P.V.Manjunath, S/o Vijayadev vs M.Krishnappa, S/o Muniyappa, & Anr.

This appeal arises out of the judgment and decree dated 16.04.2003 passed by the 24th Additional City Civil Judge in O.S.No.2551/1995. By the impugned judgment the trial Court has dismissed the suit of the plaintiff for declaration that the sale deed dated 6.12.1991 executed in favour of the second defendant by the alleged power of attorney does not bind him.

Respondents are defendants'' No. 1 and 2 before the trial Court. For the purpose of convenience, the parties will be referred herein with their ranks before the trial Court. The subject matter of the suit is the site bearing Nos.99 &100 out of V.P.Khata No.1891, situated at Vijinagapura at Kothnur, Kodandarama Reddy Layout, Bengaluru South Taluk measuring 30'' east to west and 70'' north to south.

The case of the plaintiff in brief is as follows: That he has purchased the suit schedule property under the registered sale deed dated 10.06.1992 from the first defendant and since then he is in possession and enjoyment of the same. The second defendant filed O.S.No.4421/1992 against himself and the first defendant claiming that one N. Prakash Gupta the alleged power of attorney of the second defendant has sold to him the suit schedule property under the registered sale deed dated 06.12.1991. On verification with the first defendant it was found that he has not executed any of such power of attorney in favour of N. Prakash Gupta. The said document is forged one. Therefore, the sale deed does not bind him and affect the sale deed executed by the first defendant on 10.06.1992 in his favour. The first defendant has issued notice to the second defendant that the power of attorney executed in favour of Prakash Gupta is cancelled. Prakash Gupta has issued a reply stating that he has surrendered power of attorney executed by first defendant in his favour. On that count also execution of sale in favour of second defendant is not valid. Defendants No.1 and 2 in collusion with each other filed O.S.No.4421/1992 to harass him suppressing the sale deed in his favour and his possession of the property. Hence the suit.

Both the defendant did not appear on service of the notice, therefore, they were placed exparte.

To prove his case plaintiff got himself examined as PW1 and got marked Exs.P.1 to P.16. The trial Court after hearing the plaintiff, by the impugned judgment dismissed the suit on the following grounds:

(i) N. Prakash Gupta, the alleged Power of attorney holder of the first defendant and executant of the sale deed in favour of the second defendant, is necessary party to the suit and therefore the suit is bad for non-joinder of necessary parties;

(ii) Plaintiff has not taken proper steps to serve the suit summons on the 2nd defendant to give him an opportunity to contest the suit;

(iii) The plaintiff ought to have examined the first defendant, the executant of the sale deed Ex.P1 in his favour and the service of notice- Ex.P.9 on Prakash Gupta;

(iv) Plaintiff claims to have purchased the property by verification of encumbrance certificate and such documents do not reveal the sales of the properties;

(v) Plaintiff''s case that Prakash Gupta surrendered Power of attorney under Ex.P.11-reply notice dated 10.06.1992 after executing sale deed dated 06.12.1991 in favour of the 2nd defendant is hard to believe story

(vi) The plaintiff has no explanation as to why he did not get the suit clubbed with O.S.No.4421/1992.

Sri Varadaraj, learned counsel for the appellant contends that the trial Court committed grave error in dismissing the suit on the aforesaid grounds against its own order regarding sufficiency of service of summons, in the earlier stage of the proceedings. He further contends that the grounds of dismissal of suit are totally erroneous.

Sri Shivakumar, learned counsel for respondent No.2 contends that the result of the suit on hand is dependent on the result of the case in R.F.A. No. 1338/2009 pending before this Court. Having heard the parties, the point that falls for consideration of this Court is "whether the impugned judgment dismissing the suit is sustainable in law".

Reg. non joinder of Prakash Gupta N.

In the suit the plaintiff has not sought any relief against Prakash Gupta. N. Therefore, he is not a necessary party as contemplated under Order 1 Rule 3 (a) C.P.C. Even assuming that he is a proper party, in view of Order 1 Rule 9 C.P.C. and Order 1 Rule 10 (2) of C.P.C. the cannot be dismissed for non joinder of a party. In that event the trial Court could have required the plaintiff to implead the said proper party and proceeded with the matter.

Reg. Service of summons on defendant No.2

The trial Court itself says that the plaintiff was permitted to take notice to defendant No.2 by paper publication and he had taken such notice. On holding that such service is sufficient, the trial Court proceeded with the matter. Having held so the Court at a later stage cannot dismiss the suit on the ground that service is not sufficient or proper.

Reg. clubbing of the suit

The trial Court dismisses the suit finding fault with the plaintiff for not making effort to get the suit in question clubbed with O.S.No.4421/1992. The procedure of clubbing different suits for the purpose of recording common evidence and for disposal by common judgment is adopted to avoid conflicting decision and duplication of the work subject to the questions of law and facts involved in the cases and parties to the cases being common. There is no statutory mandate to the parties to apply for clubbing the suits. Therefore, the said observation of the trial Court and consequential dismissal of the suit is erroneous.

Reg. non examination of defendant No.1 as plaintiff''s witness.

The trial Court states that plaintiff''s should have examined defendant No.1 as his witness to prove the execution of Ex.P.1 the sale deed in his favour. The plaintiff in his plaint contended that defendant No.1 has executed Ex.P.1, the sale deed. Defendants No.1 & 2 did not file the written statement to deny that. When there was no denial the plaintiff had no duty to examine the executant of Ex.P.1 that too his adversary. If the Court entertained any doubt in the proof of Ex.P.1 it could have called up on the plaintiff to clarify its doubt.

For the aforesaid reasons the impugned judgment is unsustainable in law. Since the trial Court has dismissed the suit on technical/preliminary points as discussed above the matter requires to be remanded to the trial Court for fresh disposal. Therefore the appeal is allowed. The impugned judgment and decree is hereby set aside.

The matter is remanded to the Trial Court for fresh disposal in the light of the observations made above after giving opportunity to both the parties. Since the matter is older one the appellant and respondent No.2 are directed to appear before the trial Court on 07.08.2017 without any further notice. No order as to costs.