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2023 DIGILAW 203 (KAR)

T. C. Srinivas v. Ramanna

2023-02-02

H.P.SANDESH

body2023
JUDGMENT H.P. Sandesh, J. - This matter is listed for admission today. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents. 2. This appeal is filed challenging the judgment and decree dated 04.01.2022 passed in R.A.No.67/2018 on the file of the II Additional District & Sessions Judge at Chikkamagaluru. 3. The factual matrix of the case of the plaintiffs before the Trial Court is that there was a sale transaction between the plaintiffs' father Ramanna and defendants and registered sale agreement was executed on 03.03.2014 and the earnest money of Rs.7 Lakhs was paid and the balance amount of Rs.1 Lakh to be paid within the time stipulated i.e., six months in order to complete the sale transaction. The plaintiff was ever ready and willing to perform his part of contract. 4. In pursuance of the suit summons, the defendants have appeared and filed the written statement contending that it was only a loan transaction and only for the name sake the sale agreement came into existence. The Trial Court based on the pleadings framed the issues and given an opportunity to lead the evidence of both the parties. 5. The plaintiffs in order to substantiate their case plaintiff No.1(b) has examined himself as P.W.1 and also examined two witnesses as PWs.2 and 3 and got marked the documents as Ex.P1-Registered Agreement of Sale and Ex.P2-RTC Extract. On the other hand, the defendants have not led any evidence before the Trial Court nor produced any document. 6. The Trial Court after considering both oral and documentary evidence available on record decreed the suit directing the defendants to receive the balance consideration amount of Rs.1 Lakh and to execute the registered sale deed within three months from the date of the order. If the defendants fail to execute the sale deed within time, then the plaintiffs have right to approach the Court to get register the sale deed through the process of the Court. 7. Being aggrieved by the said judgment and decree, the defendants had filed an appeal in R.A.No.67/2018 before the First Appellate Court contending that no opportunity was given to lead evidence and only three short dates were given, then, the Trial Court proceeded to pass the judgment and decree. 7. Being aggrieved by the said judgment and decree, the defendants had filed an appeal in R.A.No.67/2018 before the First Appellate Court contending that no opportunity was given to lead evidence and only three short dates were given, then, the Trial Court proceeded to pass the judgment and decree. They have also filed an application under Order XLI Rule 27 of CPC., praying the First Appellate Court to allow them to lead their defense evidence and to examine the witnesses on their behalf. The First Appellate Court on considering the application as well as the grounds urged in the appeal formulated three points, viz., whether the appellants have made out valid grounds to invoke I.A.No.II filed under Order XLI Rule 27 of CPC, whether the Trial Court has committed an error in decreeing the suit of plaintiffs and whether it requires an interference of this Court. The judgment of the Trial Court is perverse and the First Appellate Court on consideration of both oral and documentary evidence placed on record answered all the points for consideration as negative and dismissed the appeal. Hence, the present second appeal is filed before this Court. 8. The learned counsel appearing for the appellants in the present appeal would vehemently contend that the principles of natural justice has not been met while considering the suit and no opportunity was given and only three adjournments were given and the matter was hurriedly disposed of. Even an attempt is made before the First Appellate Court to lead evidence and the same was also not considered by the First Appellate Court in a proper perspective. Hence, it requires interference. The learned counsel for the appellants also brought to the notice of this Court the order sheet of the Trial Court, wherein, three adjournments were given in the same month and taken as no defendants' evidence. 9. Per contra, learned counsel appearing for the respondents/plaintiffs would vehemently contend that the defendants/appellants have not led evidence when the opportunity was given and also not utilized the opportunity given by the Trial Court. Now they cannot make any complaint with regard to the findings of the Trial Court. The learned counsel would vehemently contend that though an application is filed under Order XLI Rule 27 of CPC., they have not made out any ground and sufficient cause is not shown for not leading the evidence before the Trial Court. Now they cannot make any complaint with regard to the findings of the Trial Court. The learned counsel would vehemently contend that though an application is filed under Order XLI Rule 27 of CPC., they have not made out any ground and sufficient cause is not shown for not leading the evidence before the Trial Court. The learned counsel would vehemently contend that the First Appellate Court also by formulating point No.1 with regard to Order XLI Rule 27 of CPC., came to the conclusion that for the whims and fancy of the defendants, the Court cannot invoke Order XLI Rule 27 of CPC., and the detailed reasons are given while considering point No.1 in paragraph No.16 with regard to giving an opportunity to lead the additional evidence. Hence, no ground is made out. The learned counsel also would submit that the provision invoked under Order XLI Rule 27 of CPC., is also not applicable. 10. Having heard the respective counsel and also on perusal of the material available on record, the suit was filed in the year 2017 for the relief of specific performance and also the records discloses that in O.S.No.9/2017, P.W.1 was examined on 03.08.2018. P.W.1 was also cross-examined on 23.8.2018. P.W.2 also examined on behalf of the plaintiffs on 03.08.2018. Further examined and cross-examined on 23.08.2018 itself. The other witness is P.W.3, who also has been examined on 03.08.2018 and cross-examined on 23.08.2018. The order sheet also reveals that after the closure of plaintiffs' evidence on 23.08.2018, the date is fixed for defendants' evidence on 06.09.2018. On that day, the learned counsel appearing for the defendants' sought time to lead evidence and the case is adjourned to 14.09.2018. On that day, defendant Nos.1 to 3 are absent, there was no representation. Hence, taken as NIL. Learned counsel appearing for defendant No.4 sought time. Hence, adjourned the matter to 18.09.2018. Once again defendant Nos.1 to 3 are absent and at request posted the matter for defendants No.4's evidence to 22.09.2018. On 22.09.2018, defendant No.4's evidence is also taken as NIL, heard the arguments on the same day and reserved the matter for judgment. 11. Having considered the dates given for evidence, no doubt, the Trial Court has given the dates for defendants to lead evidence. In total, two dates are given to the appellants and three dates to defendant No.4. On 22.09.2018, defendant No.4's evidence is also taken as NIL, heard the arguments on the same day and reserved the matter for judgment. 11. Having considered the dates given for evidence, no doubt, the Trial Court has given the dates for defendants to lead evidence. In total, two dates are given to the appellants and three dates to defendant No.4. The defendants are not shown any interest in leading the evidence. In one occasion sought time and on the next date itself, the evidence of defendant Nos.1 to 3 was taken as NIL. At the instance of defendant No.4's counsel, the matter was adjourned. The Trial Court when the case was posted for defendant No.4's evidence on 22.09.2018, defendant No.4's evidence has taken as NIL and also heard the arguments of plaintiffs' counsel and posted the matter for judgment. 12. Having taken note of the said fact into consideration and also when an application is filed before the First Appellate Court seeking permission to lead evidence by invoking Order XLI Rule 27 of CPC and the First Appellate Court no doubt formulated the points and given the reasoning and the very approach of the First Appellate Court while considering the application filed under Order XLI Rule 27 of CPC., ought to have taken note of the records of the Trial Court, particularly, order sheet and the same has not been considered. But only in observation made in paragraph No.16 came to the conclusion that now the appellants are shifting their negligence in prosecuting the matter on the counsel appearing before the Trial Court. But the fact is that defendant Nos.1 to 3 have not led any evidence before the Trial Court, is not in dispute. But considering the dates given for defendants' evidence and also considering the order sheet of the Trial Court, the Trial Court hurriedly proceeded and passed the judgment. But the fact is that defendant Nos.1 to 3 have not led any evidence before the Trial Court, is not in dispute. But considering the dates given for defendants' evidence and also considering the order sheet of the Trial Court, the Trial Court hurriedly proceeded and passed the judgment. The First Appellate Court in the judgment came to the conclusion that it is not the case of the appellants that they were tried for leading such a evidence before the Trial Court which ought to have been admitted but the Trial Court has refused to admit such evidence or it is also not the case of appellants that in spite of exercise of due diligence, they were unable to led such evidence before the Trial Court; but the fact is that the appellants have not taken any pain to lead their main evidence itself before the Trial Court, despite sufficient opportunity. Hence, came to the conclusion that the provision under Order XLI Rule 27 of CPC., cannot be invoked at the sweet will and pleasure of parties and the said provision will come to rescue of diligent parties and not for the rescue of negligent. Considering these grounds the First Appellate Court dismissed I.A.No.II filed under Order XLI Rule 27 of CPC. 13. Admittedly, the defendants have not led any evidence. This Court has pointed out that the Trial Court hurriedly proceeded to pass the judgment and one opportunity was given to the defendants to lead evidence and on the very next date, it was taken as NIL. When defendant No.4's counsel also sought time, the time was given to lead defendant No.4's evidence. On the very next date, defendant No.4's evidence was taken as NIL and heard the arguments of the plaintiffs and reserved the matter for judgment. This aspect has not been considered by the First Appellate Court and instead of came the conclusion that there was negligence on the part of the appellants. Having taken note of the said fact into consideration, the matter is not decided on merits. Hence, it is appropriate to remand the matter to the First Appellate Court to give an opportunity to the appellants/defendants and record the evidence and give the finding on the same. Having taken note of the said fact into consideration, the matter is not decided on merits. Hence, it is appropriate to remand the matter to the First Appellate Court to give an opportunity to the appellants/defendants and record the evidence and give the finding on the same. This Court has to take note of even the conduct of the appellants/defendants also, when an opportunity is given not led the evidence and not appeared before the Trial Court. Hence, this Court has to impose the cost on the appellants and direct the First Appellate Court to dispose of the matter within the time bound period. 14. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed. (ii) The impugned judgment and decree of the First Appellate Court dated 04.01.2022 passed in R.A.No.67/2018 is hereby set aside. Consequently I.A.No.II filed under order XLI Rule 27 of CPC is allowed permitting to lead evidence by the appellants herein. (iii) The matter is remanded to the First Appellate Court to consider the matter afresh. (iv) The First Appellate Court is directed to dispose of the matter within four months from 27.02.2023. (v) The parties and the respective counsel are directed to appear before the First Appellate Court on 27.02.2023 without expecting any separate notice from the First Appellate Court. (vi) Both the parties and the respective counsel are directed to assist the First Appellate Court to dispose of the matter within the stipulated period of four months. (vii) The Registry is directed to transmit the records to the First Appellate Court, forthwith to enable the First Appellate Court to take up the matter on 27.02.2023 subject to payment of cost of Rs.1,00,000/- payable to the plaintiffs. (viii) Only on the condition of payment of cost, the First Appellate Court is directed to take up the matter on payment of cost of Rs.1,00,000/-(Rupees One Lakh only) payable to the plaintiffs. If cost is not paid, the appellants will not enure the benefit of this order. (ix) The Registry is directed to refund the Court Fee as per Section 64 of the Karnataka Court Fees and Suit Valuation Act, 1955 in favour of the appellants. 15. In view of disposal of the appeal, I.As, if any do not survive for consideration, the same stand disposed of.