Karnataka High Court
Dr Divya J vs Sri B N Govindaiah on 26 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1428 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1428 OF 2024 (RES)
BETWEEN:
1. DR. DIVYA J.,
D/O LATE G.L.JAIPAL,
AGED ABOUT 39 YEARS,
R/AT K.F.B.QUARTERS ROAD ,
WARD NO.7, CHANNARAYAPATNA TALUK,
HASAN DISTRICT-573 116.
...APPELLANT
(BY SRI. MADHUSUDHAN M.N., ADVOCATE)
AND:
1. SRI. B.N. GOVINDAIAH,
S/O LATE NANJAIAH,
Digitally signed AGED ABOUT 66 YEARS.
by DEVIKA M
Location: HIGH 2. SMT. JAYALAKSHMAMMA,
COURT OF
KARNATAKA W/O B.N.GOVINDAIAH,
AGED ABOUT 59 YEARS.
3. SRI B.G. HARIPRASAD,
S/O B.N.GOVINDAIAH,
AGED ABOUT 36 YEARS.
RESPONDENTS NO.1 TO 3 ARE
R/O GADDE BINDENAHALLI VILLAGE,
KASABA HOBLI,
CHANNARAYAPATNA TALUK
HASSAN DISTRICT-573 116.
...RESPONDENTS
(BY SRI. RAVISHANKAR A., ADVOCATE FOR C/R1 TO R3)
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RSA No. 1428 of 2024
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THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 5.04.2024
PASSED IN R.A.NO.90/2023 ON THE FILE OF 4TH ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT AT
CHANNARAYAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
17.06.2023 PASSED IN O.S.NO.80/2020 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHANNARAYAPATNA.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This appeal is filed against the concurrent finding.
Heard the learned counsel for the appellant and the learned
counsel for the respondents.
2. The factual matrix of the case of the plaintiffs
before the Trial Court is that the suit was filed seeking the
relief of declaration and cancellation of sale deed dated
31.08.2017 as null and void and also sought for the relief of
permanent injunction against the defendant. The very case
of the plaintiffs/respondents before the Trial Court is that
plaintiff No.1 was the absolute owner in possession of the suit
schedule property. The suit schedule property is the part and
parcel of Sy.No.105/1 measuring 1 acre 32 guntas of
D.Kalenahalli Village, Channarayapattana Taluk. The said
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land measuring 1 acre 32 guntas of Sy.No.105/1 was granted
to plaintiff No.1 by the Tahasildar on 27.05.1978. Pursuant to
the said grant, the khata of the property was entered in the
name of plaintiff No.1. Out of total extent of 1 acre 32
guntas, plaintiff No.1 transferred the land to an extent of 1
acre 12 guntas in favour of plaintiff No.2. The plaintiff No.2
got alienated the said extent of property vide DC conversion
order dated 01.04.2000. After getting the conversion,
plaintiff No.2 formed 14 residential sites in the said land by
obtaining permission from Town Municipality Council,
Channarayapattana. Later on, plaintiff No.2 gifted site Nos.1,
2, 7 and 8 in favour of her son i.e., plaintiff No.3 under gift
deed dated 12.12.2016. The plaintiff Nos.1 and 2 are the
parents of plaintiff No.3.
3. It is the further case of the plaintiffs that plaintiff
No.3 is the Lab Technician and was working under the
defendant. The defendant having the dominant status over
plaintiff No.3, instigated the mind of plaintiff No.3 to form a
partnership firm with an intention to grab the suit schedule
property. In furtherance of the said motive, the partnership
deed was executed on 02.01.2017 by the defendant with
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plaintiff No.3. The defendant brain washed the mind of
plaintiff No.3 with an ambition to commence business of
Super Specialty Hospital under the name and style of Jaipal
Hospital in the suit schedule property and got executed the
partnership deed. Further, the defendant with the same ill
will and motive got registered another partnership deed on
30.08.2017 with plaintiff No.3 to commence a business of
Super Specialty Hospital in the schedule property. The
previous partnership deed dated 02.01.2017 was dissolved.
Again on 30.08.2017, the defendant created sale deed in
respect of the suit schedule property from the plaintiffs
without the knowledge of the plaintiffs. When the partnership
deed was executed on 30.08.2017, the question of execution
of sale deed on 31.08.2017 did not arise at all. Without
bringing into notice of the plaintiffs the defendant got
executed sale deed and prior to the said sale deed she also
transferred the suit schedule property in her name. The
plaintiffs subsequently came to know that the defendant
played a fraud with them and immediately took an action to
institute suit and accordingly filed the suit for cancellation of
sale deed dated 31.08.2017 and for permanent injunction.
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4. The defendant in pursuance of the suit summons
appeared through the counsel and did not choose to file the
written statement and contest the matter and even not cross-
examined the witnesses. The Trial Court having considered
the plaint averments, framed the point for consideration as
whether the plaintiffs are entitled for the relief as claimed in
the plaint. The plaintiffs in order to substantiate their case,
examined plaintiff No.3 as P.W.1 and got marked the
documents at Exs.P.1 to 39 and also examined another
witness as P.W.2. The Trial Court having considered the
material available on record, comes to the conclusion that the
documents which have been placed before the Court clearly
discloses that the alleged sale deed, which is obtained is only
a nominal sale deed and no intention to execute such a sale
deed in view of the documents which have been in existence
between the parties i.e., partnership deed and subsequently
on the previous date of alleged sale deed, the document of
dissolution of partnership as well as one more fresh
partnership was entered on the very same day on
30.08.2017. The Trial Court having taken note of the
material available on record, comes to the conclusion that the
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plaintiffs are entitled for the relief as sought in the plaint and
decreed the suit.
5. Being aggrieved by the said judgment and decree
of the Trial Court, an appeal is filed in R.A.No.90/2023 and
the First Appellate Court having considered the material
available on record, particularly in paragraph No.20 taken
note of the appearance of the defendant and did not choose
to file the written statement even on number of dates the
plaintiffs were examined in part on three dates and the
evidence of P.W.1 and P.W.2 was not cross-examined.
However, an application was filed for amendment of the plaint
and after allowing the application for amendment, an
opportunity was given to file the additional written statement
and additional written statement was also not filed. Through
out not cross-examined the witnesses and the same has been
extracted in paragraph No.20. In paragraph No.21, the First
Appellate Court made an observation that the Trial Court
granted sufficient opportunity to both the parties to conduct
trial, but the defendant did not avail the opportunity. It is not
the case of the defendant that her request was rejected in any
of the stages. Rather on 30.11.2022, after nearly 1½ years,
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the defendant has also changed her advocate to contest the
suit, at this stage also the defendant did not take steps to file
the written statement and recall the witnesses examined on
behalf of the plaintiffs. Having considered the grounds urged
in the appeal memo as well as formulation of the points for
consideration, the First Appellate Court comes to the
conclusion that inspite of an opportunity was given, the
defendant did not avail the opportunity and answered the
points for consideration in the negative and confirmed the
judgment of the Trial Court.
6. Being aggrieved by the said concurrent finding,
the present second appeal is filed before this Court.
7. The main contention of the learned counsel for the
appellant before this Court is that inspite of an opportunity is
sought before the Trial Court, the same was rejected. The
learned counsel contend that an opportunity may be given to
the appellant to contest the matter and even exemplary cost
may be imposed by this Court and the matter has to be
considered on merits. The learned counsel in support of his
contentions, relied upon the judgment of the Apex Court
passed in Civil Appeal No.4151/2022 decided on
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11.07.2022, wherein the Apex Court taken note of that the
First Appellate Court gave specific findings while setting aside
the exparte judgment and decree that defendant Nos.2 and 3
have made out a sufficient cause for setting aside the exparte
judgment and decree. But while passing the impugned
judgment and order, the High Court has not at all dealt with
and considered the findings recorded by the First Appellate
Court, recorded while setting aside exparte judgment and
decree. The High Court has set aside the order passed by the
First Appellate Court solely on the ground that as the
defendant Nos.2 and 3 did not file the written statement and
contested the suit, the reopening of the suit would become
futile. However, as observed and held that this Court in the
case of Sangram Singh v. Election Tribunal reported in
AIR 1955 SC 425, on setting aside the exparte decree and
on restoration of the suit, the parties to the suit shall be put
to the same position as they were at the time when the
exparte judgment and decree was passed and the defendants
may not be permitted to file the written statement as no
written statement was filed. However, at the same time, they
can be permitted to participate in the suit proceedings and
cross-examine the witnesses. Having set aside the order of
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the High Court, gave an opportunity to contest the matter and
also made an observation that the High Court has not at all
observed anything on the correctness of the order passed by
the First Appellate Court setting aside the exparte judgment
and decree on merits.
8. The learned counsel referring this judgment would
contend that in the case on hand also, similar set of facts and
this Court can set aside the judgment and give an opportunity
to the appellant.
9. The learned counsel also relied upon the judgment
of the Apex Court in the case of RAFIQ AND ANOTHER v.
MUNSHILAL AND ANOTHER reported in (1981) 2 SCC 788
and brought to the notice of this Court paragraph No.3,
wherein it is held that the disturbing feature of the case is
that under our present adversary legal system where the
parties generally appear through their advocates, the
obligation of the parties is to select his advocate, brief him,
pay the fees demanded by him and then trust the learned
advocate to do the rest of the things. The party may be a
villager or may belong to a rural area and may have no
knowledge of the court's procedure. After engaging a lawyer,
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the party may remain supremely confident that the lawyer will
look after his interest. At the time of the hearing of the
appeal, the personal appearance of the party is not only not
required but hardly useful. Therefore, the party having done
everything in his power to effectively participate in the
proceedings can rest assured that he has neither to go to the
High Court to inquire as to what is happening in the High
Court with regard to his appeal nor is he to act as a watchdog
of the advocate that the latter appears in the matter when it
is listed. It is no part of his job.
10. The learned counsel referring these two
judgments would contend that an opportunity has to be given
to the appellant.
11. Per contra, the learned counsel for the
respondents has produced the list of documents before this
Court i.e., copy of the grant certificate issued in favour of
plaintiff No.1, order of conversion dated 31.03.2000, technical
sanction issued by the Urban Development Authority,
Channarayapatna in 2016, building licence issued by the
Municipality, Channarayapatana on 24.10.2016, partnership
entered into between plaintiff No.3 and the defendant on
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02.01.2017, certificate of Registration of Firm issued by the
Registrar of Firms, Hassan on 25.01.2017 consequent upon
the earlier partnership deed. The learned counsel also
brought to the notice of this Court the endorsement issued by
the Registrar of Firms regarding the registration of Firm
Jaypal Hospital, Form No.1 issued by the Registrar of Firms
with respect to Firm Jaypal Hospital, letter written by the
District Registrar to plaintiff No.3 under RTI Act on
18.07.2022, dissolution deed dated 30.08.2017 executed
between plaintiff No.3 and the defendant with respect to the
dissolution of the partnership dated 02.01.2017. The learned
counsel also brought to the notice of this Court the date of
purchase of stamp paper on the very same day in the early
morning and also entering into one more partnership deed
between the defendant and plaintiff No.3 on 30.08.2017 and
that was cancellation in the early morning and one more deed
of partnership entered on the same day in the afternoon. The
learned counsel also brought to the notice of this Court the
certificate of registration of Firms issued by the Registrar of
Firms in respect of the second partnership deed dated
30.08.2017, endorsement issued by the Registrar of Firms
regarding registration of Firm dated 30.08.2017, Form No.1
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issued on 30.08.2017, letter written by the District Registrar
to plaintiff No.3 under RTI Act on 28.06.2022 and so also the
gift deed executed by plaintiff No.2 in favour of plaintiff No.3
after the formation of sites.
12. The learned counsel also brought to the notice of
this Court that on the very next date of the new partnership
deed, which came into existence on 30.08.2017, the alleged
sale deed dated 31.08.2017 came into existence. The learned
counsel brought to the notice of this Court that in terms of the
sale deed, only cash of Rs.10 lakhs was paid and obtained the
sale deed and hence fraud was taken place. The suit was filed
for cancellation of the sale deed and an opportunity was given
before the Trial Court and for a period of 2 years, the
defendant did not file the written statement and only when
the matter was posted for judgment, at that juncture, an
application was filed to recall the order and not filed the
written statement and the Trial Court rejected the same and
considered the matter on merits. The learned counsel would
contend that the First Appellate Court having considered the
grounds urged in the appeal memo, in detail discussed in
paragraph Nos.20 to 22 that an opportunity was given to the
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defendant and confirmed the judgment of the Trial Court.
The learned counsel would contend that both the Courts have
given an opportunity and now the appellant cannot seek an
opportunity again. Even for imposing any cost also, the
appellant has not made out any grounds to set aside the
judgment of the Trial Court as well as reverse the judgment of
the First Appellate Court and no ground is made out to admit
the appeal and frame substantial question of law and the
question of remanding the matter does not arise.
13. Having heard the learned counsel for the appellant
and the learned counsel for the respondents and also
considering the material available on record, the plaintiffs
placed on record several documents that there was a
partnership deed between plaintiff No.3 and the defendant. It
is also the specific contention that plaintiff No.3 was working
with the defendant and the defendant is a doctor in whose
hospital he was working as a Lab Technician. It is important
to note that number of documents are placed on record even
with regard to the earlier partnership entered into between
the parties on 02.01.2017 and the same is registered with the
Registrar of Firms. The material discloses that the earlier
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partnership dated 02.01.2017 was dissolved and on the very
same day, one more fresh partnership deed was entered and
the same is registered with the Registrar of Firms and to that
effect the documents are placed on record i.e., on
30.08.2017. It is important to note that the sale deed is
dated 31.08.2017 on the very next date of entering into a
new partnership deed.
14. The learned counsel for the appellant would
contend that all these documents are disputed and no such
documents were entered into between plaintiff No.3 and the
defendant. When an opportunity was given before the Trial
Court, if no such documents came into existence between the
defendant and plaintiff No.3, what prevented the defendant
from filing the written statement before the Trial Court, no
any explanation. The fact that the defendant appeared before
the Trial Court through an advocate on 30.06.2021 and not
filed the written statement is not in dispute. Even if the
earlier advocate was not conducting the case properly, one
more advocate Mr.KRM was also engaged in the very same
Court and he filed the vakalath on 30.11.2022 and even after
engaging the new counsel also, the new counsel also not filed
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any written statement. Even after engaging the new counsel,
P.W.2 was examined before the Trial Court and both P.W.1
and P.W.2 not cross-examined by new counsel who filed
vakalath on 30.11.2022 and not contested the matter and
even not made any efforts to cross-examine P.W.1 and P.W.2.
Subsequently, an application is filed by the plaintiff for further
examination of P.W.1 and P.W.1 and after allowing the
application, further documents of Exs.P.38 and 39 got marked
subsequent to the engaging of new counsel. In view of the
non-filing of the written statement, further cross-examination
of P.W.1 was taken as nil and thereafter the plaintiffs closed
their side evidence. An opportunity was given to the
defendant's evidence and the defendant did not utilize the
opportunity and hence it was taken as no defence evidence
and thereafter the matter was heard and posted for
judgment.
15. Having taken note of the order sheet, which is
produced before the Court by the learned counsel for the
appellant, the very contention of the appellant that no
opportunity was given and not allowed the
defendant/appellant to contest the matter, cannot be
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accepted. Having taken note of the order sheet, it is clear
that on 30.06.2021 vakalath was filed by first advocate.
Thereafter, the subsequent advocate who filed the vakalath
on 30.11.2022 also not contested the matter and even not
filed the written statement and objections. Even when the
plaint was amended, an opportunity was given to file the
additional written statement and the same was not filed and
thereafter even for leading evidence of the defendant also an
opportunity was given and the said opportunity is also not
utilized. It is important to note that the defendant is not a
layman and she is doctor, who is running the hospital and
according to the defendant, the building was constructed and
running the hospital in the very same building, but not made
any efforts to file the written statement and contest the
matter. It is important to note that the advocate who filed
the vakalath on 30.11.2022 also did not cross examine the
witnesses subsequent to entering into appearance and the
judgment was pronounced on 17.06.2023 and an application
was filed on 14.06.2023 after 8 months of entering into
appearance before the Trial Court for reopening the case and
the same was rejected having taken note of the opportunity
was given to the appellant. The very same advocate filed the
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appeal before the First Appellate Court. The First Appellate
Court also having considered the material on record, in
paragraph No.20 taken note of all the factors and comes to
the conclusion that the appellant has not made out any
ground.
16. The learned counsel for the appellant relied upon
the judgment of the Apex Court passed in Civil Appeal
No.4151/2022 referred supra wherein, the Apex Court
having considered the grounds which have been urged, set
aside the order of the Trial Court by entertaining the
application filed under Order 9 Rule 13 of CPC setting aside
the judgment and the same was reversed by the Apex Court
referring the judgment in the case of Sangram Singh
(supra). Now considering each facts and circumstances of the
case, the Court has to look into whether an opportunity is
given or not. I have already pointed out that an opportunity
was given from 30.06.2021 and the judgment was
pronounced in 2023. The appellant even engaged two
counsel before the Trial Court, but did not choose to file the
written statement and did not cross-examine the witnesses
even after engaging the new counsel. Even after engaging of
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the new counsel, P.W.1 was further examined and additional
documents are marked, but the defendant did not file the
additional written statement and also not cross-examined the
witnesses. When such being the case, the very contention of
the learned counsel for the appellant that the matter may be
remanded to the Trial Court cannot be accepted. The
judgment relied upon by the learned counsel for the appellant
is not applicable to the facts of the case on hand, since ample
opportunity was given to the appellant to contest the matter
for a period of two years even engaging two counsel before
the Trial Court.
17. The learned counsel for the appellant also relied
upon the judgment of the Apex Court in the case of Rafiq
(supra), wherein the Apex Court discussed with regard to the
responsibility of the advocate and the same has been
discussed in paragraph No.3 i.e., in respect of a case which is
pending before the Appellate Court. In the case on hand, the
factual aspects are different. When the matter was before the
Trial Court and engaged two counsel before the Trial Court,
nothing is done being a doctor who is running the hospital in
the very same property after constructing the building after
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obtaining the sale deed dated 31.08.2017. The material is
very clear that earlier there was a partnership deed dated
02.01.2017 and the same was dissolved on the previous day
of the sale deed i.e., on 30.08.2017 and on the very same
day, one more partnership deed came into existence. It is
astonishing that on the very next day i.e., on 31.08.2017, the
alleged sale deed of Ex.P.37 came into existence and what
made to have the sale deed on the very next day after
entering into a new partnership, which was registered before
the Registrar of Partnership, no explanation on the part of the
appellant. When such being the material available on record
and when both the Courts have taken note of the material on
record and given an opportunity and opportunity has not been
utilized by the appellant, now the question of remanding the
matter for fresh consideration does not arise. The Court
cannot grant such relief on the whims and fancies of the
appellant. The appellant being a doctor who is running a
hospital in the very same building, cannot seek for remand in
the second appeal to set aside the matter and fix time bound
trial and give direction to dispose of the matter on merits,
since the appellant is enjoying the property by obtaining the
sale deed on the very next date of new partnership. Hence, I
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do not find any ground to admit the second appeal and frame
any substantial question of law.
18. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
