Karnataka High Court
Sri. Ningaiah vs Sri. M. Hanumanthraju on 17 July, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.27214/2017
AND
WRIT PETITION NO.29108/2017(GM-CPC)
BETWEEN:
1. SRI. NINGAIAH,
S/O. LATE GAVISIDDAIAH,
AGED ABOUT 65 YEARS,
2. SMT. SIDDAGANGAMMA,
D/O. NINGAIAH,
AGED ABOUT 43 YEARS,
3. SMT. GOWRAMMA,
D/O. NINGAIAH,
AGED ABOUT 41 YEARS,
4. SMT. KAMALAMMA
D/O. NINGAIAH,
AGED ABOUT 39 YEARS,
5. SRI. ANDANAIAH,
D/O. NINGAIAH,
AGED ABOUT 37 YEARS,
2
ALL THE PETITIONERS ARE
RESIDING AT SHANTHAPURA VILLAGE,
HEBBUR HOBLI, TUMKUR TALUK,
TUMKUR DISTRICT-572 120.
... PETITIONERS
(BY SRI H. R. SANJEEV GOWDA, ADVOCATE)
AND:
SRI. M. HANUMANTHRAJU,
S/O. LATE HUCHARANGAIAH,
AGED ABOUT 38 YEARS,
RESIDING AT:
BANNIKUPPE MAJRE,
SHANTHAPURA VILLAGE,
HEBBUR HOBLI, TUMKUR TALUK,
TUMKUR DISTRICT-572 120.
... RESPONDENTS
(BY SMT. DEEPA, ADVOCATE FOR
SRI P. M. MUNIRAJU, ADVOCATE FOR C/R)
****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 14.6.2017 PASSED
BY THE I ADDITIONAL CIVIL JUDGE (JR. DVN) AND JMFC,
AT TUMKUR i.e., ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
3
ORDER
The defendants filed the present writ petitions against the order dated 14.6.2017 on I.As made in O.S. No.713/2013 dismissing the applications filed by the defendants under Section 151 of Code of Civil Procedure, 1908 to re-open the case and recall the order dated 5.7.2016 and permit the defendant Nos.1,2,3 and 5 to lead their evidence.
2. The plaintiff filed the suit for specific performance to enforce the registered agreement dated 23.11.2011 against the defendants in respect of the suit schedule property, contending that the defendants are the absolute owners in possession of the suit schedule property as co-owners and the defendants have executed agreement of sale in favour of the plaintiff on 23.11.2011 for sale consideration of Rs.1,80,000/- and received Rs.1,50,000/- on the date of the agreement and inspite of the repeated 4 requests and legal notice issued, the defendants have not executed the sale deed and therefore he filed the suit for the relief sought for. The defendants filed the written statement and denied the plaint averments and contended that the defendants have not executed any agreement as alleged and therefore question of enforcement of agreement and executing sale deed do not arise and sought for dismissal of the suit.
3. When the matter was posted for arguments, at that stage, the present defendants filed an application under Order 6 Rule 17 of Code of Civil Procedure, 1908 for amendment of the written statement. That came to be rejected. Thereafter the present applications are filed under Section 151 of Code of Civil Procedure, 1908 to re-open the case and recall the order dated 5.7.2016 and permit the defendant Nos.1,2,3 and 5 to lead their evidence. It is the case of the defendants that after issues were framed, the matter was posted for the plaintiff's 5 evidence and it was recorded and the cross-examination was made and thereafter when the matter was posted on 5.7.2016 to the defendants' evidence, due to the ill-health of the 1st defendant, he could not appear before the Court and therefore the trial Court has taken the evidence of the defendants as nil and posted the matter for arguments. Thereafter the defendants filed the application for amendment of the written statement and the application came to be rejected. Against the said order, the defendants filed Writ Petition No.16348/2017 and the same is pending for adjudication. The absence of the 1st defendant and his counsel on 5.7.2016 was not intentional and it was for bonafide reasons and therefore filed the applications for the reliefs sought for. The said applications were resisted by the plaintiff. The trial Court considering the application and the objections by the impugned order dated 14.3.2017 dismissed both the IAs. Hence the present writ petitions are filed.
6
4. I have heard the learned counsel for the parties to the lis.
5. Sri Sanjeeve Gowda, learned counsel for the petitioners vehemently contended that the impugned order passed by the trial Court rejecting the applications filed under Section 151 of Code of Civil Procedure, 1908 is erroneous and contrary to the material on record. He further contended that the suit filed by the plaintiff to enforce the agreement and the same is denied by the defendants by filing the written statement. The trial court ought to have given opportunity to the defendant Nos.1,2,3 and 5 to lead evidence in support of their case since the rights of the parties in respect of the immovable properties are involved in the present case. The same has not been done in the present case. Therefore learned counsel for the petitioners sought to quash the impugned order by allowing the writ petitions.
7
6. Per contra, Smt. Deepa, learned counsel appearing on behalf of Sri P.M. Muniraju, learned counsel for the respondent/caveator sought to justify the impugned order and contended that the defendants are dragging on the proceedings by filing application after application and therefore the trial Court has rightly the dismissed the applications and therefore she sought to dismiss the writ petitions.
7. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for specific performance to enforce the agreement dated 23.11.2011 against the defendants in respect of the suit schedule property. The defendants have denied execution of the agreement itself. It is also not in dispute that when the matter was posted for arguments, at that stage, the defendants filed application for amendment of the written statement. The same came to be rejected by the trial Court. Against the said order, the defendants filed W.P. 8 No.16348/2017 before this Court. The same is pending for adjudication. It is also undisputed fact that when the matter was posted for defendants' evidence on 5.7.2016, the defendants were not present. Therefore the trial Court proceeded to close the defendants' evidence and posted the matter for arguments. The present applications are filed under Section 151 of Code of Civil Procedure, 1908 to re-open the case and recall the order dated 5.7.2016 and permit the defendant Nos.1,2,3 and 5 to lead their evidence. Since the rights of the parties are involved in respect of the immovable property, the trial Court ought to have given an opportunity to the defendants to putforth their case by leading oral and documentary evidence by imposing reasonable costs. The same has not been done in the present case.
8. For the reasons stated above, the writ petitions are allowed. The impugned order dated 14.6.2017 passed by the trial Court rejecting I.As. filed by defendant Nos.1,2,3 9 and 5 under Section 151 of Code of Civil Procedure, 1908 to re-open and recall the order dated 5.7.2016 is quashed subject to payment of costs of Rs.5,000/- (Rupees five thousand only). Accordingly, I.As filed under Section-151 of Code of Civil Procedure, 1908 are allowed. The defendants shall proceed with the evidence on the next date of hearing without fail. The trial Court is directed to permit the defendants to lead their evidence subject to payment of costs of Rs.5,000/- to plaintiff on the next date of hearing and proceed with the suit in accordance with law.
Ordered accordingly.
Sd/-
JUDGE Gss/-