Karnataka High Court
Sri M Tulasidas vs Sri M.K. Gowtham Chand on 12 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.2764/2014 (CPC)
BETWEEN:
SRI M.TULASIDAS,
AGED ABOUT 66 YEARS,
S/O M.N.MUDDANNA,
NO.244, VENKATESHWARA KRUPA,
6TH MAIN, 4TH BLCOK, JAYANAGAR,
BANGALORE-560011. ... APPELLANT
(BY SRI M.B.CHANDRA CHOODA, ADVOCATE FOR
SRI K.C. SHANTAKUMAR, ADVOCATE)
AND:
1. SRI M.K. GOWTHAM CHAND,
AGED ABOUT 56 YEARS,
S/O LATE M.K.DHARIWAL,
NO.12, R.T.STREET,
BANGALORE-560053.
2. MRS. ANITHA R.BOHRA,
AGED ABOUT 44 YEARS,
W/O M.RAJENDRA,
RESIDING AT NO.228,
SEPPINGS ROAD,
BANGALORE-560001. ... RESPONDENTS
(BY SRI KIRAN S. JAVALI, SENIOR COUNSEL ALONG WITH
SRI CHANDRASHEKARA K., ADVOCATE FOR C/R1;
R2 - IS SERVED, BUT UNREPRESENTED)
2
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(d) OF
CPC, AGAINST THE ORDER DATED 25.01.2014 PASSED IN
MISC.NO.100/2010 ON THE FILE OF THE V ADDITIONAL CITY
CIVIL JUDGE, BANGALORE, DISMISSING THE PETITION FILED
UNDER ORDER 9 RULE 13 OF CPC, TO SET ASIDE THE ORDER
DATED 19.09.2009 IN O.S.NO.7217/2008.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.11.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the caveator/respondent No.1.
2. This appeal is filed challenging the dismissal order
dated 25.01.2014 passed in Misc.No.100/2010 filed under Order
9 Rule 13 of CPC, on the file of the V Additional City Civil Judge,
Bangalore (CCH-13).
3. The factual matrix of the case of the
appellant/defendant is that the respondents/plaintiffs had filed a
suit stating that the defendant executed the agreement of sale
and agreed to sell the property bearing No.244, 6th Main, 4th
Block, Jayanagar, Bangalore measuring east to west 60 ft. and
north to south 40 ft. consisting of construction in the said
property for sale consideration of Rs.2,25,00,000/- and on the
date of agreement an amount of Rs.1,95,00,000/- was paid.
The time for completion of the sale deed was agreed for 14
months. The plaintiffs also agreed to clear the loan to ICICI
Bank payable by the defendant in respect of the property in
question. It is also claimed by the plaintiffs that ground floor
rear portion of the property has been handed over and also
claims that agreed to deliver front portion ground floor, I floor
and II floor. The plaintiffs filed O.S.No.7127/2008 for the relief
of specific performance and notice was served on the
appellant/defendant and he did not file the written statement
when the case was set down for filing of written statement.
Later, the case was posted for evidence of the witnesses and
P.W.1 was examined, but was not cross-examined and the Trial
Court heard the matter and passed the judgment and decree.
However, it is contended that in the suit, the learned counsel
filed the memo for retirement and the same was not accepted.
4. Being aggrieved by the judgment and decree, the
appellant/defendant filed Misc.No.100/2010 under Order 9 Rule
13 of CPC on the ground that he was old aged and he was not
keeping well and was on treatment from 25.12.2008 to
19.09.2009 and he underwent surgery on 20.10.2009 and he
was discharged from the hospital on 23.10.2009 and requested
the Trial Court to set aside the exparte judgment and decree and
the same was dismissed. The plaintiff filed the Execution
No.95/2010 and deposited the balance sale consideration and
sale deed was executed, but possession was not handed over
and this Court granted the stay of delivery of possession.
5. The learned counsel for the appellant would
vehemently contend that the Trial Court committed an error in
dismissing the Misc. petition. Inspite of reason was stated that
he was under treatment and could not appear and file the
written statement and contest the matter, the same has not
been considered and the very order passed by the Trial Court is
erroneous. Inspite of sufficient cause is shown, the Trial Court
committed an error in dismissing the same when he was
prevented with sufficient cause since he was suffering from ill
health and the findings given by the Trial Court is erroneous and
hence it requires interference of this Court.
6. The learned counsel for the appellant in support of
his contentions he relied upon the judgment of the Hon'ble Apex
Court in the case of ARJUN SINGH v. MOHINDRA KUMAR
AND OTHERS reported in AIR 1964 SC 993 and brought to the
notice of this Court paragraph No.8 wherein the Apex Court
distinguished the provision under Order 9 Rule 7 and Order 9
Rule 13 of CPC regarding good and sufficient cause.
7. The learned counsel also relied upon the judgment of
this Court in the case of TUNGAVVA AND OTHERS v.
TARAVVA AND OTHERS reported in ILR 1978 KAR 1035 and
brought to the notice of this Court paragraph Nos.2 and 10. In
paragraph No.2 it is discussed regarding similar set of facts,
passing of judgment. In paragraph No.10 it is held that justice
delayed is justice denied and justice hurried is justice buried and
also deprecated such short trips and dubious disposal of suits by
the subordinate Courts, which result in grave failure of justice.
8. The learned counsel also relied upon the judgment of
this Court in the case of N.P. SIDDAIAH v. M/S. K. GOPAL
AND SONS reported in AIR 1985 KAR 175 and brought to the
notice of this Court paragraph Nos.9 to 11, wherein discussion
was made with regard to scope of Order 9 Rule 13 of CPC and
also sufficient cause for non-appearance and held that there was
a sufficient ground for the revision petitioner for non-
appearance.
9. The learned counsel also relied upon the judgment of
the Apex Court in the case of SUSHILA NARAHARI AND
OTHERS v. NANDAKUMAR AND OTHERS reported in (1996)
5 SCC 529 and brought to the notice of this Court paragraph
No.4, wherein the exparte decree was set aside and the Trial
Court was directed to give opportunity to the appellants to cross-
examine the witness examined by the respondents of the suit
and also adduce evidence on her behalf.
10. The learned counsel also relied upon the judgment of
the Apex Court in the case of G.P. SRIVASTAVA v. R.K.
RAIZADA AND OTHERS reported in AIR 2000 SC 1221 and
brought to the notice of this Court paragraph No.8 wherein it is
observed that even if the appellant was found to be negligent,
the other side could have been compensated by costs and the
exparte decree set aside on such other terms and conditions as
were deemed proper by the Trial Court.
11. The learned counsel also relied on the judgment of
the Apex Court in the case of SHANTILAL GULABCHAND
MUTHA v. TATA ENGINEERING AND LOCOMOTIVE
COMPANY LTD. AND ANOTHER reported in (2013) 4 SCC
396 and brought to the notice of this Court paragraph Nos.8, 9
and 13, wherein discussion was made with regard to scope of
Order 8 Rule 10 of CPC.
12. The learned counsel also relied upon the judgment of
the Apex Court in the case of RAJINDER KUMAR v. KULDEEP
SINGH AND ANOTHER reported in (2014) 15 SCC 529 and
brought to the notice of this Court paragraph Nos.16 to 20,
wherein it is discussed with regard to not filing the written
statement and even if written statement is not filed, the Court
has to consider the material on record while granting the relief of
decree as sought.
13. The learned counsel also relied upon the judgment of
the Apex Court in the case of MAYA DEVI v. LALTHA PRASAD
reported in AIR 2014 SC 1356 and brought to the notice of this
Court paragraph No.28 wherein also discussion was made with
regard to the filing of the written statement and stopped
appearing and suit was proceeded exparte and also discussed
regarding Order 8 Rule 10 of CPC and the same does not invite a
punishment in the form of an automatic decree and the same
must be considered on merits.
14. The learned counsel also relied on the judgment of
this Court in the case of M. NAGESH SUVARNA v. SRI
NARAYANA reported in ILR 2016 KAR 4252 and brought to
the notice of this Court paragraph No.15 wherein observation is
made by this Court regarding sufficient reason is given and delay
has to be condoned taking into note of the appellant coming
from rural background.
15. Per contra, the learned counsel for the
caveator/respondent No.1 in his argument would vehemently
contend that an amount of Rs.1,95,00,000/- was paid out of
Rs.2,25,00,000/- and the fact that the appellant/defendant
appeared before the Court on 25.11.2008 is not in dispute and
date was fixed for filing of the written statement, but not filed
the written statement and adjourned the matter for the plaintiffs'
evidence to 13.04.2009 and in the meanwhile, not filed the
written statement and contested the matter. The learned
counsel contend that the Court has to take note of the conduct
of the defendant, who had executed the gift deed in favour of his
son on 02.02.2009 instead of filing the written statement and
based on the said gift deed, his son entered into a sale
agreement with one Satish by taking Rs.50,00,000/- on
24.03.2009. The evidence was recorded on 13.09.2009 and
judgment was passed on 19.09.2009 and depositing the balance
consideration, sale deed was also obtained. Inspite of having
the knowledge about the suit and also filing of the execution
petition, he has refused to receive the notice in the execution
petition and the Court has to take note of the said conduct of the
defendant. The learned counsel contend that the appellant had
also filed a criminal complaint PCR and after the investigation,
the police have filed the 'B' report and apart from that, set up his
son to file the suit for the relief of partition in O.S.No.2930/2010
and the wife of the respondent had borrowed loan on the basis
of gift deed executed by the respondent and contend that he is
not entitled for any relief.
16. The learned counsel for respondent No.1 relied upon
the judgment of the Apex Court in the case of PARIMAL v.
VEENA ALIAS BHARTI reported in (2011) 3 SCC 545 and
brought to the notice of this Court the discussion made about
scope of Order 9 Rule 13 of CPC in paragraph No.10 and also
brought to the notice of this Court paragraph Nos.21, 22 and 23
wherein an observation is made that no attempt has been made
by the respondent wife to examine the postman even though an
allegation is made that there had been a fraud or collusion
between the appellant and the postman and set aside the
judgment of the High Court and hence he is not entitled for any
relief.
17. Having heard the learned counsel for the appellant
and the learned counsel for respondent No.1, it is not in dispute
that there was an agreement of sale. But it is the contention of
the appellant that it was not a sale transaction and it was a loan
transaction. The learned counsel for the appellant in the course
of argument contend that the appellant has not received the
amount as contended by the respondents/plaintiffs. Instead of
proving the same by filing the written statement and contesting
the matter, the appellant adopted the method of executing the
gift deed in favour of his son after he made an appearance
before the Trial Court. It is important to note that it is the main
contention of the appellant that he was suffering from ill health
and he was subjected to surgery on 20.10.2009 and he was in
the hospital for a period of 3 days till 23.10.2009 and the case
was set down for filing of the written statement in the month of
January 2009, though he had appeared in the month November
2008. It is his contention that he was suffering from ill health
from 25.12.2008 to 19.09.2009 and to substantiate the same,
no material is placed before the Court. It is important to note
that instead of contesting the matter, a suit was filed in
O.S.No.2930/2010 by the son of the appellant and got the
partition and the Court has to take note of the conduct of the
appellant. The son based on the gift deed entered into a sale
agreement with one Satish. It has to be noted that the appellant
did not file the written statement, but he executed the gift deed
on 24.03.2009 and in order to execute the gift deed, there was
no ill health and only for filing the written statement and
contesting the matter, he pleads for ill health. The Trial Court in
detail discussed the same whether sufficient cause has been
shown to set aside the judgment and decree. The fact that he
had appeared and he did not choose to file the written statement
is not in dispute. The appellant had appeared on 25.11.2008
and within 30 days he has not filed the written statement and
even the Trial Court also discussed the time period for filing the
written statement 30 days and maximum 90 days and instead of
filing the written statement, he had created the document and
also the fact that under Order 8 Rule 10 of CPC when the
defendant failed to file the written statement within 90 days, the
Trial Court proceeded to pass the order.
18. It is important to note that when he had pleaded ill
health, this Court observed that no material is placed except that
he underwent surgery and he was admitted only for three days
and before that he created the document in favour of his son
and his son also executed the sale agreement and also got filed
the suit, but no action was taken either to file the written
statement or for recalling the witness and cross-examining the
witness and if really the transaction is only a money transaction,
as contend by the appellant in his petition, there was no
hindrance for him to prosecute the original suit in a proper
manner. Instead of doing the same, he had indulged in creation
of document. He admitted the agreement of sale and sale
consideration of Rs.2,25,00,000/-, but though he contend that
he did not receive any amount, he did not place any material.
Instead of taking specific defence and placing cogent evidence,
he executed gift deed in favour of his son in respect of the
disputed property and got filed the suit through another son for
partition and the fact is that other family members are also
consenting witnesses to the sale agreement. These materials
were taken note of by the Trial Court while considering the
material on record. The Trial Court also taken note of the fact
that he went and took treatment in Nelamangala inspite of he is
the permanent resident of Jayanagar and also taken note of that
he had indulged in creation of documents for the purpose of
filing the petition and in paragraph No.11 discussed and taken
note of the conduct of the appellant. When such material is
available before this Court, this Court do not find any reasons to
come to a other conclusion. The principles laid down in the
judgments referred supra by the learned counsel for the
appellant there is no dispute with regard to scope of Order 9
Rule 7, Order 9 Rule 13 and Order 8 Rule 10 of CPC and also
showing of sufficient cause. In the case on hand, when an
opportunity was given, he did not utilize the opportunity and
date was fixed for filing of the written statement on 01.01.2009
and from 01.01.2009 till the date of decree i.e., 19.09.2009, not
made any efforts either to file the written statement or to file an
application for recalling the witness and cross examine the
witness and only an effort was made to file the petition in 2010
and he was able to create the document in favour of his son only
with an intention to offshoot the suit for specific performance,
but not contested the same. In the absence of any sufficient
cause, the question of exercising the discretion and exercising
the power under Order 9 Rule 13 of CPC does not arise and there
is no merit in the appeal.
19. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
MD
