Disposed

Sri. C. Chikkegowda v. Smt. a. S. Lakshmamma

Karnataka HC28 Aug 2023WP/5415/2018

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions challenging civil court orders regarding an ex-parte decree and condonation of delay. Without interfering with the respective orders on merits due to pending bar council enquiries, the Court directed all parties to appear before the civil court for an expedited disposal of the proceedings.

What did the court decide?

Petitions disposed of without interfering with lower court orders; parties directed to appear for expedited disposal of civil proceedings by September 21, 2023.

Sri. C. Chikkegowda Vs Smt. a. S. Lakshmamma — Execution and Attachment | Karnataka HC (2023)

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1 - NC: 2023:KHC:30508 WP No. 5415 of 2018 C/W WP No. 62047 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD

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WRIT PETITION NO. 5415 OF 2018 (GM-CPC) C/W WRIT PETITION NO. 62047 OF 2016 (GM-CPC)

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IN WP NO. 5415/2018

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BETWEEN:

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SRI. C. CHIKKEGOWDA @ THAMMAIAH DEAD BY LRS

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1(A). SMT. JAYAMMA W/O LATE SRI. C. CHIKKEGOWDA @ THAMMAIAH AGED ABOUT 78 YEARS

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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1(B). B.C. RAMESH S/O LATE SRI. C. CHIKKEGOWDA @ THAMMAIAH AGED ABOUT 59 YEARS

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1(C). B.C. RAGHU S/O LATE SRI. C. CHIKKEGOWDA @ THAMMAIAH AGED ABOUT 55 YEARS ALL ARE RESIDING AT BILAGUMBA VILLAGE KASABA HOBLI RAMANAGAR TALUK & DIST -526-126.

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NC: 2023:KHC:30508 WP No. 5415 of 2018 C/W WP No. 62047 of 2016

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SRI B C RAJU S/O C CHIKKEGOWDA, AGED 47 YEARS, BOTH ARE RESIDING AT BILAGUMBA VILLAGE, KASABA HOBLI-526126 RAMANAGARA TALUK & DIST.

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…PETITIONERS

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(BY SRI. GANGADHARAPPA A V.,ADVOCATE)

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AND:

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SMT. A. S. LAKSHMAMMA W/O C PARAMASHIVAIAH AGE 67 YEARS,

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SRI MADHUSUDHAN ALIAS MADHU S/O C PARAMASHIVAIAH, AGED ABOUT 47 YEARS,

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BOTH ARE RESIDING AT BILAGUMBA VILLAGE, KASABA HOBLI -526 126 RAMANAGARA TALUK & DISTRICT - 526 126.

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SMT P MALATHI D/O C PARAMASHIVAIAH AGE 42 YEARS, NO.74/A, SIR M V LAYOUT ULLAL MAIN ROAD, NEAR ASHRAMA CIRCLE BANGALORE-560056.

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SRI P MOHAN KUMAR S/O C PARAMASHIVAIAH

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AGE 39 YEARS,

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R/AT BILAGUMBA VILLAGE, KASABA HOBLI -526126 RAMANAGAR TALUK & DIST - 526 126.

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…RESPONDENTS

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(BY SRI.ANANT N. MANDAGI, SENIOR ADVOCATE FOR SRI. K.G. SADASHIVAIAH, ADVOCATE FOR R1 TO R4)

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THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 16.08.2017 PASSED BY THE LEARNED ADDL. SENIOR CIVIL JUDGE, RAMANAGARA, ON THE I.A. FILED BY THE PETITIONERS IN MISC. PETITION NO.3/2013 PRODUCED VIDE ANNEXURE-S, CONSEQUENETLY ALLOW THE SAID APPLICATION.

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IN WP NO. 62047/2016

BETWEEN:

SRI. C. CHIKKEGOWDA

@ THAMMAIAH

DEAD BY LRS

1(A). SMT. JAYAMMA W/O LATE SRI. C. CHIKKEGOWDA @ THAMMAIAH

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AGED ABOUT 78 YEARS

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1(B). B.C. RAMESH

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S/O LATE SRI. C. CHIKKEGOWDA @

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THAMMAIAH

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AGED ABOUT 59 YEARS

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1(C). B.C. RAGHU S/O LATE SRI. C. CHIKKEGOWDA @ THAMMAIAH AGED ABOUT 55 YEARS ALL ARE RESIDING AT BILAGUMBA VILLAGE KASABA HOBLI RAMANAGAR TALUK & DIST -526-126.

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SRI B C RAJU S/O C CHIKKEGOWDA, AGED 47 YEARS, BOTH ARE RESIDING AT BILAGUMBA VILLAGE, KASABA HOBLI-526126 RAMANAGARA TALUK & DIST.

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…PETITIONERS

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(BY SRI. GANGADHARAPPA A V.,ADVOCATE)

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AND:

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SMT. A. S. LAKSHMAMMA W/O C PARAMASHIVAIAH AGE 67 YEARS,

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SRI MADHUSUDHAN ALIAS MADHU S/O C PARAMASHIVAIAH, AGED ABOUT 47 YEARS,

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BOTH ARE RESIDING AT BILAGUMBA VILLAGE, KASABA HOBLI -526 126

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RAMANAGARA TALUK & DISTRICT - 526 126.

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SMT P MALATHI D/O C PARAMASHIVAIAH AGE 42 YEARS, NO.74/A, SIR M V LAYOUT ULLAL MAIN ROAD, NEAR ASHRAMA CIRCLE BANGALORE-560056.

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SRI P MOHAN KUMAR S/O C PARAMASHIVAIAH AGE 39 YEARS, R/AT BILAGUMBA VILLAGE, KASABA HOBLI -526126 RAMANAGAR TALUK & DIST - 526 126.

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…RESPONDENTS

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(BY SRI.ANANT N. MANDAGI, SENIOR ADVOCATE FOR SRI. K.G. SADASHIVAIAH, ADVOCATE FOR R1 TO R4)

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THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN MISC PETITION NO.3/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA. SET ASIDE THE ORDER DATED 8.11.2016 IN MISC PETITION NO.3/2013 PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA PRODUCED VIDE ANNEXURE-K TO THE WRIT PETITION, CONSEQUENTLY DISMISS THE IA NO.1 FILED BY THE RESPONDENTS IN MISC.PETITION NO.3/2013.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These petitions are filed by the plaintiffs in O.S.No.676/2006 on the file of the Additional Senior Civil Judge, Ramanagar [for short, 'the civil Court ']. This suit in O.S.No.676/2006, which is for specific performance of the Agreement to Sell dated 21.06.2004, is decreed on 17.12.2008. The respondents [ the defendants in such suit ] have filed the petition in Miscellaneous Petition No.3/2013 under Order IX Rule 13 of Code of Civil Procedure 1908 [ CPC ] with the civil Court for setting aside this judgment and decree. The civil Court by the respective impugned orders dated 08.11.2016 and 16.08.2017 has allowed the respondents' application under Section 5 of the Limitation Act, 1963 condoning the delay of over four years in filing the Miscellaneous Petition No.3/2013 and rejected the petitioners' application for dismissal of the miscellaneous proceedings as not maintainable in law respectively.

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This Court must record that the

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petitioners, who had the advantage of the sale deed executed in their favour in the enforcement proceedings in Ex.P.No.98/2009, have taken possession of the subject property on 06.12.2012 pursuant to the orders in such proceedings, and the respondents have filed the aforesaid proceedings in Miscellaneous Petition No.3/2013 on 07.01.2013. This Court must further record that if the petitioners do not succeed in either of these petitions, the civil Court will have to examine the merits of the reasons assigned for setting aside of the decree dated 17.12.2008, and that because of the interim order granted by this Court in these proceedings, there is no progress in all these years.

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The respondents have filed their

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miscellaneous petition contending that once they were served with the legal notice caused on behalf of the petitioners for execution of the sale deed for the

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properties measuring 3 acres 11 guntas and 3 acres and 20 guntas in Sy.Nos.95/1 and 95/2 of Bilagumba Village, Kasaba Hobli, Ramangara Taluk [ Subject Property ] in performance of the Agreement to Sell dated 21.06.2004, they contacted a learned member of the Bar [their close acquaintance] and handed over all the papers to him with instructions to settle the matter because they had executed the agreement only to secure the amount that they had received as loan from the petitioners. The learned counsel, who knew that the agreement was executed only as a security, assured them that he would bring about a settlement.

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The respondents further contend that they were under the impression that their learned counsel would take necessary measures to have the dispute settled because they had handed over all the papers including the signed vakalath . Even after service of suit summons, they continued to be under the

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impression that the learned counsel would take care of their interest because of the assurance held out and the fact that they had signed all the papers. When they tried to return the amount of Rs.8,00,000/- received by them at the time of execution of the Sale Agreement to the petitioners, they avoided the same on some pretext without disclosing that the suit is decreed.

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The respondents, as regards the commencement of the miscellaneous proceedings after the possession of the subject property was taken pursuant to the orders in the execution proceedings, allege complicity between their learned counsel and the petitioners. They allege that the learned counsel kept them in dark and it was only after possession was taken through the orders of the executing Court that they came to know that the learned counsel had acted in violation of his fiduciary capacity and as

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such, they have initiated action against their learned counsel before the Karnataka Bar Council.

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In fact, the respondents have brought on record that the State Bar Council has initiated enquiry on the petitioners' compliant in D.C.E.No.3/2014, and that such enquiry has culminated with the order dated 05.11.2022 by the Disciplinary Committee of the Bar Council of India with the learned member being suspended for a period of three years under the provisions of the Advocates Act, 1961. It is also brought on record that in the proceedings initiated by the said learned member before the Hon'ble Supreme Court as against such order dated 05.11.2022, the operation thereof is stayed.

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The petitioners, with the service of notice

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of the Miscellaneous Petition No.3/2013, have contested the respondents' case as aforesaid as also the respondents' application for condonation of delay

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in filing the petition under Order IX Rule 13 of CPC. They have filed an application under Section 151 of the CPC contesting the maintainability of the petition. The civil Court by its order dated 16.08.2017¹ has rejected the petitioners' application for dismissal of the miscellaneous proceedings as not maintainable observing that merely because the respondents have entered appearance through their counsel in the suit in O.S.No.676/2006, it cannot be said that the judgment and decree dated 17.12.2008 therein is a decision on merits when it is uncontested that they have neither completed the pleadings nor lead evidence. The civil Court's reasoning in this regard reads as under:

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"15. This Court would like to rely on decision of Hon'ble High Court of Karnataka in ILR 1997 KAR 1909 (Ansari Sakeenabi -V/sMaligi Modeens). In the above said case it has been held that, "due to non-appearance of contesting defendants at subsequent

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1 The writ petition in WP No. 5415/2018 is filed calling in question this Order dated 16.08.2017.

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stages in the suit and on his failure to lead the evidence if the judgment and decree is passed then, it has to be considered as exparte decree and not as a decree passed on merits. Hence, the application filed under Order 9 Rule 13 of CPC to set aside the decree in question is maintainable. In the above said case, it has been held that, if the defendants who had appeared before the Court had not led the evidence then, the decree passed is said to be ex-parte decree and not a decree based on merits.

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16. By relying on the principle laid down by the Hon'ble Karnataka High Court cited above, to the case on hand, in the present case, the appellants had appeared before the Trial Court but, at subsequent stages for the reason mentioned in the Miscellaneous Petition they have not appeared and led evidence in the suit and also not filed written statement. Hence, by applying the principle laid down by Hon'ble Karnataka High Court in the above cited case, the judgment passed by the Court in OS 676/06 is considered as an ex-parte decree. As such, this Court views that, the application filed under Order 9 Rule 13 of CPC by the petitioners for setting aside the

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ex-parte decree is maintainable. Hence, based on the said reasoning, Point No.1 is answered in the Negative."

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Sri A.V.Gangadharappa, the learned

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counsel for the petitioners, canvasses that the civil Court's opinion that the petition under Order IX Rule 13 of CPC is maintainable despite the fact that the respondents admit that they were aware of the initiation of the suit in O.S.No.676/2006 with their learned counsel entering appearance on their behalf, is impermissible in law. However, this Court is of the opinion that this grievance must be dealt without much ado in the light of the decision of the Hon'ble Supreme Court in G.Ratna Raj (D) by Lrs. v. Sri

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Muthukumaraswamy Permanent Fund Ltd. and Another² , a decision relied upon by Sri Anant N. Mandagi, the learned Senior Counsel for the respondents.

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2 (2019)11 SCC 301

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The Hon'ble Supreme Court, upon considering the provisions of Order XVII Rule 2 and 3 of CPC in the light of its earlier decision in B.Janakiramaiah Chetty v. A.K.Parthasarathi &

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Ors.³ , has reiterated the proposition that unless a Court records that it is satisfied that the evidence brought on record would be sufficient for disposal of the suit on merits, the decision would be " an ex parte decision" amenable to scrutiny under the provisions of Order IX Rule 13 of CPC. It is not even asserted that the civil Court in the judgment and decree dated 17.12.2008 has recorded its satisfaction that the evidence on record would be sufficient for disposal of the suit on merits. The petitioner’s case as against the maintainability of the Miscellaneous Petition No.3/2013 is belied by this proposition, and therefore, the petitioners cannot succeed in their petition as against the civil Court’s order dated 16.08.2017.

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3 (2003) 5 SCC 641

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As regards the civil Court's order dated 08.11.2016⁴ allowing the respondents' application for condonation of delay, Sri A.V.Gangadharappa submits that the civil Court should not have condoned the delay in the light of the following circumstances:

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[i] The respondents cannot deny

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knowledge of the institution of the suit in O.S.No.676/2006 for specific performance because admittedly their learned counsel entered appearance

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on their behalf in the suit, and crucially, because the fourth respondent, who has tendered evidence in support of the application for condonation of delay, has appeared before the civil Court in the suit on 05.04.2008, when the civil Court,

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4 The writ petition in WP No. 62047/2016 is filed calling in question this Order dated 08.11.2016.

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recording his presence, has directed the parties to settle the dispute in exercise of its power under Section 89 of the CPC.

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[ii] The respondents are served with the notice of the execution proceedings in Ex.P.No.98/2009, and even in such proceedings, the very same learned counsel has entered appearance on their behalf. The respondents’ contention that they had signed multiple vakalaths in favour of such learned counsel is highly tenuous because of the insistency in the evidence in that regard.

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[iii] The fourth respondent has admitted in his cross-examination in the enquiry on the application for condonation of delay that he is active in politics and

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that he has successfully contested the election for a local body and elected the President of such local body for certain time, and that these circumstances demonstrate that he is not a lay person who can feign ignorance of the consequences of not participating in the proceedings

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despite entering appearance.

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Sri A.V.Gangadharappa, relying upon the decision of the Hon'ble Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others⁵ ,

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submits that lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact and in the circumstances emphasized by him, the lack of bona fides in the respondents stands out. These circumstances are overlooked by the civil

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5 (2013)12 SCC 649

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Court and as such, this Court must interfere with the civil Court’s order 08.11.2016.

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These submissions are considered in the light of the parameters highlighted by the Hon'ble Supreme Court in the aforesaid decision and the circumstances emphasized by Sri Anant N. Mandagi. It is settled that the Courts must take a liberal, pragmatic and non-pedantic approach while dealing the application for condonation of delay, and that sufficient cause must be understood with necessary elasticity. It is also settled that substantial justice must be paramount. This Court must also record that it is being called upon to interfere with the civil Court’s impugned orders in exercise of its jurisdiction under Section 227 of the Constitution of India on a set of circumstances contending that they have not been considered, but such consideration is still at large with the proceedings pending before the civil

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Court for enquiry and if there is any observation at this stage, the same would prejudice such enquiry.

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The circumstances emphasized must be

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examined in the light of the above to examine whether this Court can take any exception with the exercise of jurisdiction of the civil Court in condoning the delay. It would suffice for this Court to observe that none of the circumstances emphasized viz ., the receipt of legal notices before the date of commencement of the suit, service of suit summons and notice in the execution proceedings, the fourth respondent's appearance in the suit when the civil Court directed the parties to explore the possibilities of a settlement are disputed.

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The respondents explain that they

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approached a learned member of the bar, who resides in the same locality and familiar with the transaction, and that they were assured that he would pursue

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with the petitioners for a settlement. It is not

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disputed that this learned member of the bar appeared for the fourth respondent in one of the criminal proceedings which ultimately ended in a compromise. The respondents have pursued their grievance against the learned member of the bar despite the delay requiring the Bar Council on India to intervene to exercise its jurisdiction whenever there is delay by the State Bar Council.

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These circumstances do not persuade this Court, at this stage that when the enquiry is still at large in the miscellaneous proceedings, to opine that the civil Court has erred in condoning the delay in allowing the application for condonation of delay. In the light of the afore and given the restrictions within which this Court exercises its jurisdiction under Article 227 of the Constitution of India, and leaving open all the questions touching upon the merits of the petition left open to be decided on the merits, the petitions must be disposed of directing the parties to

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appear before the civil Court on a specific date and call upon the civil Court to expedite its decision on the merits of the petition. Hence, the following:

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ORDER

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(a) The petitions stand disposed of without interfering with the civil Court's orders dated 08.11.2016 or dated 16.08.2017 leaving open all questions open for consideration insofar as they touch upon the merits of the miscellaneous proceedings to be considered with due opportunity to the petitioners and the respondents, and if necessary, after recording further evidence.

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[b] The petitioners and the respondents, without further notice and

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notwithstanding any date that they may have been granted by the civil Court pending these petitions, shall appear

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before the civil Court on 11.09.2023 and the civil Court shall take all such measures as may be necessary for expedited conclusion of the proceedings. The civil Court under all circumstances shall dispose of the proceedings before 21.09.2023.

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The registry is directed to transmit the records

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to the civil Court expeditiously.

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SD/JUDGE

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SA ct:sr

Sri. C. Chikkegowda v. Smt. a. S. Lakshmamma

Case brief

What is this about?

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Sri. C. Chikkegowda v. Smt. a. S. Lakshmamma

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