Allowed

Shri. K. Munishamappa v. Shri. Shaikh Madhar Since Dead by Lrs

Karnataka HC30 Oct 2024WP/14108/2024

Case brief

AI extract

What is this about?

The High Court set aside the Trial Court's order rejecting the defendants' application for adjournment and restored the suit for specific performance. The Court directed the defendants to cross-examine the plaintiff's witness within a short timeframe, subject to payment of cost, after finding them negligent in contesting the suit.

What did the court decide?

Writ petition allowed. Impugned order set aside. Suit restored. Defendants directed to cross-examine PW1 on 22.11.2024 on payment of cost of Rs. 50,000/-.

Shri. K. Munishamappa Vs Shri. Shaikh Madhar Since… — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:43798 WP No. 14108 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 14108 OF 2024 (GM-CPC)

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BETWEEN:

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SHRI. K. MUNISHAMAPPA S/O MUNISHAMAPPA AGED ABOUT 75 YEARS

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SHRI.M.SHIVARAMA S/O MUNISHAMMPA AGED ABOUT 42 YEARS

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SHRI. M. RAMESH S/O MUNISHAMMPA AGED ABOUT 42 YEARS

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ALL ARE RESIDING AT KAADAHALLI VILLAGE, VEMGAL HOBLI KOLAR TALUK KOL.AR 563 101.

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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(BY SRI. JISHAN J. NARAYAN, ADVOCATE FOR SRI. G A SRIKANTE GOWDA., ADVOCATE)

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…PETITIONERS

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AND:

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SHRI. SHAIKH MADHAR (SINCE DEAD BY LRS)

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MUBARAK PASHA S/O LATE SHAIK MADHAR AGED ABOUT 39 YEARS

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SHAIK MUNAWAR PASHA S/O LATE SHAIK MADHAR AGED ABOUT 38 YEARS

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2 - NC: 2024:KHC:43798 WP No. 14108 of 2024

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THE RESPONDENT NO. 1 AND 2 ARE R/AT BANK COLONY MAHALAKSHMI LAYOUT KOLAR 563 101.

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SHAIK MUKTHIYAR PASHA S/O SHAIK MADHAR AGED ABOUT 34 YEARS

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MUJAHID PASHA S/O LATE SHAIK MADHAR AGED ABOUT 33 YEARS

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SHAIK IMRAN S/O LATE SHAIK MADHAR AGED ABOUT 29 YEARS

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SUHANA KAUSAR W/O ALIA BAKASH D/O LATE SHAIK MADHAR AGED ABOUT 26 YEARS

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SMT.SHAHEENA BI AGED ABOUT 60 YEARS W/O LATE SHAIK MADHAR

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THE RESPONDENT NO. 3 TO 7 ARE RESIDING AT SHAINSHA NAGAR KOLAR 563 101.

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…RESPONDENTS

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(BY SRI. S VISWESWARAIAH, ADVOCATE FOR R1 TO R7)

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THIS WRIT PETITION IS FILED PRAYING TO SET ASIDE THE ORDER DATED 22.11.2022 (ANNEXURE-E) PASSED BY THE SENIOR CIVIL JUDGE AND CJM, KOLAR IN O.S NO.138/2020 ON APPLICATION FILED BY THE PETITIONERS HEREIN UNDER ORDER 17 RULE 1 OF CPC AND RESTORE THE SUIT IN O.S NO.138/2020 (ANNEXURE-D) FOR CONDUCTING CROSS EXAMINATION OF PLAINTIFF WITNESSES AND ETC.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC:43798 WP No. 14108 of 2024

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The Defendants in O.S No.138/2020 on the file of Senior Civil Judge and CJM, Kolar, have filed this petition challenging an order dated 22.11.2022, by which an application under Order 17 Rule 1 of CPC was rejected. They have also sought for setting aside the order dated 10.07.2023 passed by Senior Civil Judge, CJM, Kolar in Misc.Ptn No.16/2023, by which their application to stay the executing proceedings Ex.Ptn No.57/2023 was rejected. Likewise, they have sought for setting aside the order dated 15.07.2023, passed by Senior Civil Judge and CJM, Kolar in Ex. Ptn No.57/2023, by which an application for stay of the proceedings till the disposal of Misc. Ptn No.16/2023, was rejected. They have also sought for a direction to allow the application filed by them in Ex.Ptn No.57/2023 and to allow the application filed in Misc.Petition No.16/2023 to stay the proceedings in Ex.Ptn No.57/2023.

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(i) The suit in O.S No.138/2020 was filed for specific performance of an agreement of sale dated 29.08.2016. The suit was decreed ex-parte on 17.06.2022. The defendants filed Misc.Ptn No.12/2022, which was allowed

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4 - NC: 2024:KHC:43798 WP No. 14108 of 2024

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in terms of the order dated 04.11.2022, subject to payment of cost of Rs.2,000/-. It was specifically held that the plaintiff's witness shall be tendered for cross examination on 21.11.2022 and the defendants shall cross examine the plaintiffs witness, failing which, the ex-parte judgment and decree passed in O.S No.138/2020 shall stand revived.

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(ii) After the suit was restored and case was called on 21.11.2022, the defendants instead of cross examining PW1 filed an application under Order 17 Rule 1 of CPC for adjournment of the suit. The Trial Court therefore, passed an order dated 22.11.2022, confirming the ex-parte judgment and decree passed in O.S No.138/2020.

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(iii) The defendants then filed Misc.Ptn No.16/2023 to set aside ex-parte judgment dated 17.06.2022 and to restore the suit and grant an opportunity to cross examine the plaintiff witness. Along with the petition, they filed an application for stay of proceedings in Ex.Ptn No.57/2023. The said application was rejected in terms of the order dated 10.07.2023, following which, the defendants filed an application in E.P No.57/2023 to stay the further proceedings pending disposal of Misc.Petition

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5 - NC: 2024:KHC:43798 WP No. 14108 of 2024

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No.16/2023, which again came to be rejected in terms of order dated 15.07.2023.

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(iv) Thereafter, the plaintiff/decree holder, filed an application under Order XXVI Rule 9 and 10(B) read with Section 151 of Code of Civil Procedure to appoint a court commissioner to execute a sale deed.

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(v) The petitioners are therefore before this Court challenging the order rejecting their application under Order XVII Rule 1 of Code of Civil Procedure and consequent order rejecting the application filed in Misc.Ptn No.16/2023 to stay the proceedings in E.P No.57/2023 and the application in E.P No.57/2023 to stay further proceedings pending disposal of Misc No.16/2023.

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Learned counsel for the defendants contended that, on 21.11.2022, the counsel on record for the defendants found that the written statement filed by the defendants was not sufficient and he felt it necessary to take a definite contention and therefore sought for an adjournment to file an application for amendment of the written statement. He contends that the Trial Court should have been considerate having regard to the reason urged for the adjournment. He contends that the

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NC: 2024:KHC:43798 WP No. 14108 of 2024

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consequence of rejection of the application filed by the defendants was the revival of the ex-parte judgment and decree dated 17.06.2022 passed in O.S No.138/2020. Therefore, he contends that the Court must have been liberal in granting an adjournment. He further contended that, if the proceeding in the Execution Petition No.57/2023 is not stayed, there is every likelihood of the plaintiffs obtaining a deed of absolute sale and this would result in multiplicity of proceedings. He therefore prays that, an opportunity be granted to the defendants to contest the suit on merits.

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Per contra, learned counsel for the plaintiffs/decree holder submits that the defendants have been utterly negligent in contesting the suit. He submits that the Court in Misc. Ptn No.12/2022, had specifically warned defendants not to take any adjournments on 21.11.2022 and to go on with the cross examination of PW1. Nonetheless, defendants took the matter casually and filed an application under Order 17 Rule 1 of Code of Civil Procedure citing untenable reason. He contends that defendants had taken a specific contention that they did not execute the agreement, which was just enough for them to go on with the cross examination of PW1. He therefore contends

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that, the defendants have been dilly dallying the issue. He contends that since the defendants have lost the opportunity, the Trial Court was right in restoring the ex-parte judgment and decree dated 17.06.2022 passed in O.S No.138/2020. He contends that conduct of defendants do not call for any indulgence by this Court and therefore, prays that the petition may be dismissed.

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I have considered the submission of learned counsel

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for the plaintiffs/decree holder and learned counsel for the defendants / judgment debtor.

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The Trial Court re-called the ex-parte judgment and decree passed in O.S No.138/2020 and granted an opportunity to the defendants to contest the suit. Once the Court set aside the judgment and decree passed in O.S No.138/2020, it could not have restored that the ex-parte judgment and decree dated 17.06.2022. If the defendants failed to cross-examine PW1 on 21.11.2022, it was incumbent upon the Trial Court to again pass a fresh judgment. To this extent, the order dated 04.11.2022 deserves to be corrected.

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NC: 2024:KHC:43798 WP No. 14108 of 2024

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The Court granted an opportunity to the defendants to cross-examine PW1 on 21.11.2022. The defendants instead of cross-examining PW1, carelessly filed an application under Order XVII Rule 1 of Code of Civil Procedure. The application for adjournment is as bald as it could be. It is not in dispute that PW1 was present before the Trial Court on the said date. Therefore, the defendants were completely negligent in contesting the suit. Be that as it may, having regard to the consequences that would follow due to defendants not contesting the suit, the Trial Court must have granted an opportunity to the defendants by placing them on terms. Having regard to the conduct of the defendants in unduly protracting the proceedings and not devoting the required attention to conduct the proceedings, it is appropriate that the defendants are put on terms so as to compensate the plaintiff for the time, money and energy spent on the litigation.

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Consequently, this writ petition is allowed . The impugned order passed by the Trial Court rejecting the application filed by the defendants under Order 17 Rule 1 of Code of Civil Procedure is set-aside and the suit is restored on the file of the Trial Court. The defendants shall cross examine

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NC: 2024:KHC:43798 WP No. 14108 of 2024

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PW1 on 22.11.2024, subject to payment of cost of Rs.50,000/payable to the plaintiffs before the Trial Court. If the defendants fail to pay the cost or cross examine PW1 on the next date of hearing i.e. on 22.11.2024, the Trial Court shall pass appropriate judgment in accordance with law.

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In view of the restoration of the suit, the proceedings of the suit and the proceedings initiated by the petitioners in Misc.Ptn No.16/2023 shall stand terminated.

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All contentions are kept open.

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Sd/-

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(R. NATARAJ) JUDGE

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THM

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List No.: 2 Sl No.: 5

Shri. K. Munishamappa v. Shri. Shaikh Madhar Since Dead by Lrs

Case brief

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What did the court decide?

Shri. K. Munishamappa v. Shri. Shaikh Madhar Since Dead by Lrs

Case brief

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