Basamma vs Devamma on 13 April, 2011

[Cites 1, Cited by 3]

Karnataka High Court

Basamma vs Devamma on 13 April, 2011

THIS REGULAR SECOND APPEAL IS FILED UNDER.-SECTION
100 OF CPC, AGAINST THE JUDGEMENT 81, DECREE3. DATED;
2.09.2006 PASSED IN R.A.NO.89/2004 ON THE P1LE«j'OEf'--«.T'H_E II
ADDL. CIVIL JUDGE (SR.DN.), BELLARY, DISMISSINGTHE 2=..PPE.AL
AND CONFIRMING THE JUDGMENT AND D.EiCREEv.Cj"*DATED

13.07.2004 PASSED IN OS.NO.397/1997 ON THE "I-TILEV0_iOF THEKII

ADDL. CIVIL JUDGE (JR.DN.), BELLARY_ g ; "

THIS APPEAL COMING ON FOR,'AD:MI0SiSl4Ol§I,i.THIS*IJAYVTIEIE 0'

COURT DELIVERED THE FOLLOWING:

JUDGﬁENTsA"f

This appeal is byithe N0§.i"3<'9iIIV7 of 1997 *s--
a suit on the fileof theA_C_o'Urt Civil Judge [Jr.
Dn.,] at of agreement
dated 3.4.1109? executed by the original
defend2_:ii1II1£\\i'_j, f first defendant and
his wife defendant in favour Of Original

plainj_£iff bi! _ B Chennanagouda, son of

AS the Original plaintiff and Original

dead and gone, the case has remained

I _ either coining on record of the legal heirs of the plaintiff

:b4_rinVging on record the legal heirs of the original

4. It is also the case of the

property in question originally_b.elonge--di"t'o::'Qrie" _
who had purchased the same _o1'1._v'<16-;8-..1_9-431,""as7per__ V

E'.xhibit.P6 as being part, of :25"'c_ents.»'y(;f:'
No.546A/2 and had in turnve:b'een inheritedibyléiddamma
through her fatherwivho Lingappa and
brothers though family, father of
Siddamma heir and there
being no Siddamma had
inherited'.p:i'fgope'I'ty"iandV""SViddamma along with her
husband' the agreement in the year

1991 theggplaintiff having made some efforts and
demand to gctsale deed executed by the defendants, but

successful in View of lukewarm approach of the

got issued a legal notice dated 3.10.1997 ~

E>'ithibi_jt.I-'ilfbut resulting in reply notice dated 9.10.1997 ~

..E,x"hibVi't.:P5 and reply being false and vexatious, the plaintiff

constrained to ﬁle the suit for specific performance of

= .--the agreement and therefore prayed for decreeing the suit.

5. Suit summons it appears was se--ry--ed,Aonsiyi on the

first Defendant -- Siddappa,

Defendant -- Siddamma even as:"per?'_A_Ath'e ein.do:sern'eiritViiinade if

by the process server as also the'--subsequerity vendo*rs'ernent
made by the postal authoi'i.t'i'es as" it i"ap:pefa_rs that the
second defendant -- Siiidsdarrirnaieihadexpiredbasis mentioned

in the order sheet of the the trial court

relating to O23No;;3977_of€19:97"a.s':pevr..rieCord dated. 4.3.1998
where it issued in the name of

the sg;*c"ohde. had been returned with

the postal reported to be dead'. Very

strangely/,e.._'_su,.itiVi some to be decreed ex parte on

&_ not"With__s_t.anding the order sheet of the trial court

' iVndicatinge'asvp_er order sheet dated 4.3.1998

« ""£7rSf'_v»to'eZejv"endant No.1 served.
L'-didefendant no.2 is reported dead.

" Defendant No.1 is called out -- absent

if Placed exparte

it For orders by 12.0398."

6. Submission of Smt. Vidya, learned counsel for
the appellants is that when the plaintiff to

execute the decree in execution proceedin.g'_:si,""thiere

some resistance and later the first defendan'_tapp--ear.s "to

have filed Misc. Case. No.5 of ex."
parte decree on the premiselthzat
counsel by name Rud_ragowdamfoir 'defendinglpintierest of the
defendants, but he and not having
attended the ex parte and

therefore set_ti.ng_as'ide_' the ex parte decree.

_ Case. No.5 of 1999 came to be

allowedand. the. exA'par't.ei"decree was set aside as per order

dated" l..O.4.i200_2' it is not very clear as to by this time

defendant had survived or whether both

origVina'l:d~efer:1:'d"ants had died etc., but recording in the order

sheet «§s*t:"n 12.3.1998 while does indicate that on the

intirnatiion of the death of second defendant, steps have to

taken and on the other hand Mr. JSB, Advocate for the

plaintiff appears to have ﬁled a memo statingﬁthat the
second defendant has no legal heirs and
and the order sheet dated 1.4.1998
that day plaintiff was represented
had remained ex parte, secondiédefendant-is v':deacV}ra1iid"'ipn
this state of affairs suit is neigeitheleissi.1_i:stedV.2:1?prWrecording
of evidence as 21.9.1998 on
which day theptrial IA No.1 under
Order VI 'of 1' recorded that the
amendment this order is carried out,
but ismlisted for filing of amended
plaint 17.10.1998. On 17.10.1998,

PW4.;1"is. exarmnied, 1i',xhibit--P series documentary evidence

mar.2ked;«.._After hearing arguments, suit is set down for

Judgment is pronounced on 26.10.1998,

deicreed: .e'x"parte and it is thereafter suit was restored to file

'asnotiiced in the order sheet and it was directed to be listed

steps on 10.4.2002 and as per order on 17.4.2002, the

Vwtrial court noticed that while steps were required to be

taken in respect of deceased second -i..:fir'st

defendant also was dead by thenmand t.11'eref:o_re""stepsvvereﬁ

required to be taken in respect»..of0'=bioth- ideffen~deantsL''--.. -:

However, the trial court noticed
vakalath for the plaintiff. T1ie«.ior'dVer shcet'date:d 29.5.2002

does indicate that ".was represented by

Advocate -- KKR, represented by
Advocate -3: as against second
defendanit.:ppC-::rui';I_ii/V51. XXII Rules 1 81, 4 of
CPC:'to"'b'ring' tfife"*1ega1'- neitfswaf the deceased defendants,

noticeiuvvlas representatives of defendants 1
and 2 returnableftpby 29.6.2002 and thereafter though no

legal" heirs 'came on record, the trial court has passed

.Qfders"ija1i§eW_1ng Ii1$i'ii10\Io.2 as per order dated 14.8.2002 as the

.2 not resisted and permitted the amendment

to-.__be__vmadei to the plaint to depict this position. Though

Apordeirvvesheet indicates that amended plaint was filed on

.,,."_=17j..9.2002 and copy served [on whom it is not known]

0' ___5written statement was required to be filed by 9.10.2002.

Vé/.

10
On 9.10.2002, position was that the Presiding Officer had

been transferred and therefore the case to
12.11.2002. 2 if
8. Strange are the waysrof

procedures. The order sheet_'recaor.d:s~.that
first defendant prays timeiivariid sheet.
First defendant has June 2002,
hence writtenpVstate1ne_rit..VV ﬁled, call on
22.11.2002 at the request of
counsel 12002 and 9.12.2002 and
on placed a memo stating
that this time having died on

11.12.2002' and"e'ase wes directed to be called on 11.1.2003

Very strangely, thereafter the order sheet

V2Vt::ov""show that the second defendant who had

already. 'died in respect of whom steps were required to be

'tak4en,2"'but not taken, was shown as absent on and after

.2 though order sheet had indicated that suit had

11p

abated as against the second defendant
the order sheet dated 14.8.2002.

9. It is in this state of

the learned 'Presiding

facts and law had con-t'inuedr-'to-ﬂabbple wiith~t.he'Esuit and in

between it appears of counsel for the
first defendantsi't_hO1lgh'*.e57§ﬁ' *A}r£.:,}f1'§i'ii\fii.ri$:.iit::'~'iiCiefendant was no
more by for the second
defendanti_AVx?hoi§,{fl$ 9 gone and no steps having

been

,--.],O. the order sheet also indicates

that, counsel "who_____had been changed by then for the

~defenda'nt'«.V:fir'or__n original KV to ACS has cross examined

pi;éﬁntiif1'«'":_wit~§:é§s PW.1 on 25.11.2003 and PW.2 on

27i:i11.25..OO3f and it appears said Advocate ACS has filed

powei of attorney of the defendant on 1 1.12.2003.

56/

sale consideration amount and an if

5_ agreement dated 3.4.l'991"?« A_ "
Whether plaintﬁ proijesltthat,ihxhe». is

6 possession and' 'enjoyment of Athegﬁsuit
property from the diatieof sale..a'gwre.en*rent?

Whether plaintiffrtplroiiesiithat, is ready
and willing "to.ip_erfor:fn hislparty of contract?

Whether pvla-iinti/3*' iprotves'v_th'a,i,' defendants
ha.ve«.i_fa.iled. to .e'xecute_'~.thejregistered sale
deed his favo_urP_.. j V
::'Wh_e--ther'--.__ yd-eferid_ants._ prove that, one
8' Sarvci;rnar.gala'n1ma' her husband
hhhh H"Mﬁingtiiahil'uiere owner and possessor of
._ the 's::it'prop.erty? -l
A _Whethe7=.defe'ndq_nts prove that, 5 years ago
gas on i'he,.d'a:te of written statement suit
_9- property iv_as~'sold in favour of one Maranna
V 'V by'"Sarvarnangalamma?

_ _ lW_hether defendants prove that, said
i " _Mairanna is in possession and enjoyment of
f'v_the~s'uit property?

11"'-.AWihether plaintiff is entitled to the relief
sought for?
What order and decree?

H 1 3.

nlhme B' While one legal heir of the deceased plaintiff by

Eshwaragowda deposed as PW.l, another witnes%/

15. Ways of our legal lsgstem are rather strange. We
have become slaves to procedure forgetting of
the matter, particularly, the provisions__'-bf
Procedure Code, 1908 weighingheavily by
Judges and what with knee jerk
these provisions resulting in rather
than paving way for appsatisfactory'--~..r.esoi1ution...»of disputes

brought before the couirtja I

16. provisions of Order
XVIII Ruleii Code, 1908, a party is
enabled to before the court through an
by appearing and deposing on

oath' ;before the '

affidavit is one prepared by the

lawyer, in his/her chambers and not necessarily a

*-.,staternen'1t of the witness, though an affidavit is a sworn

i"'s'taternent. As We noticed in the present case, chief

_He__xiamination of the witnesses for the plaintiffs as well as

short sighted amendment carried out to the
Procedure, l908 and it can no more be
of witness in chief examination} orig
acceptable. 1 A' '- -- "

19. Though there of cross
examination, it falls t'he_r:e"quiredi'standards and
expectations asppno witne:ss_ immediately
after his he is thoroughly
prepared in cross examination

and may whole truth at all!

20. legal;_sy.st'em, particularly, in the domain of

adversary' ulitigation_,_¢.calls for a thorough overhauling and

.iCode.p'Qf_ii"Ci_Vil Procedure, 1908 also calls for a crying

atferlitiovnbanditthe need for setting right the procedural

methods ~fofbe followed and adopted by the courts.

ii Be that as it may, learned trial Judge, on

appreciation of the documentary evidence on behalf of the

plaintiff being Exhibits.Pl to P21, though answered issues
2 to 9 in the affirmative and answered issue Nos:.'~.i1:'ja_gn.d 10
in the negative, in View of the answers to
and 9 holding that the property in. of.
Sarvamangalamma as was
statement, declined to grantidiecree forV:specifichpver'formance

and therefore dismissed the

22. It is as against and decree, the
plaintiff theirlovwer'"appellate court, but
without V:1'eiiarr;eid Judge in the lower
appellate co_Li1r'tv.w}3_o<hadgiformulated the following two points
for consideration:. 2

4:21'; "ll/l/heV_ther the trial court is erred in holding that,
the respondents/ defendants are not having

g aiienable right and title to the suit schedule " p'r'Qp"erty so as to make speciﬁc performance of " " « co nztract?

2. "Whether the impugned Judgment and decree " 1 needs to be interfered with? §/ 23

26. To say the least, appeals that I have ever which the trial has gone desired, not only about the our Judges in the trial court. that we adopt as part of the? per the pleadings in the plaint,Zvﬂéiiritilvfisiicase defendant Siddamrna being who had purchased the land measuring a.b'out. cents in Sy. No.546/A2 way back owner and through whom said 'h.iaasv:ii.nherited the property and also subject suit land._rneasu'r.ing East to West -- 12 yards and North to South and therefore it is Siddarnrna who is the owner gland. iévho is required to execute the sale deed if at all agreement is binding.

27. Though her husband -- first defendant -- Siddappa has joined to sign the agreement even as per the plaint pleadings Siddappa has no saleable interest in the w 25 represented by present legal heirs of the defen~diantg:,"'.ythat cannot have any significance in law etc.,.

29. I ﬁnd this submission' of the statutory provisions; If second defendant abated due to the plaintiffs not record the legal heirs of deceased a happening in law on the eftlugje-hof of any positive order or conducting the proceedings in a i' ' V i i abates, unless that abatement is Seit aside in 'accordance with law, there is no suit in the " _eye___olf law. **** "

present case, the only person who had a title"'or"-saleable interest in respect of suit property even as Ki'H-Lper..plair1tiff's case was only second defendant -- Siddamma suit had abated as against Siddarnma the entire suit

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Karnataka High Court