Karnataka High Court
Manoj Bantia vs U.Devendra on 13 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 1337, 2019 (4) AKR 673, (2020) 1 ICC 288, (2020) 1 KCCR 526
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
R.F.A NO.200072/2018
BETWEEN:
Manoj Bantia S/o Manickchand Bantia
Age: 46 Years, Occ: Business
R/o H.no.1-8-70, Santoshi Apartment
Brahman Wadi, Station Road
Raichur-584101
... Appellant
(Sri Ashok S. Kinagi &
Sri Ajaykumar A.K., Advocates)
AND:
U. Devendra S/o Paguntappa
Age: 46 Years, Occ: Business
R/o 7-90, Chinnipalli, Gattu Mandal
Mehaboob Nagar, Gadwal
Dist. Telengana State
... Respondent
(By Sri Shivanand Patil, Advocate)
This Regular First Appeal is filed under Section 96
of CPC, praying to set aside the judgment and decree
dated 23.09.2017 in O.S.No.73/2017 passed by the Prl.
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Senior Civil Judge, Raichur and remand the matter to
the Trial Court with a direction to dispose of the same
afresh in accordance with law after permitting the
defendant to file his written statement and after
affording reasonable opportunity to the defendant of
being heard and after considering the evidence to be
produced by him.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
Though the appeal is listed for admission, with the consent of the learned both the counsel, the appeal is taken up for final hearing and disposed of by this judgment.
02. This appeal is filed by the defendant in O.S.No.73/2017, a suit for specific performance of contract commenced by the respondent, on the file of the Prl. Senior Civil Judge, Raichur ( for short, 'Civil Court'). The suit is decreed vide impugned judgment and decree dated 23.09.2017, directing the appellant to 3 execute the sale deed in favour of the respondent for the land bearing Sy.No.933, Hissa No.1/5, measuring 01 acre 24 guntas within the revenue limits of Raichur with a further direction to receive the balance sale consideration of Rs.12 lakhs deposited by the respondent with the Civil Court. It is undisputed that the respondent initiated has execution proceedings in E.P.No.73/2017, and the appellant, who was yet to file the present appeal, entered appearance on 09.03.2018 after publication of the notice in a local daily called "Suddhi Mula". The appellant has filed objections inter alia contending that he was not duly served with the notice in the original proceedings and that he could not contest the suit because his brother was paralyzed, and he was looking after him.
03. The Executing Court vide its order dated 19.04.2018, has overruled the appellant's objections and ordered for execution and registration of the sale 4 deed through the Chief Ministerial Officer of the Executing Court. After the orders of the Court on 19.04.2018, the Chief Ministerial Officer, the Court Commissioner appointed by the Executing Court, has executed the sale deed transferring the subject property in favour of the respondent pursuant to the impugned judgment and decree. It is also undisputed that the respondent is in possession of the suit property as per the terms of the sale deed executed by the Executing Court. This appeal is filed thereafter on 06.06.2018.
04. The learned counsel for the appellant contends that the impugned judgment indisputably is because the appellant did not contest the suit. While reiterating the reason offered in the execution case for not contesting the suit, the learned counsel for the appellant submitted that the Civil Court has erred in concluding the trial and passing the impugned 5 judgment post-haste, and the same is borne out by the following sequence of dates:
Date Events
17.06.2017 Date of appearance of defendant
10.08.2017 Written statement not filed
12.09.2017 Case is posted for plaintiff's
evidence. P.W.1 was examined
and got marked documents Ex.P1
to Ex. P9
16.09.2017 P.W.2 was examined
18.09.2017 Defendant's evidence was taken as
Nil
20.09.2017 Arguments were heard on behalf of
plaintiff
21.09.2017 Argument on behalf of defendant
taken as Nil
23.09.2017 Date of Judgment
05. Further, the learned counsel relies upon a decision of this Court in the case of Smt. Sanjeevamma and Others vs. G. Krishna and Others reported in 2004 (3) KCCR 1683 to canvass that the appeal cannot be dismissed solely on the ground that 6 the impugned judgment and decree has been put into execution. The learned counsel submits that even if the impugned judgment and decree is put into execution, if the appellant is able to demonstrate that the impugned judgment and decree are either unreasonable or capricious or perverse, the appellant can seek succeed in the appeal and even for restitution under Section 144 of the Code of Civil Procedure. The learned counsel places the reliance upon paragraph No.9 of the aforesaid decision, which reads as follows;
"The facts of this case are not in dispute. It is not in dispute that after granting a decree by the trial Court, respondents by filing an execution have removed the construction put up by the appellants/ defendants on MNOP portion. It is no doubt true that the decree has been executed, but the question is whether the appellate Court, on the said ground can dismiss the appeal of the appellants without considering the case of the appellants on merits. Appellate Court without considering the provisions of Section 144 of CPC has disposed of the appeal. If the appellate Court on merits had come to the conclusion that the judgment and decree granted by the trial 7 Court shall require to be set aside in such an event appellate Court had every power to allow the appeal and dismiss the suit of the plaintiffs by reversing the judgment and decree of the trial Court. In such an event, appellants were entitled to invoke the provisions of Section 144 of CPC and request the Court for restitution. But in the instant case, appellate Court, without considering the provisions of Section 144 of CPC and the case of the appellants on merit, has dismissed the appeal as having become infructuous. Therefore, this Court is of the opinion that the procedure followed by the appellate Court as bad in law and requires to be set aside. "
06. The learned counsel for the respondent submits that the appellant is not bona fide. The appellant has chosen not to participate in the proceedings, and when he entered appearance in the execution proceedings, he filed objections resisting the execution of the decree. His objections were overturned by the Civil Court by its order dated 19.04.2018. If the appellant was truly bona fide in his conduct, he could have approached this Court in the appeal even at that 8 stage. But, the appeal is filed after a lapse of about two months and definitely after about three months from the date of the knowledge of the execution proceedings. The appellant has admitted the execution of the plaint agreement dated 16.02.2017, and he has no tenable defence as against the specific performance of the appeal. Therefore, the appeal will have to be dismissed not only on the ground that the impugned judgment is put into execution, but also on merits.
07. In the light of the rival submissions, the questions that arise for considerations are;
(a) Whether the appeal should be dismissed on the ground that the impugned judgment and decree for specific performance has been put into execution and a sale deed is executed in favour of the respondent specifically enforcing the plaint agreement dated 16.02.2017?
(b) Whether the impugned judgment calls for interference on the ground that it is unreasonable, perverse or irregularity?
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(c) For what order?
08. The question as to whether an appeal should be dismissed solely because the impugned judgment and decree have been put into execution has been considered by this Court in the decision (supra) relied upon by the learned counsel for the appellant. This Court has held that if an appellate Court comes to the conclusion on merits that the impugned judgment and decree will have to be set aside, the appellate Court will have every power to allow the appeal despite the impugned judgment and decree being put into execution with liberty to the succeeding appellant to seek restitution under Section 144 of the Code of Civil Procedure.
09. The learned counsel for the respondent is unable to point out why this proportion of law would not apply in the facts and circumstances of this case. Therefore, without much ado it should be concluded 10 that the appeal cannot be dismissed solely on the ground that the impugned judgment and decree are put into execution. If the appellant is be able to demonstrate that he could not contest the suit on merits bona fide, and if the reasons offered by the appellant are acceptable, the impugned judgment and decree will have to be set aside and the suit has to be restored to the civil Court to be decided on the merits. If the appellant could succeed in resisting the respondent's suit, the appellant will also be entitled to seek restitution viz. the necessary relief as against the sale deed which is already executed and possession of the subject property.
10. The sequence of dates as placed by the appellant, which are not disputed by the learned counsel for the respondent, shows that on 10.08.2017 the Civil Court recorded that the appellant had no written statement to file and listed the suit for evidence 11 on 12.09.2017. The entire proceedings of trial, including examination of two witnesses and final arguments were completed on 21.09.2017, i.e., within a period of 31 days from the date the civil Court recorded that the appellant did not have Written Statement to file. The impugned judgment is delivered on 23.09.2017. By the mere fact that the entire trial and the arguments are completed within the said 31 days, it cannot be concluded that the civil Court has been either capricious or perverse in rendering its judgment on the ground that the appellant did not contest the claim, especially when it is undisputed that the defendant was served with the summons and he had engaged the counsel to represent. However, the overwhelming question is whether the appellant was indolent, deliberately or otherwise, in not contesting the suit because if the appellant was not indolent, he should be given every opportunity to contest the suit on the 12 merits. The primary objective in law is to adjudicate the matters on merits, without being hyper technical.
11. The appellant is categorical in his explanation that his brother had suffered paralysis. His brother was hospitalized and the appellant was pre- occupied in attending to his ailing brother. This assertion is not seriously controverted, and there is nothing on record to discard the explanation offered. If the reason offered for non-participation is accepted, the non-participation in the suit just over 31 days cannot be construed as deliberate indolence. In an appeal filed against the uncontested judgment and decree, it is open to the appellant to show that he was prevented from just / sufficient cause from contesting the suit.
12. The respondent indeed admittedly is in possession of the subject property and the sale deed dated 24.04.2018 is also executed transferring title of the subject property in his favour, and with the 13 impugned judgment and decree, being set aside and the suit being restored for adjudication on merits, the respondent's title and possession will be subject to the outcome of the final adjudication of the suit. If this be so, the respondent cannot create any third party rights or change the nature of the subject property until there is a final adjudication. The appellant also cannot create parallel title or attempt to disturb the respondent's admitted possession because the impugned judgment and decree are set aside. Therefore, it becomes necessary to direct both the appellant and respondent to maintain status quo as regard the title, possession and nature of the suit property.
13. Thus, in the totality of the facts and circumstances of the case, this Court is of the opinion that the appellant is able to justify with sufficient reasons his non-participation in the proceedings before the Civil Court and that he was not deliberately 14 indiligent. This would be so even if this Court were to take note of the fact that the appellant appeared before the execution Court and contested the execution. The appellant's contest was rejected by the executing Court on 19.04.2018 immediately preceding the ensuing summer vacation. The appeal is filed without undue delay after the Court re-opened after such vacation. Therefore, the appellant will have to succeed in these circumstances. As such, the following;
ORDER
(a) The impugned judgment and decree in O.S.No.73/2017 are set aside and restored to the Board of the Prl. Senior Civil Judge & CJM, Raichur for final adjudication on merits with liberty to the appellant, subject to all just exceptions, to seek appropriate relief insofar as the sale deed dated 24.04.2018, which is already executed pursuant to the impugned judgment and decree now set aside and the possession of the subject property, 15
(b) The parties shall appear before the Court of the Prl. Senior Civil Judge & CJM, Raichur on or before 02.07.2019 without further notice, and the Court shall expeditiously dispose of the suit on merits. The parties shall assist the Court in such expeditious disposal without seeking unnecessary adjournments.
(c) The appellant shall be entitled to file written statement to contest the suit with liberty to the respondent to file rejoinder, if necessary. Further, the respondent shall also be entitled to lead further evidence with liberty to the appellant to lead evidence in support of his defence.
(d) The amount of Rs.12,00,000/- (Rupees Twelve lakhs) deposited by the respondent shall be invested by the Civil Court with any nationalized Bank in fixed deposit for such tenure as may be required in the opinion of the Civil Court.
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(e) The appellant and respondent shall maintain status quo both as regard the title and possession of the property until the final disposal of the suit in O.S.No.73/2017.
(f) The office is directed to refund in full the Court fee paid on the memorandum of appeal to the appellant.
Accordingly, the appeal is disposed of. In view of disposal of main appeal, I.A.No.2/2018 seeking stay does not survive for consideration, accordingly same stands disposed of.
Sd/-
JUDGE BL