Maruti Kallolappa Gayakawad vs Yallappa Kallappa Mudalagi

B.V. Nagarathna, J.—1. Though the appeal is listed for admission with the consent of learned counsel appearing on both sides, it is heard finally.

For the sake of convenience, parties shall be referred to in terms of their status before the trial Court.

The defendant in O.S. No. 442/2010, has preferred this second appeal, assailing the judgment and decree passed in R.A. No. 66/2015 dated 04/11/2015, by the Senior Civil Judge & JMFC, Raibag, by which, judgment and decree of the trial Court passed in O.S. No. 442/2010 dated 15/09/2014, has been affirmed.

Briefly stated, the facts are that respondent No. 1 herein had filed the suit seeking relief of specific performance of agreement to sell dated 01/10/2007. In the said suit, summons and notices were served on defendant. Defendant did not file written statement despite service of summons. He remained absent and was placed ex-parte by order dated 19/03/2011. Thereafter, on 27/06/2013, plaintiff''s suit was dismissed for non-prosecution. Plaintiff filed Civil Misc. No. 9/2013, seeking restoration of the suit to its original file. Though notice of the miscellaneous proceeding was served on defendant, he remained ex-parte. But, by order dated 29/03/2014, the suit was restored on the file of the trial Court. The matter was posted to 22/04/2013. The trial Court has observed that "even after restoration of the suit, defendant did not appear and contest the suit".

In support of his case, respondent - plaintiff examined himself as P.W.1. He produced two documents, which were marked as Exs. P-1 and P-2. Of course, defendant did not let in any evidence.

The trial Court had raised the following points for its consideration:--

"1. Whether the plaintiff proves that the defendant has agreed to sell the suit land for a consideration amount of Rs. 2,37,475/- and executed a registered agreement of sale dated 01/01/2007 in favour of the plaintiff and received a sum of Rs. 1,75,000/- as earned money as alleged?

Whether the plaintiff further proves that the defendant agreed to execute registered sale deed on or before 01/10/2010?

Whether the plaintiff further proves that he has been ready and willing to perform his part of contract by paying balance sale consideration of Rs. 62,475/-?

Whether the plaintiff further proves that defendant has committed breach of contract?

Whether the plaintiff is entitled for specific performance of contract as sought for?

What order or decree ?"

It answered Point Nos. 1 to 5 in the affirmative and decreed the suit by directing defendant to execute a registered sale deed in favour of plaintiff in respect of suit schedule "A" land, within three months from the date of the order, failing which the plaintiff was at liberty to get it registered through the process of the Court. Being aggrieved by the judgment and decree of the trial Court dated 15/09/2014, defendant filed R.A. No. 66/2015 before the first appellate Court, which raised the following points for its consideration:--

"1. Whether the Trial Court has not properly appreciated the oral and documentary evidence produced by the respondent/plaintiff before it?

Whether there are grounds to remand the matter?

What order or decree?"

It answered Point Nos. 1 and 2 in the negative and dismissed the appeal by confirming the judgment and decree of the trial Court. It is against the said judgment and decree of the first appellate Court dated 04/11/2015 that the second appeal has been preferred.

I have heard learned counsel for appellant, learned counsel for respondent and perused the material on record.

During the course of submission, learned counsel for appellant pointed out that the first appellate Court did not issue any notice to respondent - herein in the appeal and on hearing appellant at the time of admission and before issuance of the notice to respondent herein, he dismissed the appeal. This is pointed out with reference to Paragraph Nos. 11 and 12 of the judgment of the first appellate Court. He also pointed out that there was a delay of 73 days in filing the appeal before the first appellate Court. The first appellate Court had in fact, issued notice on the application filed by appellant herein under Section 5 of the Limitation Act, 1963, seeking condonation of delay. The respondent herein had appeared, evidence was let in on the application and the first appellate Court being satisfied that there was sufficient reasons for filing the appeal, had condoned the delay by allowing the application filed under Section 5 of the Limitation Act, 1963, with cost of Rs. 1,000/- payable to Taluk Legal Services Committee. When that was the position in the appeal, the first appellate Court could not have dismissed the appeal without issuance of notice to respondent at the time of admission of the appeal. He contended that even though the decree of the trial Court was an ex-parte decree, nevertheless, the first appellate Court ought to have given a second look to the matter after issuance of notice to respondent herein. He therefore, contended that the procedure adopted by the first appellate Court being contrary to settled principles of law, the judgment of the first appellate Court may be set aside as it has simply affirmed the ex-parte judgment of the trial Court in the very first hearing without calling for records and without perusing the record. He therefore submitted that substantial question of law would arise in the appeal and the appeal may be admitted for a detailed hearing.

Per contra, learned counsel supporting the order of the first appellate Court contended that the appellant herein has been remiss in his appearances before the trial Court. He was placed ex-parte. He did not file any written statement and did not cross-examine the plaintiff and could not let in any evidence after restoration of the appeal on the file of the trial Court. As he did not appear before the trial Court, the trial Court was justified in passing a decree against him on the basis of the evidence let in by respondent - plaintiff. The first appellate Court has noted these points and confirmed the judgment and decree of the trial Court. That no substantial question of law would arise in the appeal and the appeal may be dismissed.

Having heard learned counsel for parties and on perusal of the material on record, I am of the view that the appeal has to be admitted to consider the following substantial questions of law:--

"1. Whether the first appellate Court was right in confirming the judgment and decree of the trial Court at the stage of admission of the appeal without perusing the lower Court records and even before issuance of notice to the respondent?

Whether the trial Court was justified in holding that the defendant did not appear to contest the suit after restoration of the suit on the file of the trial Court?"

The facts of the case have been narrated in detail above. What emerges is that defendant was placed ex-parte before the trial Court and he assailed the judgment and decree of the trial Court dated 15/09/2014 before the first appellate Court. There was a delay of 73 days in filing the appeal. The application for condonation of delay filed by the appellant herein was allowed by the first appellate Court. Thereafter, the matter came up for admission of the appeal. But at the stage of admission of the appeal, the first appellate Court dismissed the appeal. It may be that in a case, even without issuance of notice to respondent, appeal may be dismissed provided there are strong legal reasons to do so. That would not be normally on the merits of the matter. But it would be a dismissal in limine on the question of maintainability; on the question of delay or such grounds where the merits of the appeal would not be gone into by the appellate Court. But in the instant case, at the stage of admission, without issuance of notice to respondent, first appellate Court framed a point for consideration and at the stage of admission, dismissed the appeal on merits. There is a glaring irregularity in the procedure adopted by the first appellate Court inasmuch as the first appellate Court has not given a second look to the matter. The first appellate Court is the Court of not only on the questions of law but also on questions of fact. The questions which arise in the appeal have to be considered in light of the pleadings and evidence on record. That could be done only after issuance of notice to respondent and calling for the lower Court records. When an appeal is to be dismissed on merits by the first appellate Court, the same has to be done after hearing both sides in appeal by issuance of notice to them and after considering the lower Court records. At the stage of admission, the first appellate Court cannot dismiss an appeal on merits without going into the records of the lower Court. On that short point alone, substantial question of law No. 1 would have to be answered in favour of the appellant herein.

As far as the second substantial question of law is concerned, it is noted from the judgment of the trial Court that no doubt, defendant did not file written statement in the suit despite service of notice to him and he was placed ex-parte on 19/03/2011. The suit itself was dismissed for non-prosecution. It was restored thereafter in Civil Misc. No. 9/2013. It is also true that in the civil miscellaneous proceeding, though defendant was served, he did not appear in that proceeding. But once the suit was restored on the file of the trial Court, it is not forthcoming as to whether after restoration, notice was issued to the defendant. In the absence of any notice from the trial Court, after restoration, no fault can be found with the defendant for not appearing in the suit to contest the same. In that view of the matter, there is a procedural irregularity committed by the trial Court in not issuing notice to the defendant after restoration of the suit on the file of the trial Court pursuant to order dated 29/03/2014. Therefore, the judgment and decree of the trial Court has been passed without giving an opportunity to defendant to contest the matter and as a result, there has been violation of principles of natural justice. On that short ground alone, the judgment and decree of the trial Court has to be set aside by answering substantial question of law No. 2 in favour of appellant herein.

In the result, judgment and decree of the Courts below are set aside. The matter is remanded to the trial Court, so as to give an opportunity to the defendant to file his written statement before the trial Court. As parties before the suit are represented by their respective counsel, they are directed to appear before the trial Court on 04/04/2016, without expecting any separate notice from that Court. On that date or on any other date to be ordered by the trial Court, appellant herein i.e., defendant, shall file his written statement. The trial Court shall proceed to dispose of the suit in accordance with law.

The appeal is disposed of in the aforesaid terms. Parties to bear their respective costs.