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2019 DIGILAW 1194 (KAR)

Rathna S. Rao v. H. K. Manjunatha

2019-06-11

SREENIVAS HARISH KUMAR

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JUDGMENT : Sreenivas Harish Kumar, J. 1. This appeal is filed by the legal representatives of the original plaintiff Smt. Rathna S. Rao in the suit O.S. No. 3411/1992. Her suit was for declaration that the sale-deed dated 5.5.1983 executed by the second defendant in favour of first defendant does not bind her, mandatory injunction directing the first defendant to demolish or remove the unauthorized construction made in the suit property and permanent injunction to restrain the first defendant or his attorney from putting up any construction in the suit property. This suit was dismissed for non-prosecution on 5.2.1996. Seeking restoration of the suit, the original plaintiff made a petition under Order IX Rule 9 of the Code of Civil Procedure (‘CPC’ for short) which was numbered as Misc. No. 400/2002. By order dated 19.2.2008 this petition was allowed and suit restored. Challenging this order, the first defendant preferred a civil revision, i.e. CRP No. 187/2008. The said revision petition was allowed, the case was remanded to the trial court for re-consideration of the petition under Order IX Rule 9 CPC. At the time of remand, liberty was given to the parties to adduce further evidence. By that time, the original plaintiff was dead and her legal representatives (referred to as petitioners hereafter) had come on record in the civil revision petition itself. After remand, the petitioners examined a doctor by name K. Manoj Kumar as PW-2. After appreciating the evidence afresh, the trial court came to conclusion that the delay in filing the petition under Order IX Rule 9 of CPC had not been explained and that there was no merit in the petition itself and therefore dismissed the petition. Therefore, the petitioners have preferred this appeal aggrieved by the dismissal of the Miscellaneous Petition No. 400/2002. 2. Seeking restoration of the suit, the original plaintiff gave the reasons that prevented her from appearing before the court. She stated that in the suit she had sought an order of temporary injunction. The trial court dismissed the said application and challenging that order, she preferred an appeal to this court. Her advocate told her that so long as MFA was pending in the High Court, the suit would not proceed and therefore she did not attend the court. She was not aware of the dismissal of the suit. The trial court dismissed the said application and challenging that order, she preferred an appeal to this court. Her advocate told her that so long as MFA was pending in the High Court, the suit would not proceed and therefore she did not attend the court. She was not aware of the dismissal of the suit. She has also stated that she was suffering from arthritis and was not in a position to move out of her house to meet her advocate. For the delay in preferring the petition, she gave reasons that she was not aware of the dismissal of the suit, that she was in possession of the suit property, that one Ramesh came and told her about defendants attempt to put up construction on the suit property; that she asked Ramesh to enquire into the matter and that he, after enquiry came and told that her suit had been dismissed. Immediately she took steps for getting the suit restored. 3. When the trial court held an enquiry, the son of the plaintiff, i.e. Sathyanarayana S. Rao adduced evidence as PW-1 and marked 21 documents, Exs. P1 to P21. The first respondent adduced evidence as RW-1 and got marked one document as per Ex. R1. After appreciating the evidence, the trial court came to conclusion that the reasons given by the plaintiff regarding her illness cannot be believed. The documents that were produced by PW-1 to prove his mother's illness did not establish the fact that on 5.2.1996 she was not in a position to come to court. Ex.P7 is of no assistance to show that the original plaintiff was suffering from serious health issues. It is observed that Exs. P3, P4 and P5 indicate that the petitioner took treatment on 6.7.1994, 18.7.1994, 1.8.1994, 17.8.1994 and 3.9.1994 as an out patient. Since these documents were of the year 1994 and that they did not pertain to the relevant period, i.e. for February 1996, they cannot be considered to hold that the plaintiff was really unwell on 5.2.1996 or during the period in and around that date. With regard to Ex.P6, it is held by the trial court that the plaintiff took treatment as an out patient on 12.1.1995. The other documents Exs. With regard to Ex.P6, it is held by the trial court that the plaintiff took treatment as an out patient on 12.1.1995. The other documents Exs. P8 to P19 show that the petitioner took treatment at Manipal Hospital as an inpatient from 20.5.1996 to 31.5.1996 for her severe low back ache and these documents also do not pertain to the period of dismissal of the suit. With regard to Ex.P7 it is held that it is a medical certificate issued by a doctor who was running a clinic called Raghavendra Clinic. That document showed that the plaintiff was taking treatment in that clinic for the period 16.12.1995 to 20.5.1996. But, the said doctor has not come forward to give evidence. Referring to Ex.P2, medical certificate, issued by Dr. K. Manoj Kumar it is held by the trial court that it is not the case of the plaintiff that she was also taking treatment from doctor K. Manoj Kumar when she was taking treatment at Raghavendra Clinic. There is no explanation from the petitioner as to why she took treatment at Raghavendra Clinic at the same time when she was taking treatment from one Dr. Manoj Kumar. Thus, the trial court has disbelieved these documents. Added to this the trial court refers to an answer given by PW-2 Dr. K. Manoj Kumar to come to conclusion that the plaintiff did not have impediment to meet her advocate. Therefore, the trial court is of the opinion that the petitioners in the miscellaneous petition failed to place before the court sufficient cause for non-appearance of original plaintiff on 5.2.1996. 4. For the delay in filing the petition under Order IX Rule 9 CPC, the trial court has come to conclusion that it was one Ramesh who came to the house of the plaintiff on 25.3.2002 and told her that the defendants were making arrangements for putting up construction in the disputed property. She asked Ramesh to pursue the matter with her counsel to know the stage of the proceedings. Subsequently, Ramesh enquired with the advocate and informed her that the suit had been dismissed on 5.2.1996 itself. The plaintiff gave this reason to show that it was only through Ramesh she came to know about dismissal order. The said Ramesh should have been examined. Therefore, the reasons given by the petitioners to explain the delay cannot be believed. The petition was time barred. The plaintiff gave this reason to show that it was only through Ramesh she came to know about dismissal order. The said Ramesh should have been examined. Therefore, the reasons given by the petitioners to explain the delay cannot be believed. The petition was time barred. Hence, rejected the application for condonation of delay also. Consequently, IA-1 was dismissed. 5. Assailing the findings of the trial court, learned counsel for the appellants argues that the trial court has not appreciated the evidence in right perspective. It was a fact that the plaintiff was suffering from arthritis and taking treatment. Actually she died because of this problem. PW-2 was the doctor who was examined subsequent to remand by this court. He clearly stated that the original plaintiff was taking treatment from him. This being the position, the trial court should not have come to conclusion that the petitioners failed to place sufficient reasons before the court that prevented the plaintiff from appearing before the court on 5.2.1996. He also argues that the petitioners wanted to examine Ramesh and an application was also made for recalling PW-1 and it was also dismissed. Therefore, the trial court did not give sufficient opportunity to the petitioners to prove their case. 5.1. Learned counsel for the appellants further argues that the original plaintiff entered into agreement of sale with the defendants and on the date of agreement itself, possession of the suit property was handed over to her. It was a registered agreement also. This being the position, the trial court should not have dismissed the petition. The merits of the suit should have been taken into consideration. In support of his arguments, he placed reliance on the judgment of the Supreme Court in the case of State of Bihar and Others vs. Kameshwar Prasad Singh and Another, (2000) AIR SC 2306 and this court in the cases of State of Karnataka vs. H.B. Munivenkatappa, (2007) 3 Laws (Kar) 49 and E.A. Dsouza vs. Cyril Joseph Rodrigues, (2008) 6 Laws (Kar) 25. Placing reliance on these judgments he argues that considering the merits of the case, the appeal should be allowed. The case should be remanded to the trial court to enable the petitioners to examine Ramesh and also PW-1 further. 6. Placing reliance on these judgments he argues that considering the merits of the case, the appeal should be allowed. The case should be remanded to the trial court to enable the petitioners to examine Ramesh and also PW-1 further. 6. On the other hand, learned counsel for respondent argues that whenever an application under Order IX Rule 9 CPC is filed, the plaintiff should be able to prove before the court the reason that prevented him/her from appearing before the court on the day it was dismissed for non-prosecution. In this case, the plaintiff gave two reasons firstly that her advocate had told her that the suit would not proceed until the appeal in the High Court would be disposed and that she was suffering from arthritis and therefore she could not meet her advocate. It was a blame made by the petitioners on the advocate. Therefore, this reason is not established. With regard to the second reason, the documents that are exhibited on behalf of the petitioners do not show that the plaintiff was so seriously unwell that she could not meet her advocate on 5.2.1996 and also to come to court. PW-2 himself has clearly answered in the cross-examination that the plaintiff was able to move about in the way she used to go for treatment. Therefore, this answer falsifies the stand of the petitioners that the plaintiff was not unable to come to court owing to her ill health. Even the documents that have been produced and exhibited do not show that in the month of February 1996, the plaintiff was not keeping good health. Those documents pertain to previous years. He further argues that so far as delay in filing the petition is concerned, it is the clear case of the plaintiff that it was through one Ramesh she came to know that the defendants came near the property and caused disturbance. He was the best evidence to establish the case of the petitioners. Nothing prevented the petitioners from examining Ramesh. Rather the application was made for recalling PW-1. Rightly the trial court came to conclusion to dismiss the application, the trial court has not committed any error in dismissing the application for condonation of delay as also the petition under Order IX Rule 9 CPC. 6.1. Nothing prevented the petitioners from examining Ramesh. Rather the application was made for recalling PW-1. Rightly the trial court came to conclusion to dismiss the application, the trial court has not committed any error in dismissing the application for condonation of delay as also the petition under Order IX Rule 9 CPC. 6.1. It is the further argument of the respondent's counsel that even if the merits of the case are concerned, the suit itself is not maintainable. The remedy available to the plaintiff was to file suit for specific performance. Instead the plaintiff sought declaration that the sale- deed dated 5.5.1983 did not bind her. When she has not become the owner of the property, she has no right to bring a suit for declaration of title. Even if the appeal is allowed, the plaintiff will fail in the suit and therefore this appeal should be dismissed. 7. After hearing both sides, it has to be stated that for the purpose of getting the suit restored under Order IX Rule 9 CPC, the plaintiff who instituted the petition under Order IX Rule 9 CPC gave two reasons, firstly that her advocate had told her that so long as the appeal would be pending in the High Court, the suit would not proceed and therefore she did not meet the advocate. The second reason she gave was that she was suffering from arthritis and she could not move out of her house to meet the advocate and to come to court and therefore she could not attend the court on 5.2.1996. For the delay in filing the petition under Order IX Rule 9 CPC she gave the reason that she was actually not aware of the dismissal of the suit. It was from one Ramesh she came to know that the defendants came near the property and tried to put up construction and she asked Ramesh to enquire into the matter and that he came to know that the suit had been dismissed and informed the same to her. Therefore, it is to be made clear that the reasons she gave for seeking restoration of the suit stand altogether differently from the reason that she gave in support of the application filed under section 5 of the Limitation Act. 8. The trial court has considered these two aspects of the matter. PW-1 is the second legal representative of the plaintiff. 8. The trial court has considered these two aspects of the matter. PW-1 is the second legal representative of the plaintiff. Actually, his evidence is of no use. He has just produced medical records pertaining to the plaintiff. More than the oral evidence, the documents that are produced are to be assessed. What is to be seen is whether the plaintiff was so seriously unwell that she could not come to court on 5.2.1996. The relevant documents are Exs. P2 and P7. Ex.P1 is the certified copy of the order sheet in O.S. No. 3411/1992. It is produced to show that the suit was dismissed for non-prosecution on 5.2.1996. Exs. P3, P4, P5, P6 are medical bills and prescriptions. Exs.P8 to P19 are some documents which show that the plaintiff was taking treatment. Ex.P20 is the death certificate of the plaintiff. Ex.P21 is the death certificate of plaintiff's husband, Sheshgiri Rao. Ex.P2 shows that one Dr. K. Manoj Kumar, examined as PW-2, issued this medical certificate on 15.4.2002 stating that since 3.4.1995 till the date of issuance of certificate, the plaintiff was suffering from arthritis and low back pain. Ex.P7 is a medical certificate issued by Dr. Adoor Bhaskar Rao. This shows that the plaintiff was suffering from Rumatido arthritis, she was taking treatment in his clinic from 16.12.1995 to 20.5.1996. Exs.P2 and P7 give an impression that plaintiff was taking treatment from Dr. Adoor Bhaskar Rao and Manoj Kumar. But, Ex.P2 appears to be unbelievable for the reason that it does not say that the plaintiff was unable to move about. All that Ex.P2 shows is that Dr. Manoj Kumar treated the plaintiff. But, Ex.P7 appears to have been issued on 20.5.1996 by Dr. Adoor Bhaskar Rao. The petitioners should have examined Adoor Bhaskar Rao instead of Dr. Manoj Kumar. It could be a fact that she was suffering from arthritis, but nothing is forthcoming from these two certificates that she was really not able to move out of the house. In this connection, PW-2 has clearly stated that she was able to contact her advocate in the way she was going for treatment. Therefore, the entire case of the petitioners that original plaintiff was not able to contact her advocate because of her ill health cannot be believed. The trial court has correctly appreciated the evidence to come to this conclusion. Therefore, the entire case of the petitioners that original plaintiff was not able to contact her advocate because of her ill health cannot be believed. The trial court has correctly appreciated the evidence to come to this conclusion. I do not find any error in it. 9. For explaining delay in filing the petition under Order IX Rule 9 CPC, the original plaintiff came up with a reason that she was not aware of the dismissal of the suit and it was only from Ramesh that she came to know that the defendants came near the suit property and tried to put up construction. It was he who further enquired into the matter and informed the plaintiff that the suit was dismissed. Therefore, he was the best witness to give evidence that he really informed the plaintiff that the defendants came and caused obstruction and that he enquired further into the matter. Since it is argued by the appellants counsel that the trial court did not give sufficient opportunity to the petitioners to establish their case, it is to be mentioned here that after the CRP was allowed by this court and the petition was remanded to the trial court for fresh disposal, the petitioners made an application under Order XVI Rule 1 CPC for issue of summons to Dr. Manoj Kumar. If it was the intention of the petitioner to examine Ramesh also nothing prevented them from mentioning the name Ramesh also in the application for being summoned. They only wanted to recall PW-1 for further examination. The trial court dismissed the said application. I do not find any error in dismissing the said application. Even if PW-1 had been recalled, he would not have spoken more than what he had given evidence for the first time. It is very easy to say that the trial court did not give opportunity. This kind of argument is not commendable. If the petitioners were really diligent and interested to pursue their case, they should have taken timely steps. The whole argument is as such that the petitioners wanted an invitation to be extended to them for examining a witness. The parties should show eagerness to see that the case is decided. This kind of argument is not commendable. If the petitioners were really diligent and interested to pursue their case, they should have taken timely steps. The whole argument is as such that the petitioners wanted an invitation to be extended to them for examining a witness. The parties should show eagerness to see that the case is decided. The order sheet of the trial court discloses that after examination of PW-2 was over, it was taken as no further evidence and even at that stage the petitioners could have made a submission that they had further evidence to be led or they could have orally applied for summons for examining Mr. Ramesh. The order sheet does not show any such attempt being made by the petitioners. Therefore, the arguments advanced by the learned counsel for the appellant cannot be appreciated. Considering these aspects of the matter, if the trial court came to the conclusion that the delay was not explained at all and proceeded to dismiss the application for condonation of delay, it can only be said that the trial court has rightly exercised its discretion. There cannot be interference with the order if discretion is rightly exercised. 10. Learned counsel for the appellant has argued that considering the merits of the case the trial court should have allowed the petition. His argument is that in the judgments cited by him there are instances that delay of more than 10 to 15 years being condoned and this was a fit case for condoning the delay of 6 years. I do concur with the propositions laid down in these decisions, but the fact remains that delay cannot be condoned unless it is properly explained. Even if the merits of the case are concerned, instead of filing a suit for specific performance, the plaintiff chose to file a suit for declaration that sale-deed executed by second defendant in favour of first defendant did not bind her. When she did not become the owner of the property, she could not have sought such declaration. Therefore, even if the petition had been allowed no purpose would have served. Taking this aspect into consideration also, I come to conclusion that the appeal cannot be allowed. Therefore, it is dismissed.