Smt Bhagya Vs M Srinivas

THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 11.12.2024 PASSED IN O.S.NO.6258/2022 ON THE FILE OF XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,

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BENGALURU, DECREEING THE SUIT FOR RECOVERY OF MONEY.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Though the matter listed for admission, with the consent of both the parties, the appeal is taken for final disposal.

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The present appeal is preferred by the defendant assailing the legality and correctness of the judgment and decree dated 11.12.2024 in O.S.No.6258/2022 on the file of the XVI Additional City Civil and Sessions Judge at Bengaluru. By the judgment and decree, the Trial Court decreed the suit seeking recovery of money and directed the defendant to pay a sum of Rs.6,37,000/- along with interest at the rate of 9% per annum from the date of suit till the date of realization.

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Heard the learned counsel appearing for the

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appellant and the learned counsel appearing for the respondent.

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Suit for recovery of amount of Rs.6,37,500/-. It is the case of the plaintiff that the defendant had approached the plaintiff seeking financial assistance of Rs.5,00,000/- and considering the acquaintance with the defendant in order to help, the plaintiff paid a sum of Rs.65,000/- by way of cash on 11.06.2021 and sum of Rs.1,35,000/- by way of cheque bearing No.276313 drawn on Malleswaram Co-operative Bank and the remaining amount of Rs.3,00,000/- has been paid to the brother of the defendant one Nataraj on behalf of the defendant and accordingly, the defendant in all received a sum of Rs.5,00,000/-. It is stated that the defendant has acknowledged the receipt of the said sum of Rs.5,00,000/as per the agreement executed in favour of the plaintiff on 11.06.2021 under Ex.P.1 and the defendant has agreed to

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return the amount within 3 months from the date of

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agreement. It is stated that as security towards the loan amount, the defendant has handed over the original gift deed to the plaintiff in respect of the sites belonging to her.

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The notice was issued to the defendant, however, the defendant did not appear before the Trial Court and hence, she was placed ex parte . When the matter was posted for arguments, the defendant appeared and filed I.A.No.1 under Order IX Rule 7 of Code of Civil Procedure seeking to set aside the ex parte order dated 02.04.2024. The Trial Court considering the submission, allowed I.A.No.1 on 18.07.2024 and set-aside the ex parte order dated 02.04.2024 and the matter was posted for arguments.

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It is the contention of the learned counsel

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appearing for the appellant that Trial Court after setting aside the ex parte order has not given sufficient opportunity to file written statement and non affording of an opportunity has lead grave injustice to the appellant. It

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is submitted that the Trial Court by placing reliance on the alleged agreement dated 11.06.2021, has arrived at the conclusion that the plaintiff is entitled for a sum of Rs.6,37,500/- and directed the defendant to pay the said amount. It is argued that the respondent has clearly stated in his plaint that an amount of Rs.3,00,000/- was given to the brother of the appellant. When such being the case, the Trial Court ought not to have given a finding to that effect that the amount of Rs.3,00,000/- is also payable by the appellant. The non-affording of an opportunity to file written statement prejudice the rights of the appellant.

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Per contra , learned counsel appearing for the respondent vehemently objects to the contentions raised by the appellant contending that the appellant/defendant was provided an opportunity and ex parte order was set aside inspite of giving sufficient opportunity, he has not chosen to file written statement and not cross examined the P.W.1 and not lead any evidence to substantiate his contention as urged before this Court in this appeal. Having

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feel to do so, the appellant is not entitled for any relief as prayed by the appellant before this Court.

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Having heard the learned counsel appearing for

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the parties, the point that arises for consideration of this Court is:

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“Whether the Trial Court is justified in proceeding to judgment without granting opportunity to file a written statement and lead evidence after setting aside the ex parte order?”

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From the order sheet of the Trial Court, it is clearly revealed that the defendant was placed ex parte by an order dated 02.04.2024, thereafter, the matter was listed for plaintiff’s evidence, during which the plaintiff led his evidence, got documents marked, and the case was posted for arguments on 02.07.2024. On the said date, one P.R. Advocate entered appearance for defendant and filed I.A.No.1 under Order IX Rule 7 read with Section 151 of

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Code of Civil Procedure seeking to set-aside the ex parte order. The plaintiff filed objections and the Trial Court vide order dated 18.07.2024 allowed the application and set-

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aside the ex parte order dated 02.04.2024. However, it is noticed from the order sheet that instead of affording the defendant an opportunity to file her written statement and contest the matter on merits, the case was directly posted for arguments. The records further disclose that on 07.08.2024 the matter was called, adjourned and stood posted for arguments on 19.08.2024. On that date, both counsel were present and the argument on behalf of the plaintiff was that there was no written statement filed and no cross-examination of P.W.1, and therefore the matter was posted for judgment on 30.08.2024. Ultimately, the impugned judgment and decree came to be passed on 11.12.2024 decreeing the suit of the plaintiff. As rightly contended by the appellant’s counsel, once the ex parte order was set-aside, the Trial Court ought to have provided a reasonable opportunity to the defendant to file written statement and lead evidence. The denial of such opportunity amounts to violation of principles of natural justice and also caused prejudice to the rights of the

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defendant. Therefore, without going into the merits and demerits of the rival contentions, it is appropriate to remit the matter back to the Trial Court by imposing reasonable costs on the appellant so as to afford her a fair chance to putforth the defence. Accordingly, this Court pass the following:

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ORDER

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i) The Regular First Appeal is allowed in part .

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ii) The judgment and decree of the Trial Court dated 11.12.2024 passed in O.S.No.6258/2022 on the file of XVI Additional City Civil and Sessions Judge at Bengaluru is set-aside .

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iii) The matter is remitted back to the Trial Court for fresh consideration in accordance with law.

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iv) Parties to appear before the Trial Court on 16.09.2025. On the said date, the appellant to file her written statement, the same to be accepted by the Trial Court on cost of Rs.25,000/- (Rupees Twenty Five Thousand

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only) payable to the plaintiff on the said date. The Trial Court to proceed thereafter in accordance with law.

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v) All the contentions are kept open to be urged before the Trial Court.

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vi) This Court has not expressed the merits or demerits of the case.

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vii) Any observation made is only for limited purpose of remanding the matter to the Trial Court.

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viii) In the event if appellant fails to pay the cost as directed by this Court, the right given to the appellant to file written statement shall be forfeited.

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ix) The amount of Rs.3,00,000/- which is in deposit to be transferred to the Trial Court. The Trial Court to deposit the said amount in any nationalized Bank for a period of 3 years.

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