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2025 DIGILAW 581 (KAR)

Divya J. v. B. N. Govindaiah, S/o Late Nanjaiah

2025-06-26

H.P.SANDESH

body2025
JUDGMENT : H.P. Sandesh, J. This appeal is filed against the concurrent finding. Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. The factual matrix of the case of the plaintiffs before the Trial Court is that the suit was filed seeking the relief of declaration and cancellation of sale deed dated 31.08.2017 as null and void and also sought for the relief of permanent injunction against the defendant. The very case of the plaintiffs/respondents before the Trial Court is that plaintiff No.1 was the absolute owner in possession of the suit schedule property. The suit schedule property is the part and parcel of Sy.No.105/1 measuring 1 acre 32 guntas of D.Kalenahalli Village, Channarayapattana Taluk. The said land measuring 1 acre 32 guntas of Sy.No.105/1 was granted to plaintiff No.1 by the Tahasildar on 27.05.1978. Pursuant to the said grant, the khata of the property was entered in the name of plaintiff No.1. Out of total extent of 1 acre 32 guntas, plaintiff No.1 transferred the land to an extent of 1 acre 12 guntas in favour of plaintiff No.2. The plaintiff No.2 got alienated the said extent of property vide DC conversion order dated 01.04.2000. After getting the conversion, plaintiff No.2 formed 14 residential sites in the said land by obtaining permission from Town Municipality Council, Channarayapattana. Later on, plaintiff No.2 gifted site Nos.1, 2, 7 and 8 in favour of her son i.e., plaintiff No.3 under gift deed dated 12.12.2016. The plaintiff Nos.1 and 2 are the parents of plaintiff No.3. 3. It is the further case of the plaintiffs that plaintiff No.3 is the Lab Technician and was working under the defendant. The defendant having the dominant status over plaintiff No.3, instigated the mind of plaintiff No.3 to form a partnership firm with an intention to grab the suit schedule property. In furtherance of the said motive, the partnership deed was executed on 02.01.2017 by the defendant with plaintiff No.3. The defendant brain washed the mind of plaintiff No.3 with an ambition to commence business of Super Specialty Hospital under the name and style of Jaipal Hospital in the suit schedule property and got executed the partnership deed. Further, the defendant with the same ill will and motive got registered another partnership deed on 30.08.2017 with plaintiff No.3 to commence a business of Super Specialty Hospital in the schedule property. Further, the defendant with the same ill will and motive got registered another partnership deed on 30.08.2017 with plaintiff No.3 to commence a business of Super Specialty Hospital in the schedule property. The previous partnership deed dated 02.01.2017 was dissolved. Again on 30.08.2017, the defendant created sale deed in respect of the suit schedule property from the plaintiffs without the knowledge of the plaintiffs. When the partnership deed was executed on 30.08.2017, the question of execution of sale deed on 31.08.2017 did not arise at all. Without bringing into notice of the plaintiffs the defendant got executed sale deed and prior to the said sale deed she also transferred the suit schedule property in her name. The plaintiffs subsequently came to know that the defendant played a fraud with them and immediately took an action to institute suit and accordingly filed the suit for cancellation of sale deed dated 31.08.2017 and for permanent injunction. 4. The defendant in pursuance of the suit summons appeared through the counsel and did not choose to file the written statement and contest the matter and even not cross- examined the witnesses. The Trial Court having considered the plaint averments, framed the point for consideration as whether the plaintiffs are entitled for the relief as claimed in the plaint. The plaintiffs in order to substantiate their case, examined plaintiff No.3 as P.W.1 and got marked the documents at Exs.P.1 to 39 and also examined another witness as P.W.2. The Trial Court having considered the material available on record, comes to the conclusion that the documents which have been placed before the Court clearly discloses that the alleged sale deed, which is obtained is only a nominal sale deed and no intention to execute such a sale deed in view of the documents which have been in existence between the parties i.e., partnership deed and subsequently on the previous date of alleged sale deed, the document of dissolution of partnership as well as one more fresh partnership was entered on the very same day on 30.08.2017. The Trial Court having taken note of the material available on record, comes to the conclusion that the plaintiffs are entitled for the relief as sought in the plaint and decreed the suit. 5. The Trial Court having taken note of the material available on record, comes to the conclusion that the plaintiffs are entitled for the relief as sought in the plaint and decreed the suit. 5. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed in R.A.No.90/2023 and the First Appellate Court having considered the material available on record, particularly in paragraph No.20 taken note of the appearance of the defendant and did not choose to file the written statement even on number of dates the plaintiffs were examined in part on three dates and the evidence of P.W.1 and P.W.2 was not cross-examined. However, an application was filed for amendment of the plaint and after allowing the application for amendment, an opportunity was given to file the additional written statement and additional written statement was also not filed. Through out not cross-examined the witnesses and the same has been extracted in paragraph No.20. In paragraph No.21, the First Appellate Court made an observation that the Trial Court granted sufficient opportunity to both the parties to conduct trial, but the defendant did not avail the opportunity. It is not the case of the defendant that her request was rejected in any of the stages. Rather on 30.11.2022, after nearly 1½ years, the defendant has also changed her advocate to contest the suit, at this stage also the defendant did not take steps to file the written statement and recall the witnesses examined on behalf of the plaintiffs. Having considered the grounds urged in the appeal memo as well as formulation of the points for consideration, the First Appellate Court comes to the conclusion that inspite of an opportunity was given, the defendant did not avail the opportunity and answered the points for consideration in the negative and confirmed the judgment of the Trial Court. 6. Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court. 7. The main contention of the learned counsel for the appellant before this Court is that inspite of an opportunity is sought before the Trial Court, the same was rejected. The learned counsel contend that an opportunity may be given to the appellant to contest the matter and even exemplary cost may be imposed by this Court and the matter has to be considered on merits. The learned counsel contend that an opportunity may be given to the appellant to contest the matter and even exemplary cost may be imposed by this Court and the matter has to be considered on merits. The learned counsel in support of his contentions, relied upon the judgment of the Apex Court passed in Civil Appeal No.4151/2022 decided on11.07.2022, wherein the Apex Court taken note of that the First Appellate Court gave specific findings while setting aside the exparte judgment and decree that defendant Nos.2 and 3 have made out a sufficient cause for setting aside the exparte judgment and decree. But while passing the impugned judgment and order, the High Court has not at all dealt with and considered the findings recorded by the First Appellate Court, recorded while setting aside exparte judgment and decree. The High Court has set aside the order passed by the First Appellate Court solely on the ground that as the defendant Nos.2 and 3 did not file the written statement and contested the suit, the reopening of the suit would become futile. However, as observed and held that this Court in the case of Sangram Singh v. Election Tribunal reported in AIR 1955 SC 425 , on setting aside the exparte decree and on restoration of the suit, the parties to the suit shall be put to the same position as they were at the time when the exparte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time, they can be permitted to participate in the suit proceedings and cross-examine the witnesses. Having set aside the order of the High Court, gave an opportunity to contest the matter and also made an observation that the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the exparte judgment and decree on merits. 8. The learned counsel referring this judgment would contend that in the case on hand also, similar set of facts and this Court can set aside the judgment and give an opportunity to the appellant. 9. 8. The learned counsel referring this judgment would contend that in the case on hand also, similar set of facts and this Court can set aside the judgment and give an opportunity to the appellant. 9. The learned counsel also relied upon the judgment of the Apex Court in the case of RAFIQ AND ANOTHER v. MUNSHILAL AND ANOTHER reported in (1981) 2 SCC 788 and brought to the notice of this Court paragraph No.3, wherein it is held that the disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. 10. The learned counsel referring these two judgments would contend that an opportunity has to be given to the appellant. 11. Per contra, the learned counsel for the respondents has produced the list of documents before this Court i.e., copy of the grant certificate issued in favour of plaintiff No.1, order of conversion dated 31.03.2000, technical sanction issued by the Urban Development Authority, Channarayapatna in 2016, building licence issued by the Municipality, Channarayapatana on 24.10.2016, partnership entered into between plaintiff No.3 and the defendant on02.01.2017, certificate of Registration of Firm issued by the Registrar of Firms, Hassan on 25.01.2017 consequent upon the earlier partnership deed. The learned counsel also brought to the notice of this Court the endorsement issued by the Registrar of Firms regarding the registration of Firm Jaypal Hospital, Form No.1 issued by the Registrar of Firms with respect to Firm Jaypal Hospital, letter written by the District Registrar to plaintiff No.3 under RTI Act on 18.07.2022, dissolution deed dated 30.08.2017 executed between plaintiff No.3 and the defendant with respect to the dissolution of the partnership dated 02.01.2017. The learned counsel also brought to the notice of this Court the date of purchase of stamp paper on the very same day in the early morning and also entering into one more partnership deed between the defendant and plaintiff No.3 on 30.08.2017 and that was cancellation in the early morning and one more deed of partnership entered on the same day in the afternoon. The learned counsel also brought to the notice of this Court the certificate of registration of Firms issued by the Registrar of Firms in respect of the second partnership deed dated 30.08.2017, endorsement issued by the Registrar of Firms regarding registration of Firm dated 30.08.2017, Form No.1 issued on 30.08.2017, letter written by the District Registrar to plaintiff No.3 under RTI Act on 28.06.2022 and so also the gift deed executed by plaintiff No.2 in favour of plaintiff No.3 after the formation of sites. 12. The learned counsel also brought to the notice of this Court that on the very next date of the new partnership deed, which came into existence on 30.08.2017, the alleged sale deed dated 31.08.2017 came into existence. The learned counsel brought to the notice of this Court that in terms of the sale deed, only cash of Rs.10 lakhs was paid and obtained the sale deed and hence fraud was taken place. The suit was filed for cancellation of the sale deed and an opportunity was given before the Trial Court and for a period of 2 years, the defendant did not file the written statement and only when the matter was posted for judgment, at that juncture, an application was filed to recall the order and not filed the written statement and the Trial Court rejected the same and considered the matter on merits. The learned counsel would contend that the First Appellate Court having considered the grounds urged in the appeal memo, in detail discussed in paragraph Nos.20 to 22 that an opportunity was given to the defendant and confirmed the judgment of the Trial Court. The learned counsel would contend that both the Courts have given an opportunity and now the appellant cannot seek an opportunity again. Even for imposing any cost also, the appellant has not made out any grounds to set aside the judgment of the Trial Court as well as reverse the judgment of the First Appellate Court and no ground is made out to admit the appeal and frame substantial question of law and the question of remanding the matter does not arise. 13. Having heard the learned counsel for the appellant and the learned counsel for the respondents and also considering the material available on record, the plaintiffs placed on record several documents that there was a partnership deed between plaintiff No.3 and the defendant. It is also the specific contention that plaintiff No.3 was working with the defendant and the defendant is a doctor in whose hospital he was working as a Lab Technician. It is important to note that number of documents are placed on record even with regard to the earlier partnership entered into between the parties on 02.01.2017 and the same is registered with the Registrar of Firms. The material discloses that the earlier partnership dated 02.01.2017 was dissolved and on the very same day, one more fresh partnership deed was entered and the same is registered with the Registrar of Firms and to that effect the documents are placed on record i.e., on 30.08.2017. It is important to note that the sale deed is dated 31.08.2017 on the very next date of entering into a new partnership deed. 14. The learned counsel for the appellant would contend that all these documents are disputed and no such documents were entered into between plaintiff No.3 and the defendant. When an opportunity was given before the Trial Court, if no such documents came into existence between the defendant and plaintiff No.3, what prevented the defendant from filing the written statement before the Trial Court, no any explanation. The fact that the defendant appeared before the Trial Court through an advocate on 30.06.2021 and not filed the written statement is not in dispute. The fact that the defendant appeared before the Trial Court through an advocate on 30.06.2021 and not filed the written statement is not in dispute. Even if the earlier advocate was not conducting the case properly, one more advocate Mr.KRM was also engaged in the very same Court and he filed the vakalath on 30.11.2022 and even after engaging the new counsel also, the new counsel also not filed any written statement. Even after engaging the new counsel, P.W.2 was examined before the Trial Court and both P.W.1 and P.W.2 not cross-examined by new counsel who filed vakalath on 30.11.2022 and not contested the matter and even not made any efforts to cross-examine P.W.1 and P.W.2. Subsequently, an application is filed by the plaintiff for further examination of P.W.1 and P.W.1 and after allowing the application, further documents of Exs.P.38 and 39 got marked subsequent to the engaging of new counsel. In view of the non-filing of the written statement, further cross-examination of P.W.1 was taken as nil and thereafter the plaintiffs closed their side evidence. An opportunity was given to the defendant’s evidence and the defendant did not utilize the opportunity and hence it was taken as no defence evidence and thereafter the matter was heard and posted for judgment. 15. Having taken note of the order sheet, which is produced before the Court by the learned counsel for the appellant, the very contention of the appellant that no opportunity was given and not allowed the defendant/appellant to contest the matter, cannot be accepted. Having taken note of the order sheet, it is clear that on 30.06.2021 vakalath was filed by first advocate. Thereafter, the subsequent advocate who filed the vakalath on 30.11.2022 also not contested the matter and even not filed the written statement and objections. Even when the plaint was amended, an opportunity was given to file the additional written statement and the same was not filed and thereafter even for leading evidence of the defendant also an opportunity was given and the said opportunity is also not utilized. It is important to note that the defendant is not a layman and she is doctor, who is running the hospital and according to the defendant, the building was constructed and running the hospital in the very same building, but not made any efforts to file the written statement and contest the matter. It is important to note that the defendant is not a layman and she is doctor, who is running the hospital and according to the defendant, the building was constructed and running the hospital in the very same building, but not made any efforts to file the written statement and contest the matter. It is important to note that the advocate who filed the vakalath on 30.11.2022 also did not cross examine the witnesses subsequent to entering into appearance and the judgment was pronounced on 17.06.2023 and an application was filed on 14.06.2023 after 8 months of entering into appearance before the Trial Court for reopening the case and the same was rejected having taken note of the opportunity was given to the appellant. The very same advocate filed the appeal before the First Appellate Court. The First Appellate Court also having considered the material on record, in paragraph No.20 taken note of all the factors and comes to the conclusion that the appellant has not made out any ground. 16. The learned counsel for the appellant relied upon the judgment of the Apex Court passed in Civil Appeal No.4151/2022 referred supra wherein, the Apex Court having considered the grounds which have been urged, set aside the order of the Trial Court by entertaining the application filed under Order 9 Rule 13 of CPC setting aside the judgment and the same was reversed by the Apex Court referring the judgment in the case of Sangram Singh (supra). Now considering each facts and circumstances of the case, the Court has to look into whether an opportunity is given or not. I have already pointed out that an opportunity was given from 30.06.2021 and the judgment was pronounced in 2023. The appellant even engaged two counsel before the Trial Court, but did not choose to file the written statement and did not cross-examine the witnesses even after engaging the new counsel. Even after engaging of the new counsel, P.W.1 was further examined and additional documents are marked, but the defendant did not file the additional written statement and also not cross-examined the witnesses. When such being the case, the very contention of the learned counsel for the appellant that the matter may be remanded to the Trial Court cannot be accepted. Even after engaging of the new counsel, P.W.1 was further examined and additional documents are marked, but the defendant did not file the additional written statement and also not cross-examined the witnesses. When such being the case, the very contention of the learned counsel for the appellant that the matter may be remanded to the Trial Court cannot be accepted. The judgment relied upon by the learned counsel for the appellant is not applicable to the facts of the case on hand, since ample opportunity was given to the appellant to contest the matter for a period of two years even engaging two counsel before the Trial Court. 17. The learned counsel for the appellant also relied upon the judgment of the Apex Court in the case of Rafiq (supra), wherein the Apex Court discussed with regard to the responsibility of the advocate and the same has been discussed in paragraph No.3 i.e., in respect of a case which is pending before the Appellate Court. In the case on hand, the factual aspects are different. When the matter was before the Trial Court and engaged two counsel before the Trial Court, nothing is done being a doctor who is running the hospital in the very same property after constructing the building after obtaining the sale deed dated 31.08.2017. The material is very clear that earlier there was a partnership deed dated 02.01.2017 and the same was dissolved on the previous day of the sale deed i.e., on 30.08.2017 and on the very same day, one more partnership deed came into existence. It is astonishing that on the very next day i.e., on 31.08.2017, the alleged sale deed of Ex.P.37 came into existence and what made to have the sale deed on the very next day after entering into a new partnership, which was registered before the Registrar of Partnership, no explanation on the part of the appellant. When such being the material available on record and when both the Courts have taken note of the material on record and given an opportunity and opportunity has not been utilized by the appellant, now the question of remanding the matter for fresh consideration does not arise. The Court cannot grant such relief on the whims and fancies of the appellant. The Court cannot grant such relief on the whims and fancies of the appellant. The appellant being a doctor who is running a hospital in the very same building, cannot seek for remand in the second appeal to set aside the matter and fix time bound trial and give direction to dispose of the matter on merits, since the appellant is enjoying the property by obtaining the sale deed on the very next date of new partnership. Hence, I do not find any ground to admit the second appeal and frame any substantial question of law. 18. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.