsel for the appellants contend that Exs.P.3 and 4, birth
certificate and election identity card are pertaining to
petitioner No.2 and also election identity card pertains to
petitioner No.1 in respect of different address i.e., Mysuru
address, the same cannot be relied upon, since the Court has
to take note of the factual aspects of the case. The defendant
Nos.1 and 2 are brothers and were having knowledge of the
earlier proceedings. The defendant No.2 was represented
through the counsel and the very same counsel undertook to
appear on behalf of defendant No.1 before the Trial Court.
14. I have already pointed out that from 2007 to
2009, the proceedings was pending and no effort was made to
file the written statement by defendant No.2 and filing of
memo of undertaking by the advocate to appear on behalf of
defendant No.1. Hence, the Trial Court rightly comes to the
conclusion that the defendants had knowledge about the
proceedings. The learned counsel for respondent No.1 also
produced the death certificate, which clearly discloses that the
husband of petitioner No.1 passed away in the very same
village i.e., Hosahundi village. The grounds urged before this
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Court that the appellants had no knowledge about the
proceedings and no summons have been served, cannot be
accepted having considered the factual aspects of the case.
Hence, I do not find any ground to set aside the order passed
by the Trial Court.
15. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
MD
