Karnataka High Court
Sri. Thulasi @ Thulasiram vs Sri. K. Nagarajan on 18 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.52864 OF 2017 (GM-CPC)
BETWEEN:
SRI THULASI @ THULASIRAM
S/O. LATE SRI M. KANNAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT NO.190,
4TH CROSS, BHASHYAMNAGAR,
SRIRAMAPURAM,
BANGALORE - 560 021.
... PETITIONER
(BY SRI T.V. VIJAY RAGHAVAN, ADV.)
AND:
1. SRI K. NAGARAJAN
S/O. LATE SRI KRISHNAMURTHY V.,
AGED ABOUT 52 YEARS,
RESIDING AT NO.479,
SAMMAN SHARAVATHI STREET,
JARGANAHALLI,
J.P. NAGAR POST,
BANGALORE - 560 078.
2. SMT. RASHMI
W/O. SRI K. NAGARAJAN,
AGED ABOUT 43 YEARS,
RESIDING AT NO.479,
SAMMAN SHARAVATHI STREET,
JARGANAHALLI,
J.P. NAGAR POST,
BANGALORE - 560 078.
... RESPONDENTS
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE
AT BANGALORE RURAL DISTRICT, BENGALURU, IN O.S. NO.141
OF 2008 DATED 12-10-2017 ANNEXURE-A ON THE APPLICATION
FILED UNDER ORDER XVIII RULE 17 READ WITH SECTION 151 OF
CPC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/plaintiff has filed the present petition against the order dated 12-10-2017 on I.As made in O.S. No.141 of 2008 allowing the applications filed by defendants No.2 and 3 under Section 151 of the Code of Civil Procedure and under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure with cost of Rs.300/- each.
2. The plaintiff filed a suit for specific performance to enforce the agreement dated 3-5-2006. On 28-6-2007, the present respondents purchased the property from defendant No.1 during the subsistence of aforesaid agreement to sell. Thereafter, the petitioner filed O.S. No.141 of 2008 to enforce the agreement and 3 also to declare the sale deed dated 28-6-2007 as null and void and also for alternative relief of refund of the advance amount. The defendant No.1 engaged a counsel to contest the matter, but did not file the written statement. On 25-7-2009, the suit came to be decreed directing to refund the partial advance amount.
3. Aggrieved by the said judgment and decree, the plaintiff filed R.F.A No.877 of 2009. After hearing both the parties, this Court by the judgment and decree dated 6-4-2015, allowed the appeal and remanded the matter to be dealt with in accordance with law. After remand, the respondents/defendants No.2 and 3 filed two applications, one under Section 151 of the Code of Civil Procedure to reopen the case and another application under Section XVIII Rule17 read with Section 151 of the Code of Civil Procedure to recall the evidence of P.W.1 contending that the defendants have not cross-examined P.W.1. After disposal of the suit, the plaintiff has filed Regular First Appeal in R.F.A. No.877 of 2009 which came to be 4 disposed of with a clear direction for framing an issue "whether defendants No.2 and 3 prove that they are bonafide purchasers for value of the property without any knowledge of the earlier transaction as between the plaintiff and defendant No.1".
4. In view of the said order, defendants No.2 and 3 have led their evidence, in order to establish their case, they have to cross-examine P.W.1. Therefore, applications filed to reopen and to recall the evidence of P.W.1 for further cross-examination and no hardship will be caused, if the applications are allowed. If applications are not allowed, defendants No.2 and 3 will be put to great hardship. Hence, they sought for allowing the applications. The said applications were opposed by the plaintiff by filing separate objections and contended that the applications filed are only to drag the proceedings and it is for the defendants to establish their case on their own and sought to dismiss the applications. The trial Court, after considering the applications and the objections filed 5 by the petitioner, by the impugned order dated 12-10-2017 allowed both the applications and permitted defendants No.2 and 3 to cross-examine P.W.1 by re-opening and recalling the evidence. Hence, the present petition is filed.
5. I have heard the learned counsel for the petitioner.
6. Sri T.V. Vijay Raghavan, the learned counsel for the petitioner, vehemently contended that the impugned order passed by the trial Court allowing the applications and permitting to cross-examine P.W.1 is erroneous and contrary to the material on record. He further contended that in view of the judgment passed by this Court on 6-4-2015, defendants No.2 and 3 have to prove that they are the bonafide purchasers for value of the property without any knowledge of the earlier transaction as between the plaintiff and defendant No.1 and there is no need to cross-examine P.W.1 by the defendants. The trial Court ought to have rejected the applications. Therefore, 6 he sought to quash the impugned order passed by the trial Court by allowing the petition.
7. Having heard the learned counsel for the petitioner, it is undisputed fact that the plaintiff filed O.S. No.141 of 2008 to enforce the agreement dated 3-5-2006. The present defendants No.2 and 3 were subsequent purchasers during the subsistence of earlier agreement between the plaintiff and defendant No.1. Though defendant No.1 was served and failed to contest the matter by not filing the written statement, the suit came to be decreed on 25-7-2009 directing defendant No.1 to refund the partial advance amount which is not in dispute.
8. The plaintiff filed R.F.A. N.877 of 2009 against the judgment and decree to refund the partial advance amount. This Court, after hearing both the parties, by the judgment and decree dated 6-4-2015, allowed the appeal and remanded the matter to be dealt with in accordance with law. This Court also recorded a finding that in order to ensure that there is complete justice, an 7 opportunity is granted to defendants No.2 and 3 even at this point to tender their evidence on this aspect, if it is possible. The defendants therefore as a first step have sought permission of this Court to file a written statement. Such a written statement being filed at this point of time on a plain reading of the procedural law is not contemplated. However, since this Court is inclined to remand the matter to enable the plaintiff to urge the case now setup, the written statement to be taken on record, which will then require issues to be framed and only issue that would now remain for consideration by the Court below is, as to defendants No.2 and 3 are the bonafide purchasers. Therefore, this Court framed an issue with regard to defendants No.2 and 3 and further held the findings of the trial Court that the plaintiff was not ready and willing is set aside and also the amount directed to be refunded is also set aside leaving the question open for fresh consideration, if the occasion should arise. The matter was remanded to be dealt with in accordance with law.
8
9. The said order passed by this Court has reached finality. After remand, defendants No.2 and 3 filed two applications, one for re-opening and another for recall. The trial Court, considering the surrounding circumstances held that P.W.1 has not completely cross- examined. Hence, after remand, it is necessary to recall P.W.1 for further cross-examination, and by imposing cost on the applications, it can be allowed. The trial Court allowed both the applications. Though Sri T.V. Vijay Raghavan, the learned counsel for the petitioner, submits that the defendants cannot be cross-examined beyond the issue framed by this Court in the said appeal, it is for the defendants to proceed with the cross-examination of P.W.1. in the observation made by this Court. If defendants No.2 and 3 go beyond the pleadings, it is open for the plaintiff to oppose such question put forth by defendants No.2 and 3. Merely allowing the applications and permitting defendants No.2 and 3 to cross-examine P.W.1, no prejudice will be caused to the plaintiff. 9
10. In the present case, the suit filed for specific performance, the purchasers have to be given an opportunity to substantiate their respective case as observed by this Court in R.F.A. No.877 of 2009. While remanding the matter, this Court specifically held that in order to ensure a complete justice, an opportunity has to be given to defendants No.2 and 3. In view of the same, the impugned order passed by the trial Court does not call for interference. Accordingly, the petition is dismissed.
Sd/-
JUDGE kvk