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2021 DIGILAW 928 (KAR)

Yogesh A. v. Suryanarayana B. S.

2021-11-08

H.B.PRABHAKARA SASTRY

body2021
JUDGMENT : 1. The present respondent (plaintiff) had instituted a suit against the present appellants (defendants) in O.S.No.185/2015 in the Court of the XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-36) (hereinafter for brevity referred to as the Trial Court) for the relief of permanent injunction with respect to the suit schedule property which is said to be a House property bearing No.69, Konanakunte Village, Begur Hobli, Bengaluru South Taluk, measuring 40 ft. x 40 ft. 2. The defendants in the Trial Court (who are the appellants herein) though appeared through their counsel, did not file their Written Statement in-time. Taking that the defendants failed to file the Written Statement, the Trial Court proceeded to record the evidence of the plaintiff and after R.F.A.No.1825/2019 hearing their arguments, vide its judgment dtd. 6/7/2019, decreed the suit of the plaintiff. Aggrieved by the same, the defendants in the Trial Court have preferred the present appeal. 3. During the pendency of this appeal, due to the death of appellant No.1, the appeal of the appellant No.1 came to be abated. However, according to the learned counsel for the appellants, the appellant No.1 is only a formal party who was the vendor of the suit schedule property to the appellant No.2, as such, the right to sue survives for the appellant No.2 alone against the respondent (plaintiff). The said submission is not being opposed to by the learned counsel for the respondent (plaintiff). 4. Though this matter is listed for its admission, however, with the consent from both side, the matter is taken up for its final disposal. 5. The caveator/respondent herein (plaintiff) is being represented by his learned counsel. 6. Heard the arguments from both side. Perused the materials placed before this Court including the impugned judgment. R.F.A.No.1825/2019 7. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 8. After hearing the learned counsels for the parties, the points that arise for my consideration in this appeal are: i] Whether the Trial Court was justified in not receiving the Written Statement said to have been filed by the defendants along with I.A.Nos.5 and 6? ii] Whether the impugned judgment sustains which is passed without disposing of the interlocutory applications - I.A.Nos.1, 3 and 4, said to have been filed by the parties in the Original Suit? ii] Whether the impugned judgment sustains which is passed without disposing of the interlocutory applications - I.A.Nos.1, 3 and 4, said to have been filed by the parties in the Original Suit? iii] Whether the impugned judgment warrants any interference at the hands of this Court? 9. The summary of the case of the plaintiff in the Trial Court was that, he had purchased the suit schedule property from one Sri. Anjanappa and had registered Sale Deed dtd. 30/11/1983. Accordingly, the khatha was mutated in his name and he was paying the necessary taxes to the concerned authorities. Throughout he has been in lawful possession and enjoyment of the suit property. According to the plaintiff, he R.F.A.No.1825/2019 had also mortgaged the title deeds of the suit property and availed a loan from a Financial Institution and had put up construction in the suit schedule property and leased it to the tenants. The defendants who had no manner of right, title or interest over the suit property, were trying to interfere in his lawful possession of the suit property, which constrained him to institute a suit against the defendants for the relief of permanent injunction. 10. As observed above, the defendants, though appeared through their counsel, did not file their Written Statement, as such, the Trial Court by its order dtd. 20/4/2015 took that the defendants have not filed their Written Statement and proceeded further in the matter. However, of-late, the defendants filed interlocutory applications - I.A.Nos.5 and 6, both under Sec. 151 of the Code of Civil Procedure, 1908, (hereinafter for brevity referred to as "the CPC") seeking recalling of the order dtd. 20/4/2015 and permitting the defendants to file their Written Statement. According to the defendants, they had also filed Written Statement along with I.A.Nos.5 and 6 which were filed on 23/11/2018. After receiving objections to the said interlocutory applications, the Trial Court by its order dated R.F.A.No.1825/2019 27/4/2019 passed a common order, rejecting both the interlocutory applications, i.e. I.A.Nos.5 and 6 along with one more interlocutory application bearing I.A.No.7 which was said to have been filed by the defendants for recalling PW-1 for his cross-examination. 11. Aggrieved by the common order of the Trial Court passed on I.A.Nos.5, 6 and 7 dtd. 27/4/2019, the defendants filed writ petitions before this Court in Writ Petition Nos.26780- 782/2019 (GM-CPC). 11. Aggrieved by the common order of the Trial Court passed on I.A.Nos.5, 6 and 7 dtd. 27/4/2019, the defendants filed writ petitions before this Court in Writ Petition Nos.26780- 782/2019 (GM-CPC). However, the said writ petitions came to be dismissed as withdrawn by observing that during the pendency of the said writ petitions, the Original Suit itself was disposed of by the Trial Court. It is taking the said observation made by this Court in the aforesaid writ petitions, the learned counsel for the appellants/defendants submitted in his argument that, this Court in the said writ petitions has given him the liberty to agitate and contest the rejection of I.A.Nos.5 and 6 by the Trial Court, as uncalled for. He submitted that though with some delay, still, the defendants had filed their Written Statement and the defendants, more particularly, defendant No.2 himself being a bona fide R.F.A.No.1825/2019 purchaser of the suit schedule property, cannot be denied or deprived of contesting the matter merely because of there being some delay in filing the Written Statement by them. Learned counsel further submitted that apart from that, the Trial Court was also not correct in disposing of the main suit itself when the interlocutory applications - I.A.Nos.1, 3 and 4 were still pending for consideration. Learned counsel further submitted that the delay in filing the Written Statement was for the reason of the defendants also filing an Original Suit in O.S.No.452/2015 against the plaintiff in the present case and the settlement talks between the parties were being continued for a long time. However, the Trial Court did not notice the said aspect. 12. The learned counsel for the respondent (plaintiff) in his argument vehemently submitted that, no reasons are forthcoming for the delayed filing of the Written Statement by the defendants in the Trial Court. He also submitted that no liberty has been granted to the defendants (appellants herein) by this Court in the writ petitions filed by them, to raise the issue of the correctness of the R.F.A.No.1825/2019 rejection of their I.A.Nos.5 and 6 by the Trial Court in this appeal. He also submitted that no liberty has been granted to the defendants (appellants herein) by this Court in the writ petitions filed by them, to raise the issue of the correctness of the R.F.A.No.1825/2019 rejection of their I.A.Nos.5 and 6 by the Trial Court in this appeal. He also submitted that the plaintiff/respondent is the earlier purchaser of the suit schedule property which he had purchased in the year 1983 itself, as such, the defendants in the Court below who claims to have purchased the very same property in the year 2014, cannot contend that they have a better case compared to that of the plaintiff. As such, even on merits also, the defendants in the Trial Court have no case. 13. Admittedly, the defendants who were served with the suit summons though appeared through their counsel at the earliest point of time, as long back as in the month of January 2015, did not file their Written Statement. However, it was only with a delay of three years and more, they appear to have filed the Written Statement along with I.A.Nos.5 and 6, both filed under Sec. 151 of the CPC, seeking for recalling the order dtd. 20/4/2015 and seeking permission to file their Written Statement. The Trial Court in its brief order passed on I.A.Nos.5, 6 and one more interlocutory application - I.A.No.7, in its common order observing that sufficient time since had been granted to the defendants to file their Written Statement since R.F.A.No.1825/2019 they have not filed the same and not shown the reasons for the delay in filing the Written Statement, proceeded to reject both the interlocutory applications- I.A.Nos.5 and 6, vide its order dtd. 27/4/2019. 14. The defendants in the Trial Court had challenged the said order dtd. 27/4/2019 passed on I.A.Nos.5 and 6 before this Court by filing Writ Petition Nos.26780-782/2019 (GM-CPC). As observed above, the said writ petitions came to be dismissed as withdrawn, since during the pendency of the said writ petitions, the Original Suit itself was disposed and decreed by the Trial Court. However, while disposing of the writ petitions, this Court has made a specific observation that the contention of the writ petitioners as regards the validity of the impugned order was kept open to be raised as provided for under Sec. 105 of the CPC in the appeal proceedings in RFA No.1825/2019 which had already been initiated. However, while disposing of the writ petitions, this Court has made a specific observation that the contention of the writ petitioners as regards the validity of the impugned order was kept open to be raised as provided for under Sec. 105 of the CPC in the appeal proceedings in RFA No.1825/2019 which had already been initiated. The said observation of this Court made in the said writ petitions would clearly go to show that, by the time the writ petitions came to be disposed of, the present appeal had already been instituted by the defendants and noticing the pendency of R.F.A.No.1825/2019 the present Regular First Appeal, the writ petitions came to be disposed of, reserving liberty to the petitioners therein (appellants herein) to raise the contention regarding the dismissal of the I.A.Nos.5 and 6, as provided under Sec. 105 of the CPC. Therefore, it cannot be construed that, the dismissal of I.A.Nos.5 and 6 by the Trial Court was considered by this Court on its merit in the writ petitions, when still, the writ petitions came to be dismissed. Thus, there is no bar for the present defendants (appellants herein) to contend the rejection of their I.A.Nos.5 and 6 by the Trial Court in this appeal. 15. When the common order passed on I.A.Nos.5 and 6 by the Trial Court which is dtd. 27/4/2019 is considered, as observed by me above, in its brief order, the Trial Court has only observed that, the applicants therein (defendants in the Original Suit) have not shown the reasons for delayed filing of the Written Statement by them. With the said observation, both the applications came to be rejected by the Trial Court. While making the said observation, it appears that the Trial Court did not notice the reasons shown by the applicants therein (defendants) that they too had instituted an Original Suit bearing O.S.No.452/2015 against the plaintiff with respect to the very R.F.A.No.1825/2019 same suit schedule property and that they had also submitted to the Court that a miscellaneous case was also filed by them to get both the suits tried by the same Court and thereafter, there was a talk of settlement also between the parties which prolonged for a long duration and did not materialise, thus, there was delay in filing the Written Statement. This contention taken up by the applicants in I.A.Nos.5 and 6 (defendants) in the Trial Court appears to have not been taken note of or considered by the Trial Court. It is not in dispute that the defendants also had filed an Original Suit bearing O.S.No.452/2015. The learned counsel for the respondent/ plaintiff himself submits that, seeking clubbing of the suit in O.S.No.452/2015 with O.S.No.185/2015, from which the present appeal has arisen, the defendants had also filed an interlocutory application bearing I.A.No.8 in the Trial Court, which also came to be rejected by the Trial Court by its order dtd. 26/6/2019. Therefore, the fact remains that, with respect to the very same suit schedule property, both the parties had filed one each Original Suits against the other. It is in such background, the defendants had stated in their interlocutory applications - I.A.Nos.5 and 6 in the Trial Court that, the parties had R.F.A.No.1825/2019 settlement talks, however, the same could not materialise, as such, the delay had taken place. In such circumstance and considering the nature of the suit and more importantly, the contention of the defendants in their interlocutory applications - I.A.Nos.5 and 6, both filed under Sec. 151 of the CPC that, they too had filed an Original Suit with respect to the very same suit property against the plaintiff, the Trial Court ought not to have rejected their interlocutory applications, seeking permission for filing the Written Statement, without attributing any convincing reasons. Thus, I am inclined to accept the argument of the learned counsel for the appellants/defendants that, the defendants in the Trial Court ought to have been given one more opportunity to file their Written Statement and the Written Statement filed along with I.A.Nos.5 and 6 ought to have been accepted and taken on record by the Trial Court, by allowing I.A.Nos.5 and 6 filed by the defendants. 16. It is not in dispute that the interlocutory applications - I.A.Nos.1, 3 and 4 filed by the parties in the Trial Court were not disposed of by the Trial Court, though the Original Suit itself was disposed of by it. I.A.No.1 was filed by the plaintiff under Order XXXIX, Rules 1 and 2 read with Sec. 151 of the CPC, at the R.F.A.No.1825/2019 time of institution of the suit itself. I.A.No.1 was filed by the plaintiff under Order XXXIX, Rules 1 and 2 read with Sec. 151 of the CPC, at the R.F.A.No.1825/2019 time of institution of the suit itself. I.A.No.3 was filed by the defendants under Sec. 151 of the CPC and I.A.No.4 was filed by the plaintiff under Order VIII Rule 1(a) and Rule 2 read with Sec. 151 of the CPC. It is a settled principle that before disposing of the main suit or the main matter, the pending interlocutory applications have to be necessarily disposed of by the concerned Court unless those interlocutory applications are marked for hearing and disposal along with the main petition, suit or appeal. In the instant case, admittedly, none of those interlocutory applications (i.e.I.A.Nos.1, 3 and 4) were earmarked for disposal along with the main suit. Even otherwise also, even in the judgment passed by the Trial Court also, there is no mentioning about the pendency of these interlocutory applications or fate of those interlocutory applications, after the disposal of the main suit. Therefore, the Trial Court was not justified in disposing of the main Original Suit itself without disposing of I.A.Nos.1, 3 and 4 filed by the respective parties, which were pending for consideration before it. R.F.A.No.1825/2019 17. Learned counsel for the respondent/plaintiff in his argument also contended that, the conduct of the defendants has to be considered in not disclosing the pendency of the said Writ Petition Nos.26780-782/2019 while filing I.A.No.8 by them in the Trial Court. The said contention is not convincing for the reason that, as already observed above, I.A.No.8 has got nothing to do with the pendency of the Writ Petition Nos.26780-782/2019 filed by the defendants before this Court, since the said I.A.No.8 was only for seeking an order for clubbing the Original Suit in O.S.No.452/2015 with O.S.No.185/2015. As such, the said contention of the learned counsel is not acceptable. 18. As such, the said contention of the learned counsel is not acceptable. 18. Lastly, the contention of the respondent/plaintiff that the defendants in the Trial Court have no merit in their case, as such also, the impugned order does not warrant any interference by this Court, is not acceptable, for the reason that, since this Court has arrived at an observation that the Trial Court ought to have given one more opportunity for the defendants to file their Written Statement, it is not an appropriate stage to assess the merits of the Original Suit or the contention which is yet to be taken up by the defendants in the Trial Court and make any observation in that regard. Thus, without touching the alleged R.F.A.No.1825/2019 merit of the suit filed by the plaintiff in the Trial Court, suffice it to say that, the defendants, though have attempted to file their Written Statement with some inordinate delay, considering the special circumstances and also the nature of the case, confining the finding to the case on hand only, deserve an opportunity to file the Written Statement in the Trial Court and contest the matter, however, at the same time, for the said delayed filing of the Written Statement, since the plaintiff was put to considerable inconvenience, the permission to file Written Statement in the Trial Court would be only on payment of costs. Thus, the order passed on I.A.Nos.5 and 6 by the Trial Court is deemed to have been set aside and the said I.As are required to be treated as allowed. Consequently, the impugned judgment and decree passed by the Trial Court deserves to be set aside and the matter has to be remanded to the Trial Court for its fresh disposal in accordance with law. Accordingly, I proceed to pass the following: ORDER [i] The Regular First Appeal is allowed-in- part. R.F.A.No.1825/2019 [ii] The impugned judgment and decree dtd. 6/7/2019, passed by the learned XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-36), in O.S.No.185/2015, is set aside; [iii] The order of the Trial Court dtd. 20/4/2015, holding the defendants as not filed their Written Statement is set aside. The Written Statement said to have been filed by the defendants along with I.A.Nos.5 and 6 shall be taken on record by the Trial Court. 20/4/2015, holding the defendants as not filed their Written Statement is set aside. The Written Statement said to have been filed by the defendants along with I.A.Nos.5 and 6 shall be taken on record by the Trial Court. However, the applicants in I.A.Nos.5 and 6 who are the appellants herein (defendants) shall pay costs of Rs.5,000.00 (Rupees Five Thousand Only) to the plaintiff in the Trial Court in that regard, within seven days of the 1st hearing of the case by the Trial Court after remand of this matter; [iv] The matter stands remanded to the learned XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-36), with a direction to proceed further in the matter by framing appropriate issues, giving opportunity to the plaintiff to lead his further evidence, if any, in the matter and to the defendants also to lead their evidence and dispose of the matter in accordance with law. [v] Considering the age of the Original Suit in the Trial Court and the nature of the suit, it is appreciated that the Trial Court shall dispose of the R.F.A.No.1825/2019 suit afresh on its merit at the earliest, however, not later than five months from today. [vi] In order to avoid any further delay in disposal of the original suit, both side parties are directed to appear before the learned XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-36), without anticipating any fresh notice or summons from it on 6/12/2021 at 11:00 a.m. and to assist in further proceedings without taking any further adjournment in the matter. In view of disposal of the main appeal, pending I.A.No.1/2019 does not survive for consideration. Registry to transmit a copy of this judgment to the concerned Court immediately.