Dismissed

Sri M Tulasidas v. Sri M.K. Gowtham Chand

Karnataka HC12 Nov 2024MFA/2764/2014

Case brief

AI extract

What is this about?

Appeal against dismissal of an Order 9 Rule 13 petition seeking to set aside an ex parte decree in a specific performance suit. The High Court found no material substantiating the defendant's claimed ill health, noted his gift deed and conduct avoiding contest, and dismissed the appeal.

What the court decided

AI extract

Sri M Tulasidas Vs Sri M.K. Gowtham Chand — Specific Performance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2764/2014 (CPC)

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BETWEEN:

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SRI M.TULASIDAS, AGED ABOUT 66 YEARS, S/O M.N.MUDDANNA, NO.244, VENKATESHWARA KRUPA, 6^TH MAIN, 4^TH BLCOK, JAYANAGAR, BANGALORE-560011.

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… APPELLANT

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(BY SRI M.B.CHANDRA CHOODA, ADVOCATE FOR SRI K.C. SHANTAKUMAR, ADVOCATE)

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AND:

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SRI M.K. GOWTHAM CHAND, AGED ABOUT 56 YEARS, S/O LATE M.K.DHARIWAL, NO.12, R.T.STREET, BANGALORE-560053.

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MRS. ANITHA R.BOHRA, AGED ABOUT 44 YEARS, W/O M.RAJENDRA, RESIDING AT NO.228, SEPPINGS ROAD, BANGALORE-560001. … RESPONDENTS

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(BY SRI KIRAN S. JAVALI, SENIOR COUNSEL ALONG WITH SRI CHANDRASHEKARA K., ADVOCATE FOR C/R1; R2 - IS SERVED, BUT UNREPRESENTED)

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THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(d) OF CPC, AGAINST THE ORDER DATED 25.01.2014 PASSED IN MISC.NO.100/2010 ON THE FILE OF THE V ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 13 OF CPC, TO SET ASIDE THE ORDER DATED 19.09.2009 IN O.S.NO.7217/2008.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.11.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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CAV JUDGMENT

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Heard the learned counsel for the appellant and the learned counsel for the caveator/respondent No.1.

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This appeal is filed challenging the dismissal order dated 25.01.2014 passed in Misc.No.100/2010 filed under Order 9 Rule 13 of CPC, on the file of the V Additional City Civil Judge, Bangalore (CCH-13).

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The factual matrix of the case of the appellant/defendant is that the respondents/plaintiffs had filed a suit stating that the defendant executed the agreement of sale and agreed to sell the property bearing No.244, 6^th Main, 4^th Block, Jayanagar, Bangalore measuring east to west 60 ft. and north to south 40 ft. consisting of construction in the said property for sale consideration of Rs.2,25,00,000/- and on the

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date of agreement an amount of Rs.1,95,00,000/- was paid.

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The time for completion of the sale deed was agreed for 14 months. The plaintiffs also agreed to clear the loan to ICICI Bank payable by the defendant in respect of the property in question. It is also claimed by the plaintiffs that ground floor rear portion of the property has been handed over and also claims that agreed to deliver front portion ground floor, I floor and II floor. The plaintiffs filed O.S.No.7127/2008 for the relief of specific performance and notice was served on the appellant/defendant and he did not file the written statement when the case was set down for filing of written statement. Later, the case was posted for evidence of the witnesses and P.W.1 was examined, but was not cross-examined and the Trial Court heard the matter and passed the judgment and decree. However, it is contended that in the suit, the learned counsel filed the memo for retirement and the same was not accepted.

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Being aggrieved by the judgment and decree, the appellant/defendant filed Misc.No.100/2010 under Order 9 Rule 13 of CPC on the ground that he was old aged and he was not keeping well and was on treatment from 25.12.2008 to 19.09.2009 and he underwent surgery on 20.10.2009 and he

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was discharged from the hospital on 23.10.2009 and requested the Trial Court to set aside the exparte judgment and decree and the same was dismissed. The plaintiff filed the Execution No.95/2010 and deposited the balance sale consideration and sale deed was executed, but possession was not handed over and this Court granted the stay of delivery of possession.

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The learned counsel for the appellant would vehemently contend that the Trial Court committed an error in dismissing the Misc. petition. Inspite of reason was stated that he was under treatment and could not appear and file the written statement and contest the matter, the same has not been considered and the very order passed by the Trial Court is erroneous. Inspite of sufficient cause is shown, the Trial Court committed an error in dismissing the same when he was prevented with sufficient cause since he was suffering from ill health and the findings given by the Trial Court is erroneous and hence it requires interference of this Court.

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The learned counsel for the appellant in support of his contentions he relied upon the judgment of the Hon’ble Apex Court in the case of ARJUN SINGH v. MOHINDRA KUMAR

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AND OTHERS reported in AIR 1964 SC 993 and brought to the notice of this Court paragraph No.8 wherein the Apex Court distinguished the provision under Order 9 Rule 7 and Order 9 Rule 13 of CPC regarding good and sufficient cause.

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The learned counsel also relied upon the judgment of this Court in the case of TUNGAVVA AND OTHERS v. TARAVVA AND OTHERS reported in ILR 1978 KAR 1035 and brought to the notice of this Court paragraph Nos.2 and 10. In paragraph No.2 it is discussed regarding similar set of facts, passing of judgment. In paragraph No.10 it is held that justice delayed is justice denied and justice hurried is justice buried and also deprecated such short trips and dubious disposal of suits by the subordinate Courts, which result in grave failure of justice.

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The learned counsel also relied upon the judgment of

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this Court in the case of N.P. SIDDAIAH v. M/S. K. GOPAL AND SONS reported in AIR 1985 KAR 175 and brought to the notice of this Court paragraph Nos.9 to 11, wherein discussion was made with regard to scope of Order 9 Rule 13 of CPC and also sufficient cause for non-appearance and held that there was

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a sufficient ground for the revision petitioner for nonappearance.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of SUSHILA NARAHARI AND OTHERS v. NANDAKUMAR AND OTHERS reported in (1996)

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5 SCC 529 and brought to the notice of this Court paragraph No.4, wherein the exparte decree was set aside and the Trial Court was directed to give opportunity to the appellants to crossexamine the witness examined by the respondents of the suit and also adduce evidence on her behalf.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of G.P. SRIVASTAVA v. R.K. RAIZADA AND OTHERS reported in AIR 2000 SC 1221 and brought to the notice of this Court paragraph No.8 wherein it is observed that even if the appellant was found to be negligent, the other side could have been compensated by costs and the exparte decree set aside on such other terms and conditions as were deemed proper by the Trial Court.

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The learned counsel also relied on the judgment of the Apex Court in the case of SHANTILAL GULABCHAND

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MUTHA v. TATA ENGINEERING AND LOCOMOTIVE

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COMPANY LTD. AND ANOTHER reported in (2013) 4 SCC 396 and brought to the notice of this Court paragraph Nos.8, 9 and 13, wherein discussion was made with regard to scope of Order 8 Rule 10 of CPC.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of RAJINDER KUMAR v. KULDEEP

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SINGH AND ANOTHER reported in (2014) 15 SCC 529 and brought to the notice of this Court paragraph Nos.16 to 20, wherein it is discussed with regard to not filing the written statement and even if written statement is not filed, the Court has to consider the material on record while granting the relief of decree as sought.

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The learned counsel also relied upon the judgment of

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the Apex Court in the case of MAYA DEVI v. LALTHA PRASAD reported in AIR 2014 SC 1356 and brought to the notice of this Court paragraph No.28 wherein also discussion was made with regard to the filing of the written statement and stopped appearing and suit was proceeded exparte and also discussed regarding Order 8 Rule 10 of CPC and the same does not invite a

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punishment in the form of an automatic decree and the same must be considered on merits.

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The learned counsel also relied on the judgment of

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this Court in the case of M. NAGESH SUVARNA v. SRI

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NARAYANA reported in ILR 2016 KAR 4252 and brought to the notice of this Court paragraph No.15 wherein observation is made by this Court regarding sufficient reason is given and delay has to be condoned taking into note of the appellant coming from rural background.

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Per contra, the learned counsel for the

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caveator/respondent No.1 in his argument would vehemently contend that an amount of Rs.1,95,00,000/- was paid out of Rs.2,25,00,000/- and the fact that the appellant/defendant appeared before the Court on 25.11.2008 is not in dispute and date was fixed for filing of the written statement, but not filed the written statement and adjourned the matter for the plaintiffs’ evidence to 13.04.2009 and in the meanwhile, not filed the written statement and contested the matter. The learned counsel contend that the Court has to take note of the conduct of the defendant, who had executed the gift deed in favour of his

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son on 02.02.2009 instead of filing the written statement and

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based on the said gift deed, his son entered into a sale agreement with one Satish by taking Rs.50,00,000/- on 24.03.2009. The evidence was recorded on 13.09.2009 and judgment was passed on 19.09.2009 and depositing the balance consideration, sale deed was also obtained. Inspite of having the knowledge about the suit and also filing of the execution petition, he has refused to receive the notice in the execution petition and the Court has to take note of the said conduct of the defendant. The learned counsel contend that the appellant had also filed a criminal complaint PCR and after the investigation, the police have filed the ‘B’ report and apart from that, set up his son to file the suit for the relief of partition in O.S.No.2930/2010 and the wife of the respondent had borrowed loan on the basis of gift deed executed by the respondent and contend that he is not entitled for any relief.

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The learned counsel for respondent No.1 relied upon the judgment of the Apex Court in the case of PARIMAL v. VEENA ALIAS BHARTI reported in (2011) 3 SCC 545 and brought to the notice of this Court the discussion made about scope of Order 9 Rule 13 of CPC in paragraph No.10 and also

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brought to the notice of this Court paragraph Nos.21, 22 and 23 wherein an observation is made that no attempt has been made by the respondent wife to examine the postman even though an allegation is made that there had been a fraud or collusion between the appellant and the postman and set aside the judgment of the High Court and hence he is not entitled for any relief.

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Having heard the learned counsel for the appellant and the learned counsel for respondent No.1, it is not in dispute that there was an agreement of sale. But it is the contention of the appellant that it was not a sale transaction and it was a loan transaction. The learned counsel for the appellant in the course of argument contend that the appellant has not received the amount as contended by the respondents/plaintiffs. Instead of proving the same by filing the written statement and contesting the matter, the appellant adopted the method of executing the gift deed in favour of his son after he made an appearance before the Trial Court. It is important to note that it is the main contention of the appellant that he was suffering from ill health and he was subjected to surgery on 20.10.2009 and he was in the hospital for a period of 3 days till 23.10.2009 and the case

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was set down for filing of the written statement in the month of January 2009, though he had appeared in the month November 2008. It is his contention that he was suffering from ill health from 25.12.2008 to 19.09.2009 and to substantiate the same, no material is placed before the Court. It is important to note that instead of contesting the matter, a suit was filed in O.S.No.2930/2010 by the son of the appellant and got the partition and the Court has to take note of the conduct of the appellant. The son based on the gift deed entered into a sale agreement with one Satish. It has to be noted that the appellant did not file the written statement, but he executed the gift deed on 24.03.2009 and in order to execute the gift deed, there was no ill health and only for filing the written statement and contesting the matter, he pleads for ill health. The Trial Court in detail discussed the same whether sufficient cause has been shown to set aside the judgment and decree. The fact that he had appeared and he did not choose to file the written statement is not in dispute. The appellant had appeared on 25.11.2008 and within 30 days he has not filed the written statement and even the Trial Court also discussed the time period for filing the written statement 30 days and maximum 90 days and instead of

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filing the written statement, he had created the document and also the fact that under Order 8 Rule 10 of CPC when the defendant failed to file the written statement within 90 days, the Trial Court proceeded to pass the order.

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It is important to note that when he had pleaded ill health, this Court observed that no material is placed except that he underwent surgery and he was admitted only for three days and before that he created the document in favour of his son and his son also executed the sale agreement and also got filed the suit, but no action was taken either to file the written statement or for recalling the witness and cross-examining the witness and if really the transaction is only a money transaction, as contend by the appellant in his petition, there was no hindrance for him to prosecute the original suit in a proper manner. Instead of doing the same, he had indulged in creation of document. He admitted the agreement of sale and sale consideration of Rs.2,25,00,000/-, but though he contend that he did not receive any amount, he did not place any material. Instead of taking specific defence and placing cogent evidence, he executed gift deed in favour of his son in respect of the disputed property and got filed the suit through another son for

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partition and the fact is that other family members are also consenting witnesses to the sale agreement. These materials were taken note of by the Trial Court while considering the material on record. The Trial Court also taken note of the fact that he went and took treatment in Nelamangala inspite of he is the permanent resident of Jayanagar and also taken note of that he had indulged in creation of documents for the purpose of filing the petition and in paragraph No.11 discussed and taken note of the conduct of the appellant. When such material is available before this Court, this Court do not find any reasons to come to a other conclusion. The principles laid down in the judgments referred supra by the learned counsel for the appellant there is no dispute with regard to scope of Order 9 Rule 7, Order 9 Rule 13 and Order 8 Rule 10 of CPC and also showing of sufficient cause. In the case on hand, when an opportunity was given, he did not utilize the opportunity and date was fixed for filing of the written statement on 01.01.2009 and from 01.01.2009 till the date of decree i.e., 19.09.2009, not made any efforts either to file the written statement or to file an application for recalling the witness and cross examine the witness and only an effort was made to file the petition in 2010

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and he was able to create the document in favour of his son only with an intention to offshoot the suit for specific performance, but not contested the same. In the absence of any sufficient cause, the question of exercising the discretion and exercising the power under Order 9 Rule 13 of CPC does not arise and there is no merit in the appeal.

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