Allowed

Mailwar Narsappa, v. Smt B.Sangamma

Telangana HC19 Sept 2013AS/841/2013

Case brief

AI extract

What is this about?

The High Court condoned the delay in filing an appeal by accepting the appellants' counsel's failure to appear as sufficient cause. The appeal was allowed, setting aside an ex parte decree for specific performance passed without proper procedure and application of mind, restoring the suit for further trial.

What did the court decide?

Decree and judgment set aside; suit restored to court below for cross-examination of P.W.3; appellants to deposit Rs.10,000/- costs.

Mailwar Narsappa, Vs Smt B.Sangamma — Specific Performance | Telangana HC (2013)

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*THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

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+ A.S.M.P.No.1921 of 2013

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AND APPEAL SUIT No.841 of 2013

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% 19.09.2013

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# 1. Mailwar Narsappa, S/o.Malkappa, aged about 71 years, Occ: Agriculture, R/o.Dowlapur Village, Yalai Mandal, Ranga Reddy District. 2. Pendyala Prabhakar, S/o.Shankaraiah, aged about 46 years, Occ: Business, R/o.H.No.5-1-168, Ghanpur Ward, Tandur, Ranga Reddy District.

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….Appellants

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Vs.

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$ B.Sangamma, W/o.B.Rachappa, aged about 76 years, Occ: Household, R/o.4-1-78, Nehru Gund, Tandur, Ranga REddy District.

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…. Respondent

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!Counsel for the Appellant : Mr. RESU MAHENDER REDDY Counsel for the Respondent: Mr. MOHD. GHULAM HUSSAIN

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<Gist :

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>Head Note:

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? Cases referred:

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1) AIR 1999 SC 3381

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2) AIR 1987 SC 40

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HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

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A.S.M.P.No.1921 of 2013 AND APPEAL SUIT No.841 of 2013

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Dt: 19.09.2013

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Between:-

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Mailwar Narsappa and another … Petitioners and B.Sangamma … Respondent

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This Court made the following:-

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HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

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A.S.M.P.No.1921 of 2013 AND APPEAL SUIT No.841 of 2013

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COMMON ORDER:

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Heard both sides. On the previous dates of hearing as well as today, both the learned counsel have made submissions on the merits of the appeal itself as the decree, which is impugned in this appeal, is an ex parte decree.

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2. Though this appeal is preferred by the defendants along with an application seeking condonation of delay viz., A.S.M.P.No.1921 of 2013, with consent of both the learned counsel, the appeal itself is being disposed of in order to save precious time of the parties and to curtail the litigation.

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3. The plaintiff, who is respondent in this appeal, filed O.S.No.186 of 2007 before the Senior Civil Judge, Ranga Reddy District at Vikarabad, for specific performance of the suit agreement. It was alleged that defendant No.1 is the owner and possessor of agricultural land admeasuring Ac.3-17 guntas in S.No.54/E at Dowlapur Village. Defendant No.1 had offered to sell the said suit land to the plaintiff for a consideration of Rs.7,36,375/- at the rate of Rs.2,15,000/- per acre and in pursuance of the said offer the plaintiff accepted the same and paid an advance of Rs.1,10,000/- and the suit

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agreement, dated 06.09.2006, was executed. The parties had agreed that within one month of the said agreement, plaintiff would pay the balance amount and the defendants would execute and register the sale deed. The plaintiff alleges that he was ready and offered to pay the balance amount, but the defendants postponed the said execution and registration of the sale deed on some pretext or the other. Then the plaintiff got issued a legal notice, dated 04.10.2006, and filed the present suit.

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4. Defendant Nos.1 and 2 filed a common written statement admitting the ownership of defendant No.1, but denied execution of any agreement. It was also contended that notice issued prior to the suit was not served on the defendants. It was alleged that while the plaintiff’s son is carrying on business as Commission Agent in Gunj market, defendant No.1 used to sell his agricultural produce to him and for that purpose he used to obtain hand loans from him. The thumb impressions of the defendants on some papers have been obtained by the plaintiff’s son and the same were used for fabricating the suit agreement. Defendants, therefore, denied the execution of the suit agreement as well as receiving of any advance.

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5. In view of the said pleadings, the trial court framed the following

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issues:-

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“1. Whether the defendant No.1 entered into an agreement of sale and received Rs.1,10,000/- as earnest money?

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2. Whether the plaintiff was and is ready to perform her part of the contract? 3. Whether the agreement of sale is forged and fabricated document? 4. Whether the plaintiff is entitled to seek the relief of specific performance of agreement of sale?

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5. Whether defendant No.2 is a bonafide purchaser for valuable consideration without knowledge of agreement of sale? 6. To what relief, the plaintiff is entitled to?”

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6. While the plaintiff examined P.Ws.1 to 3 and marked Exs.A1 to A9, it appears that the defendants did not adduce any evidence and their counsel reported no instructions when P.W.3 was being examined. The suit therefore

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was decreed on the basis of evidence adduced by the plaintiff and in the absence of any contest or evidence by the defendants, the said decree, according to the appellants/defendants, is an ex parte decree. However, in stead of approaching the trial court with an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for brevity, “C.P.C.”), the present regular appeal under Section 96 C.P.C. is filed by the defendants seeking condonation of delay.

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7. The affidavit filed in support of the application for condonation viz., A.S.M.P.No.1921 of 2013, states that though P.Ws.1 and 2 were crossexamined by their counsel, the counsel straight away reported no instructions when P.W.3 was being examined and thereafter there was hardly any opportunity for the defendants. None of the said development was known to the defendants, as their counsel did not inform about the same and the appellants had knowledge of the said ex parte decree only when they received notice in the execution petition. Paragraphs 16 and 17 of the affidavit sets out the reasons for the delay in approaching this Court, which are as follows:

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“16. I submit that passing of the impugned judgment & decree was not informed to us by our counsel on record before the court below, instead we came to know the same when we received the notice from the court below in execution petition with E.P.No.6 of 2013 in O.S.No.186 of 2007 on the file of the Senior Civil Judge, Ranga Reddy District at Vikarabad on 08.07.2013 which directed us to appear before it on 15.07.2013. I submit that we were utterly shocked on receiving the said notice in Execution Petition and immediately contacted our counsel on 10.07.2013 who in turn informed about the passing of Judgment & Decree on 11.10.2012 and evasively answered that he had reported no instructions on our behalf without assigning any reason. On our persistent questioning our counsel in court below had asked us to come to his office on 12.07.2013 and take back the entire case bundle. Accordingly on 12.07.2012 we had taken back the entire case bundle along with Certified Copy of Judgment and Decree dated 11.10.2012, which is roped in the bundle itself.

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17. I submit that immediately we have engaged Sri Narender Gound, Advocate to further pursue the matter in our interest, who in turn advised us to obtain certified copies of docket orders thereby to take appropriate steps. I submit that the above said certified copies of various docket proceedings which were applied by us on

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19.07.2013 were issued on 23.07.2013. Our new counsel in the court below had advised us to approach the present Appellate Court counsel thereby to take necessary steps to protect and guard our interest in the suit schedule property. Therefore to protect our rights and I being a bona fide purchaser of Agricultural land under registered sale deed, dated 04.07.2007, which is part of suit schedule property under Exhibit A8 is filing a separate application to seek stay of impugned judgment pending disposal of the above appeal. So also we have engaged the said counsel in above mentioned Execution Proceeding with E.P.No.6 of 2013 in O.S.No.186 of 2007 which is now posted to 06.09.2013.”

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8. Learned counsel for the respondent/plaintiff has filed a detailed counter affidavit and has denied all the said allegations. However, the said denial is a general denial. It is stated in the said counter also that during the trial the respondent examined P.Ws.1 to 3 and marked Exs.A1 to A10. The counsel for the petitioners in the lower court cross-examined P.Ws.1 and 2 but on 08.10.2012 at the time of examination of P.W.3, the counsel for the petitioners reported no instructions. Thereafter the lower court heard the arguments on behalf of the respondent and pronounced judgment on 11.10.2012 and decreed the suit. The respondent deposited the balance sale consideration of Rs.6,26,375/- in the lower court within the time granted by the lower court. The respondent filed E.P.No.6 of 2013, in which notices were issued to the petitioners, who appeared through their counsel and the E.P. is said to be posted to 21.10.2013. It is further stated in the counter affidavit that petitioners being the parties to the suit are under obligation to attend the Court on each date of hearing particularly during trial and as such petitioners cannot make lame excuse of lack of knowledge of the proceedings of the suit and the decree passed by the lower court.

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9. Learned counsel for the appellants, on the other hand, submits that the appellants had engaged a counsel and they had depended on him. It now turned out that without the knowledge of the defendants, he reported no instructions and thereby the suit came to be decreed without further contest by the defendants. It is, therefore, contended that the specific averment of the defendants in the application for condonation of delay showing the

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sufficient cause, however, is not being specifically denied.

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10. Sufficient cause deserves to be accepted by giving an opportunity to the petitioners to contest the suit. I have also seen the impugned judgment of the trial court which shows that all the five issues are considered by the Court simultaneously and the suit was decreed without there being any findings recorded with regard to essential ingredients of the suit for specific performance, such as, readiness and willingness of the plaintiff; the discretion under Section 20 of the Specific Relief Act, 1963; and the specific issue No.5 as to whether defendant No.2 is a bona fide purchaser for value without knowledge of the agreement of sale. It is well settled that a decree even if ex parte must show application of mind and adjudication on the vital aspects of the suit.

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[1] 11. The Supreme Court in BALRAJ TANEJA v. SUNIL MADAN has already ruled as to what is expected of a Court even if the judgment and decree is passed ex parte and that the minimum it should disclose application of mind by the Court even with respect to ex parte decree. Relevant portions of Pars 40A and 43 are extracted hereunder:

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“40A. “Judgment” as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20, Rule 4(2) which says that a judgment:

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“shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.”

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It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.” 43. …Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8, Rule 10, the Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved”

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12. The crucial question with regard to condonation of delay, therefore, is clearly required to be answered in favour of the petitioners/appellants as the reasons for the delay are clearly attributable to the acts of their counsel before the trial court in reporting no instructions at the stage of evidence of P.W.3. It is noteworthy that, suit was not at the stage where defendants were to lead evidence and it was merely at the stage of examination of P.W.3 and at best the counsel would have opted not to cross-examine the said witness for want of instructions. Though the appellants are also required to be vigilant, they depended on their counsel, who reported no instructions and the Court below proceeded to determine the suit on merits. I am, therefore, satisfied that the delay in presentation of this appeal is sufficiently and properly explained by the petitioners/appellants and the delay deserves to be condoned. Accordingly, the A.S.M.P.No.1921 of 2013 is allowed.

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13. The point for consideration in the appeal is whether the decree impugned in this appeal is an ex parte decree and whether it deserves to be set aside?

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P O I N T :-

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14. So far as the main appeal is concerned, it is relevant to notice the

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provisions of Order XVII Rule 3 C.P.C. at this stage, which is as follows:

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“Order XVII Rule 3:- Court may proceed notwithstanding either party fails to produce evidence, etc.

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Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed,¹ [the Court may, notwithstanding such default,-

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a) if the parties are present, proceed to decide the suit forthwith, or b) if the parties are, or any of them is, absent, proceed under rule 2.”

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15. In the light of the above provision, it is also appropriate to notice the crucial docket proceedings of the lower court, dated 25.09.2012 and 08.10.2012.

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“25.09.2012: Both counsels present. P.W2 present and cross-

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examined. For further evidence, at request issue summons to witnesses call on 08.10.2012.

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08.10.2012: Defendant called absent. The counsel for defendant reported NO INSTRUCTIONS for defendant and recorded. P.W.3 examined plaintiff side evidence is closed. At request of Sri N.B.R. Advocate. Since defendant called absent and his evidence closed. Arguments Heard. For Judgment call on 11.10.2012”

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16. From the above, it is evident that on 08.10.2012 the Court below has set the appellants/defendants ex parte, but also closed the evidence on the part of the defendants and after hearing the arguments posted the suit for judgment and pronounced the judgment on 11.10.2012. The whole procedure adopted by the trial court on the said two crucial dates, extracted above, clearly shows that the Court below has violated the mandate of Order XVII Rule 2 C.P.C. and without posting the suit for defendants’ evidence, the court below straight away heard arguments and pronounced the judgment. Moreover, the counsel for the defendants has not cross-examined P.W.3, but reported no instructions. In law, therefore, the defendants were not represented and any order passed was clearly an ex parte order against the defendants. This issue is squarely covered by a decision of the Supreme

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Court in State of A.P. v. G.Ranghunayakul u^[2] , which authoritatively explained the provisions of Order XVII Rule 3 C.P.C. The relevant portion is extracted hereunder:-

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“6. …. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with O.17 R.2 in any one of the modes prescribed under O.9, Civil P.C. It is therefore clear that after this amendment in O.17 Rr.2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on 30.10.1985 when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff’s evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. 30.10.1985 when the trial Court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to O.17 R.2 was not applicable at all. Apparently when the defendant was absent O.17 R.2 only permitted the Court to proceed to

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dispose of the matter in any one of the modes provided under O.9. 7. It is also clear that O.17 R.3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the Court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial Court went on in the controversy about O.17, Rr.2 and 3, which existed before the amendment and rejected the review application and on appeal the High Court also unfortunately dismissed the appeal in limine by one word.

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8. The learned counsel for the respondent attempted to contend that in this view of law as it now stands an application under O.9 R.13 will be maintainable. However, it was suggested that there was also an objection of limitation about the acceptance of that application. It is apparent that the learned trial Court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained. This objection of the learned counsel for the respondent is not necessary for us to go into at this stage as in view of the law discussed above, the order rejecting the application as not maintainable, has to be set aside and it will be open to the learned trial Court to consider the application under O.9 R.13 and dispose it of in accordance with that law and while so doing, it may even examine the objections that may be raised by the respondent.”

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17. Applying the said ratio to the facts of the present case, it is clearly evident that the decree passed by the trial court is an ex parte decree, which is also vitiated on account of non-application of mind and non consideration of five issues. Hence, the impugned judgment suffers from procedural as well as jurisdictional errors and warrants interference by this Court under Section 96 C.P.C. The Appeal Suit, therefore, is liable to be allowed by setting aside the decree and judgment passed by the Court below and the appellants/defendants are required to be granted opportunity to contest the suit by participating in the suit from the stage of evidence of P.W.3 onwards.

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18. Accordingly, the Appeal Suit is allowed. The decree and judgment passed by the Senior Civil Judge, Vikarabad, Ranga Reddy District in O.S.No.186 of 2007, dated 11.10.2012, impugned herein, is set aside. The suit shall stand restored and relegated on the file of the Court below, which shall fix a date for cross-examination of P.W.3 and give an opportunity to the appellants/defendants to cross-examine P.W.3 and thereafter proceed with the trial of the suit in accordance with law. The amount of balance sale

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consideration deposited by the appellants may be permitted to be withdrawn by the respondent/plaintiff without prejudice to his rights, if he makes such an application before the trial court, and in the absence of any such application within two weeks from the date of receipt of a copy of this order, the trial court shall invest the said amount in an interest yielding deposit for a period of three months. The trial court shall endeavour to dispose of the suit on merits as per the direction above on or before 31.12.2013.

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The appellants, however, cannot be said to be totally absolved of any responsibility with regard to circumstances under which the Court below had to pass a decree under appeal. Therefore, the appellants shall deposit Rs.10,000/- (Rupees Ten thousand only) towards costs before the trial court within four weeks from today. On such deposit, the respondent/plaintiff shall be entitled to withdraw the same without furnishing any security. Miscellaneous petitions pending, if any, shall stand dismissed.

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_____________________ VILAS V. AFZULPURKAR, J

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September 19, 2013 Note:Office to communicate the judgment and decree in this appeal to the trial court within two weeks along with the records, if any.

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{B/o} LMV

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HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

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A.S.M.P.No.1921 of 2013 AND APPEAL SUIT No.841 of 2013

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Dated: September 19, 2013

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LMV

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[1] AIR 1999 SC 3381