Karnataka High Court
Chandrashekar vs G Manoj Kumar on 30 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.5455/2024 (CPC)
BETWEEN:
CHANDRASHEKAR
S/O LATE THIMMAIAH
SINCE DEAD BY HIS LRS
1. SMT. RANGAMMA
W/O LATE CHANDRASHEKAR
AGED ABOUT 73 YEARS
2. MOHANKUMAR
S/O LATE CHANDRASHEKAR
AGED ABOUT 59 YEARS
3. CHETHAN KUMAR
S/O LATE CHANDRASHEKAR
AGED ABOUT 56 YEARS
4. HEMARAJU
S/O LATE CHANDRASHEKAR
AGED ABOUT 52 YEARS
ALL ARE RESIDING AT NO.6,
GAYATHRI SOUTHERN EXTENSION,
CHENNARAYAPATNA TOWN-573 116.
... APPELLANTS
(BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE)
2
AND:
1. G.MANOJ KUMAR
S/O GANAPATHLAL BOHRA
MAJOR, R/AT 1ST MAIN,
VIVEKANANDA NAGAR
CHANNARAYAPATNA TOWN-573 116.
2. C.A.MAHESHA
S/O C.R.ADISHETTY
MAJOR, R/AT J.C.ROAD
NEAR KANNAN BAKERY AND
PREMIERE STUDIO, 2ND CROSS,
MYSORE CITY-570 026.
... RESPONDENTS
(BY SRI H.N. MANJUNATHA PRASAD AND
SRI GIREESHA R.J., ADVOCATES FOR C/R1)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 05.08.2024
PASSED IN MISC.NO.7/2018 ON THE FILE OF THE SENIOR CIVIL
JUDGE, JMFC, CHANNARAYAPATNA, DISMISSING THE PETITION
AS NOT MAINTAINABLE UNDER ORDER 9 RULE 13 R/W SECTION
151 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.10.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for appellants and learned
counsel for the caveator-respondent No.1.
2. This miscellaneous first appeal is filed being
aggrieved by the order of the Trial Court in dismissal of
Miscellaneous No.7/2018 vide order dated 05.08.2024.
3. The factual matrix of the case of the appellants
before this Court is that the appellants are the legal
representatives of Sri Chandrashekar, who was defendant No.2
in O.S.No.45/2015 filed by respondent No.1 against the
respondent No.2 and also the said Chandrashekar. The suit is
filed based on the agreement executed by the defendant No.1 in
favour of the plaintiff. The said suit was decreed, since the
defendant No.1 was placed exparte and defendant No.2 i.e., said
Chandrashekar though appeared, did not contest the matter and
being aggrieved by the judgment and decree passed in
O.S.No.45/2015, the present appellants have filed Miscellaneous
No.7/2018 making allegation that respondent No.1 in collusion
with respondent No.2 created the sale agreement and filed the
suit fraudulently and obtained an exparte judgment and decree.
It is the contention that the petitioner Sri Chandrashekar, who
was defendant No.2 before the Trial Court in O.S.No.45/2015
has contended that a sale deed was executed by the respondent
No.2 in the miscellaneous proceedings on 06.11.2013 and he is
the bonafide purchaser and he had bequeathed the same to his
son through a registered gift deed and all the records stands in
the name of the petitioner's son. After having purchased the
property by the petitioner, the respondents colluded together
and taking undue advantage of the petitioner's ignorance and
age oldness, they created and concocted the sale agreement and
fabricated the document with an intention to knock off the
property of the petitioner.
4. It is also the contention that petitioner and his son
have improved the suit property by investing their hard earned
money. It is further contended that panchayath was also held
and respondents have repented for their wrongful acts and
agreed to withdraw that suit and demanded the petitioner to
bear the cost of the suit for which the petitioner agreed. By
reposing confidence in the words of respondents and panchayath
decision, the petitioner could not confirm the position of the suit
by contacting his advocate and fraudulently obtained the decree
and the same came to the knowledge of the petitioner
subsequently, when the defendant No.1 got lodged the police
complaint stating that he has obtained the decree from the
Court. Immediately, the petitioner with the help of his son,
contacted the advocate and then they came to know that the
respondent No.1 by playing fraud upon the petitioner has
obtained an exparte judgment and decree and also started to
interfere with lawful possession of the petitioner's son over the
suit property. After coming to know the fraudulent acts of
respondents, the petitioner questioned it, but the respondents
have threatened the petitioner. Hence, filed the petition for
setting aside the judgment. It is contended that the petitioner is
the bonafide purchaser and the respondents have fraudulently
managed to get an exparte judgment.
5. In pursuance of the suit summons in Miscellaneous
No.7/2018, the respondents have appeared before the Court and
respondent No.1 filed statement of objection to the main petition
and denied the contention and also the contentions which have
been urged in the petition and prayed to dismiss the petition.
6. The petitioner to prove his case, examined himself as
P.W.1 and got marked the documents as Exs.P1 to P8. On
behalf of the respondents, respondent No.1 examined himself as
R.W.1 and got marked the documents as Exs.R1 to R7.
7. The Trial Court having considered the material on
record and the grounds which have been urged, framed two
points for consideration whether grounds have been made out to
condone the delay and whether sufficient grounds have been
made out to set aside the judgment and decree passed in
O.S.No.45/2015. Both the points for consideration are answered
as 'negative' and dismissed Miscellaneous No.7/2018. Being
aggrieved by the said order, present appeal is filed before this
Court.
8. The main contention of the learned counsel
appearing for the appellants before this Court is that the
appellants are the legal representatives of original defendant
No.2. The original defendant No.2 filed written statement along
with I.A.No.5 and the same was allowed on cost of Rs.2,500/-.
Due to ill-health of the petitioner and his old age, he could not
prosecute the matter and he was bedridden and he did not
contact his advocate. As a result, cost of Rs.2,500/- was not paid
and written statement was rejected on 07.06.2017 for non-
payment of cost. However, the petitioner appeared before the
Trial Court and gave evidence as P.W.1 in Miscellaneous
No.7/2018 and in the cross-examination, it is elicited that he
was illiterate villager and innocent. Learned counsel would
vehemently contend that P.W.1 was unable to understand as to
whether he was the plaintiff/petitioner in Miscellaneous
No.7/2018. He was unable to answer whether the proceedings
is a miscellaneous proceedings or a original suit. Having taken
note of the answer given by him that he has not filed the case
and respondent No.1 has filed the case, it could be inferred that
P.W.1 is innocent and he proceeded as if the suit is pending. The
nature and conduct of the petitioner clearly establishes that he
has remained exparte due to ignorance, old age and sickness.
The Trial Court ought to have taken note of the same and would
have condoned the delay in filing the miscellaneous petition and
would have set aside the exparte judgment and decree.
9. The petitioner has produced the medical certificate
Ex.P8 which clearly shows that he was admitted to hospital and
he was suffering from diabetic with foot ulcer and during the
pendency of miscellaneous, he died due to ill-health. The Trial
Court has failed to take note of the fact that limitation for filing
the suit was over and suit was barred by limitation. The alleged
agreement dated 21.03.2012 fixed a period of three months for
execution of sale deed. This period has expired on 20.06.2012
and suit was filed in the month of July, 2015 beyond three years.
The advance said to be paid was only Rs.5,00,000/- as against
total sale consideration of Rs.47,36,160/-. The property
consisted of site measuring east to west 48 feet and north to
south 78 feet and property is also situated in the main location.
Learned counsel also would vehemently contend that in the
plaint schedule, the property was described as being situated in
Gayathri Northern Extension instead of as behind RMC yard and
this mistake was corrected by the decree holder by filing the
application for amendment of the plaint in Execution No.97/2017
and the same was allowed without notice to defendant No.2.
Learned counsel urging all these grounds would vehemently
contend that the Trial Court ought to have set aside the
judgment and decree and instead, erroneously dismissed the
petition.
10. Per contra, learned counsel for the caveator-
respondent No.1 in his argument would vehemently contend that
the petitioner had appeared through counsel and he did not file
statement of objections and even after examination of the
plaintiff before the Trial Court also, he did not cross-examine the
witness. When the case was set down for evidence of
defendants, he came up with an application to file written
statement and the same was allowed on cost of Rs.2,500/-. The
cost was not paid and not contested the matter and the
petitioner was also having knowledge about the earlier
agreement and his son was one of attesting witness to the sale
agreement executed in favour of the plaintiff and immediately
after obtaining the sale deed, he had gifted the property in
favour of his son in 2014. Learned counsel also brought to
notice of this Court the fact that son had filed an application
under Order XXI Rule 97 of CPC and the Executing Court allowed
the application and the same has been questioned before the
High Court and the High Court set aside the order. Learned
counsel also would vehemently contend that inspite of
miscellaneous petition was pending, appeal in
R.F.A.No.1016/2024 was filed and the same was also dismissed
on the ground of delay. Having taken note of the fact that
already miscellaneous petition was filed, an opportunity was
given. Learned counsel would further contend that the
respondent No.2 had approached this Court by filing writ petition
and obtained the direction for speedy disposal and thereafter,
the Trial Court has decided the matter on merits.
11. Learned counsel also brought to notice of this Court
the detailed statement of objections filed to this appeal and
reiterated the grounds urged in the appeal. In Paragraph No.10
of the statement of objections, details are given with regard to
original petitioner having participated in the proceedings in suit
in O.S.No.45/2015 from 17.08.2015 and inspite of an
opportunity being given, not filed written statement and even
when the plaintiff was examined as P.W.1, at the request of
defendant No.2, cross-examination was deferred and ultimately
on 13.02.2017, cross-examination of P.W.1 was taken as 'nil'
and plaintiff's evidence was closed and posted the matter for
evidence of defendants. It is also contended that defendant No.2
had come up with an application I.A.No.5 and the same was
allowed on cost of Rs.2,500/- and the cost was not paid and then
the Trial Court rejected the written statement and when
sufficient opportunity is given, the question of treating the same
as exparte judgment and decree does not arise. Learned counsel
also would vehemently contend that when the petition was filed
under Order 9 Rule 13 read with Section 151 of CPC, the
appellants have to show sufficient cause for non-appearance and
not contested the matter before the miscellaneous proceedings
and since sufficient cause was not shown, rightly dismissed the
petition. Hence, there are no grounds to interfere with the order
passed by the Trial Court.
12. Having heard the learned counsel for the appellant
and learned counsel for the caveator-respondent No.1 and
having considered the grounds which have been urged, the
points that would arise for consideration of this Court are:
(1) Whether the Trial Court has committed an
error in answering both the points for
consideration as 'negative', in coming to the
conclusion that appellant has not made out
sufficient grounds to set aside the judgment
and decree and also to condone the delay?
(2) What order?
Point No.(1)
13. Having heard the respective counsel and also on
perusal of the material available on record, this Court would like
to make a mention of the undisputed facts. It has to be noted
that the respondent No.1 had filed suit for specific performance
against the petitioner and the original petitioner was arrayed as
defendant No.2 and the original owner of the suit schedule
property was arrayed as defendant No.1. It has to be noted that
the original owner was placed exparte in O.S.No.45/2015. The
records also disclose that the original petitioner in Miscellaneous
No.7/2018 has entered appearance through his counsel on
17.08.2015. The records also disclose that he was present
before the Court on the next date of hearing on 29.09.2015. It
is also important to note that, inspite of his appearance through
counsel, the original petitioner i.e., defendant No.2 has not filed
written statement. However, he had raised objection with regard
to the stamp duty on 05.10.2016.
14. The records also disclose that plaintiff has been
examined as P.W.1 and learned counsel for the defendant No.2
has taken time to cross-examine P.W.1 on several occasion and
ultimately on 13.02.2017, the cross-examination of P.W.1 was
taken as 'nil', since learned counsel and defendant No.2 were not
present and there was no representation. On the next date of
hearing, the plaintiff also made submission that his evidence was
closed and matter was posted for defendant's evidence on
02.03.2017. Both the counsel and defendant No.2 not appeared
before the Court and once again, the matter was adjourned to
07.03.2017. Defendant No.2 was absent, no representation and
posted for arguments on 15.03.2017. However on 20.03.2017,
learned counsel for defendant No.2 filed I.A.No.5 under Section
151 of CPC seeking permission to file written statement and the
same was allowed on cost of Rs.2,500/- and permitted to file
written statement. The defendant No.2 was absent and not paid
the cost. Hence, written statement filed by him was rejected.
Learned counsel for defendant No.2 again prayed for time and
since the written statement of defendant No.2 is not accepted as
he has not paid the cost and not cross-examined P.W.1, he has
not led any evidence and posted the case for judgment on
13.06.2017.
15. Having taken note of these aspects, the scope of
petition filed under Order 9 Rule 13 read with Section 151 of CPC
is very limited. The Court has to only examine whether sufficient
grounds have been made out to set aside the judgment and
decree and if it is exparte decree, whether any good ground is
made out for non-appearance and then only, the Court can set
aside the exparte decree and that too, when the defendant place
satisfactory material before the Court that summons are not
served on him.
16. Having perused he material on record, it is not in
dispute that defendant No.2 was served with notice and has
entered appearance in 2015 itself and thereafter also, he had
participated and appeared before the Court and not filed any
written statement. Even though the written statement was not
filed, opportunity was given to cross-examine P.W.1 and he did
not cross-examine him and when the case was set down for
arguments recording that he has no evidence, then he filed an
application to file written statement in 2017 and inspite of the
same being allowed on cost, he did not pay the cost and
contested the matter. The records reveal that though he had
appeared through counsel on 17.08.2015, till the disposal of the
suit, he did not participate in the proceedings effectively.
17. Learned counsel for the appellants would vehemently
contend that even the medical records are also produced before
the Trial Court and the Trial Court while considering the medical
records comes to the conclusion that the original petitioner has
not assigned any reason, even though Ex.P8-medical certificate
is produced and the same will not help him. The Trial Court also
taken note of the evidence of the petitioner, who has been
examined in miscellaneous proceedings, wherein also he
categorically admits that he is not concerned with the property
of the defendant No.1 and he also says that he is not having any
difficulty in passing the judgment and decree. No doubt, even
though he has given such answer, but the fact is that the
petitioner had purchased the property in the year 2013 and
there was a sale agreement in favour of the original plaintiff
dated 21.03.2012.
18. It is also important to note that one of the son of the
petitioner is witness to the sale agreement. Hence, the Trial
Court also comes to the conclusion that defendant No.2 cannot
be the bonafide purchaser, since his son was one of the witness.
It is also important to note that he had also filed
R.F.A.No.1016/2024 during the pendency of Miscellaneous
No.7/2018. It is also important to note that this Court also
dismissed the same on the ground of delay and also made an
observation that when the execution proceedings has reached
final stage, the appellants have chosen to file this appeal on the
premise that in the Order IX Rule 13 proceedings stay of the
decree is not yet granted or that the decree is not yet set aside.
It is also observed that the proceedings before the Trial Court in
miscellaneous proceedings has already been concluded and the
Trial Court will make endeavour to dispose of the application and
time bound period of 45 days is given to consider the application
on merits. It was also made clear that till the disposal of the said
proceedings, the respondents shall not execute the decree. This
order was passed on 14.06.2024.
19. It is also important to note that the Trial Court
considered the matter on merits and when the Trial Court has
entertained the application filed under Order XXI Rule 97 of CPC
filed by the son of defendant No.2, the same has been
challenged by the original plaintiff in W.P.No.46538/2018 and
this Court set aside the said order in coming to the conclusion
that objector is claiming right through the judgment debtor i.e.,
the father of the objector, who is the defendant No.2. It is also
important to note that even the original decree holder filed a writ
petition in W.P.No.17264/2023 and the same was disposed of
vide order dated 21.11.2023 with a direction to dispose of the
execution petition expeditiously.
20. Having perused all these material on record, even
the petitioner had made an attempt setting up his son as
objector by filing an application under Order XXI Rule 97 of CPC
and he was unsuccessful in 2021 itself in view of the order
passed by the Trial Court. Apart from that, when the matter is
pending before the Trial Court, appeal is also filed and the same
was dismissed and the said fact is also taken note by the Trial
Court while passing an order and even the Trial Court also taken
note of admission on the part of petitioner. Apart from that, the
Trial Court also taken note of the principles laid down in the
judgments which have been relied upon by the learned counsel
for the petitioners before the Trial Court and having considered
the ratio laid down in the judgments and also the judgment
relied upon by the learned counsel for the respondent, the Trial
Court while passing the order discussed with regard to sufficient
cause which has been explained in CIVIL APPEAL
NO.1467/2011 decided on 08.02.2011 in the case of
PARIMAL VS. VEENA @ BHARTI, wherein also discussion was
made as to meaning of the word "sufficient" is "adequate" or
"enough", inasmuch as may be necessary to answer the purpose
intended. "Sufficient cause" means that party had not acted in a
negligent manner or there was a want of bona fide on its part in
view of the facts and circumstances of a case or the party cannot
be alleged to have been "not acting diligently" or "remaining
inactive". However, the facts and circumstances of each case
must afford sufficient ground to enable the Court concerned to
exercise discretion for the reason that whenever the Court
exercises discretion, it has to be exercised judiciously.
21. The Trial Court also taken note of the principles laid
down in the judgment relied upon by the learned counsel for the
petitioners and learned counsel for the respondent and even
extracted Order 9 Rule 13 of CPC and also taken note of the
aspect of delay as well as merits and comes to the conclusion
that the documents at exhibit 'R' series reflect that sufficient
case is not forthcoming from the petitioner's side to condone the
delay as well as to set aside the judgment and decree and also
taken note of Ex.P8-medical certificate which is not pertaining to
the particular period. When such detailed discussion is made by
the Trial Court, the very contention of the learned counsel for
the appellants cannot be accepted.
22. The other contention of the learned counsel for the
appellants is that a correction was made with regard to the
schedule is concerned and same also cannot be accepted, since
the appellants also not dispute the fact that in respect of the
very same property there was a sale agreement prior to
purchase of the property by the original appellant in 2012 and
agreement of sale was of the year 2013 of the petitioner and
while exercising the jurisdiction, the Court has to consider
whether sufficient cause is shown to entertain the petition under
Order 9 Rule 13 of CPC and no such sufficient cause is shown
and the original defendant No.2, who is the petitioner in
miscellaneous petition appeared on 17.08.2015 in the suit and
he was also very much present before the Court in the month of
September and thereafter also, not filed written statement and
even after the case was set down for defendants evidence, when
the application was filed for written statement and the same was
allowed in 2017, subject to payment of cost, cost was not paid
and not participated in the proceedings. Hence, it is clear that
original petitioner has not shown any sufficient cause before the
Trial Court and the Trial Court also considered the meaning of
the word "sufficient" is "adequate" or "enough", inasmuch as
may be necessary to answer the purpose intended. "Sufficient
cause" means that party had not acted in a negligent manner or
there was a want of bona fide on its part and no such material is
placed in this regard and since the petitioner has not acted
diligently, the question of entertaining the petition filed under
Order 9 Rule 13 of CPC does not arise and he has remained
inactive before the Trial Court, inspite of suit being pending for a
period of two years, even after his appearance. Hence, no
sufficient cause is made out and records also reveal that there
are multiple proceedings initiated by the petitioner with an
intention to defeat the very judgment and decree and even after
passing the judgment and decree, he set up his son as objector.
23. Apart from that, the Trial Court already executed the
sale deed in favour of the respondent No.2 and copy of the sale
deed is placed before this Court. When such being the case, I
am of the opinion that there is no error on the part of the Trial
Court in passing such an order on the ground that no sufficient
cause is made out. Hence, no merit in the appeal to set aside
the order of the Trial Court and the Trial Court has meticulously
considered the material on record and passed the judgment and
it does not require any interference by setting aside the order.
Therefore, I answer point No.(1) as 'negative'.
Point No.(2)
24. In view of the discussion made above, I pass the
following:
ORDER
The miscellaneous first appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
CT-nsd/-
