(Prayer: This R.F.A. is filed Under Section 96 of the Code of Civil Procedure praying against the judgment and decree dated:17.03.2020 passed in O.S.No.517/2018 on the file of the Senior Civil Judge and JMFC., at Devanahalli decreeing the suit for recovery of money.)Aravind Kumar, J.1. Though appeal is listed for Admission by consent of learned Advocates appearing for parties it is taken up for final hearing.2. This appeal is directed against the judgment and decree dated 17.03.2020 passed by Senior Civil Judge & JMFC, Devanahalli, in O.S.No.517/2018 whereunder suit filed by the plaintiff against defendant for recovery of Rs.81,43,500/- with interest @ 18% p.a. and costs came to be decreed by directing the defendant to pay the amount claimed in the suit with interest @18% p.a. within three (3) months from the date of judgment till its realisation. Hence, defendant has filed this appeal for setting aside the same.3. We have heard the learned Advocates appearing for parties namely, Sri.B.Ramesh, learned counsel appearing for appellant and Sri. S.Harish, learned counsel appearing on behalf of Sri. Prashanth P.N, who is on caveat for respondent.4. It is the contention of Sri.B.Ramesh, learned counsel appearing for appellant that trial court committed a serious error in decreeing the suit without considering the fact that there was no opportunity extended to the defendant to prosecute the suit effectively. He would submit that though defendant had engaged the services of advocate to prosecute the suit, said advocate had filed vakalathnama on 22.02.2019 and thereafter matter came to be listed for conciliation on 09.03.2019 and conciliation having failed it was listed before the court on 12.05.2019 and appellant was under the bonafide impression that matter would be settled as he had approached the respondent company along with several documents in support of his claim and he had not been informed by his counsel about listing of the matter before court. Hence, contending that in view of negotiations having continued written statement had not been filed and the case was not contested on merits and learned trial judge committed a serious error in arriving at a conclusion that written statement was not filed on 12.04.2019 and posted the matter to 03.06.2019 for recording plaintiff's evidence. He would also draw the attention of the court to the additional documents produced along with I.A.No.2/2020 filed under Order 41 Rule 27 to contend that appellant has got a very good case on merits and as such appeal may be allowed and judgment and decree passed by the trial court be set aside. He would make an alternate prayer contending, if for any reason this court were to arrive at a conclusion that there was lack of opportunity to the defendant, the matter may be remanded to the trial court for adjudication on merits and defendant is ready and willing to abide by such terms and conditions as may be imposed by the court. Hence, he prays for suitable orders being passed by this court.5. Per contra, Sri. Harish, learned counsel who is on caveat would support the judgment and decree passed by the trial court and he would contend that defendant is a fence sitter and he was very much aware of the proceedings which was going on before trial court and by suppressing the material facts namely that he had received the amount from the plaintiff claiming to be the absolute owner of the land, though he was not and based on his submission and affidavit of undertaking filed by him on 20.04.2019 undertaking thereunder that he would repay the said amount, if any other claim were to raise, now cannot contend that judgment and decree is erroneous.5.1 He would also add that if for any reason the court were to accept the plea of appellant-defendant and remit the matter back to the trial court, he prays that interest of the respondent-plaintiff may be secured by directing the defendant to deposit the decreetal amount so that plaintiff may not be made to run from pillar to post to recover the decreetal amount ultimately if decree is passed in favour of plaintiff. Hence, he prays for dismissal of the appeal or such suitable orders being passed.6. Having heard the learned Advocates appearing for parties and on perusal of judgment and decree passed by the trial court as well as additional documents produced along with I.A.No.2/2020, we are of the considered view that following points would arise for my consideration:(i) Whether judgment and decree dated 17.03.2020 passed in O.S.No.517/2018 by the court of Senior Civil Judge & JMFC, Devanahalli, suffers from any legal infirmity or there has been erroneous appreciation of facts and evidence calling for interference?(ii) Whether I.A.No.2/2020 filed by the appellant-defendant requires to be allowed or dismissed?(iii) What order?Factual matrix which has lead to filing of this appeal requires to be stated in brief and they are:BRIEF BACKGROUND:7. Plaintiff is a Government of India enterprise carrying on the business in construction of power transmission lines. Plaintiff having been entrusted with the task of construction of 765 KV transmission line from Dharamapuri to Tumkur running to 245 kms had to execute the said project and in furtherance of the same, Deputy Commissioner, Bengaluru Rural District, passed an order on 20.11.2017 determining the compensation payable to the land owners over whose land the transmission line would pass. Defendant is said to have represented to plaintiff that he is the absolute owner of the land bearing Sy.No.17 measuring 3 acres 37 guntas situated at Kempathimmanahalli Village, Devanahalli Taluk and is said to have lodged a claim for grant of compensation along with certain documents. Based on the documents so produced by the plaintiff, defendant had disbursed the compensation of Rs.83,43,500/- by transferring it to the account of plaintiff by RTGS transfer. When plaintiff was executing the project by drawing the transmission lines over the land in Sy.No.17, certain persons claiming to be the legal heirs of one Smt.Lakshmamma are said to have made a demand for award of compensation from plaintiff on the ground of they being the owner of the land and interfered with the work of drawing of transmission lines. Legal heirs of Smt. Lakshmamma are said to have got issued a legal notice to the plaintiff enclosing the documents and claiming to be the owner of land bearing Sy.No.17. Immediately on enquiry plaintiff is said to have noticed that defendant is not the owner of said property and by suppressing material fact and playing fraud on plaintiff had received compensation amount. Hence, plaintiff caused a legal notice to the defendant on 31.08.2018, which was received and yet, demand made thereunder was not complied by the defendant. Hence, seeking recovery of said amount plaintiff instituted the suit O.S.No.517/2018 for recovery of the amount paid to plaintiff with interest.8. Summons in the suit was duly served on defendant and he appeared through his counsel, but for reasons best known written submission was not filed. After examining the witness on behalf of plaintiff, in all plaintiff got marked 23 documents as Exs.P-1 to P-23. Trial court has held that evidence of PW1 has remained unchallenged and as such decreed the suit. Hence, the present appeal.RE.POINT NO.1:9. By consent of learned counsel appearing for parties, records of trail court has having not been secured. We notice that there is no dispute to the fact that defendant has not filed the written statement. Though an attempt has been made by the defendant to contend that he was under the bonafide impression that matter would be settled by the plaintiff in the pending conciliation proceedings, said contention is very hard to be believed, inasmuch as, after conciliation having failed on 09.03.2019, matter was posted before Court on 12.04.2019. There is no reason forthcoming as to why the defendant did not appear before Court on 12.04.2019.10. On the said date, learned Trial judge has rightly recorded that written statement of the defendant was not filed and has posted the matter for recording plaintiff's evidence on 03.06.2019. On the said date, at the request of plaintiff, matter was again adjourned to 13.07.2019. Hence, it cannot be gainsaid that defendant on these three dates, viz., 12.04.2019, 03.06.2019 and 13.07.2019 he was not aware of the matter having been posted before court after conciliation talks had failed. In this factual scenario, trial court was left with no other option, but to proceed to record the evidence of plaintiff witness viz., PW1. It was open to the learned Advocate representing the defendant to have made a request before the trial court either seeking leave to permit the defendant to file written statement or atleast could have sought for grant of time to take further instructions from the defendant to enable him to file the written statement or cross-examine PW1. Even this exercise seems to have not been undertaken for reasons best known.11. In this appeal, defendant/appellant is contending that during the second week of August 2019, appellant was suffering from severe viral fever and had been advised bed rest and appellant-defendant also claims to have been admitted to Aster CMI Hospital on 06.12.2019. However, the pleading is silent between 12.04.2019 to first week of August 2019 and from August 2019 to first week of December 2019. In other words, alleged fever is said to have been projected as a ground on which he could not contact the counsel, cannot be accepted for want of sufficient explanation.12. It is also contended that defendant was discharged on 09.12.2019 and at the time of discharge, defendant had been advised to take bed rest for few weeks. It is also pleaded that defendant's wife delivered a female baby and she was admitted to Aster CMI hospital on 13.12.2019 due to severe back ache and fever and hence, contends that he was not able to move around. It is pleaded that defendant contacted his advocate in the first week of March 2020 and was shocked to know that matter was posted for judgment on 17.03.2020. However, there is not even a whisper that defendant had contacted his advocate in the first week of March, 2020 or posting of the matter for judgment 17.03.2020.13. Sri B.Ramesh, learned counsel for the appellant/defendant has contended in this appeal that an application was moved before trail court on 12.03.2020 and it was neither received nor accepted by the learned Trial judge. However, said plea has remained as a plea without any proof, inasmuch as, nothing prevented the defendant to file said application in the Registry, if court had refused to receive it in open court. It is only on judgment being pronounced on 17.03.2020, application is said to have been moved according to Sri.S.Harish, learned counsel appearing for plaintiff/respondent.14. Notwithstanding the contentions raised by defendant, which is rebutted by the plaintiff, fact remains that written statement was not filed by the defendant. As to whether one more opportunity should be given or not has persuaded us to look into the documents, which have been produced along with I.A.No.2/2020. One such document which persuades us to accept the contention of learned counsel for appellant is the purported sale deed dated 24.06.2005, which has been executed by Smt.Lakshmamma, Smt.Sharadamma, Smt.Susheelamma, Sri C.Munireddy and Sri. C.Sonnegowda represented by their General Power of Attorney holder in favour of the defendant - Sri Ravi Agarwal whereunder the property bearing Survey No.17, new No.17/1 of Kempathimmanahalli Village, Kundana Hobli, Devanahalli Taluk, Bengaluru District, measuring 1 acre and 10 guntas excluding 10 guntas of kharab land has been conveyed in favour of defendant. Thus, prima facie, it may not be right to accept the plea of plaintiff that defendant has no semblance of right over the property where transmission line has been drawn by plaintiff. What is the extent of share defendant has got over the said property or whether any right still existed to legal heirs of Smt. Lakshmamma, is a matter which will have to be gone into by the learned Trial judge. For this, an opportunity to raise the defence by filing the written statement ought to be extended to the defendant, though no fault can be laid at the doors of the learned Trial judge. This view gets fortified by the judgment of Hon'ble Apex Court in the case of RAJINDER TIWARI v. KEDAR NATH (DECEASED) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2019) 14 SCC 286 has held as under:"11.4 Fourth, we do not find any justifiable reason to deny the defendant of his right to file the written statement. He was entitled to file the written statement and to adduce oral and documentary evidence for contesting the suit on merits.12. It is a settled law that all the contesting parties to the suit must get fair opportunity to contest the suit on merits in accordance with law. A decision rendered by the courts in an unsatisfactory conducting of the trial of the suit is not legally sustainable. It is regardless of the fact that in whose favour the decision in the trial may go."15. As such, we are of the considered view that defendant requires to be granted one more opportunity to file his written statement and contest the suit on merits, as the defendant is attempting to raise a plea which may or may not be tenable. It is for the learned trial judge to take a call on this issue after recording evidence. As such, Point No.1 deserves to be answered partly in favour of appellant-defendant without expressing any opinion on merits of rival claims.RE. POINT NO.2:16. Present application viz., I.A.No.2/2020 is filed by appellant-defendant under Order 41 Rule 27(a) of CPC for production of additional evidence.17. Since judgment and decree passed by trial court is now being set aside and matter is being remitted back to the trial court conditionally, such documents can be produced by the defendant before the trial court as well at the time of tendering his evidence. As such, I.A.No.2/2020 stands disposed of accordingly and subject to this observation.RE. POINT NO.3:18. Since plaintiff is a Government of India Enterprise and has parted public money to the defendant on the strength of claim made by the defendant and suit having been decreed holding that by virtue of undertaking dated 20.04.2018 at Exhibit-P5 whereunder defendant has undertaken to repay the said amount to the plaintiff in the event of there being any rival claim and according to plaintiff, legal heirs of Smt.Lakshmamma having raised claim over the property in question, it would be apt and appropriate to direct the defendant to pay the amount paid by respondent- plaintiff by depositing said amount before the trial court so that successful party would be entitled to receive the amount. Since amount which has been paid by the plaintiff and received by defendant is quite substantial, viz., Rs.81,43,500/-, some breathing time deserves to be granted to the defendant. As such, we grant time to de
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posit 50% of the amount on or before 04.11.2020 and balance 50% within four weeks thereafter.For the reasons aforestated, we proceed to pass the following:-ORDER(i) Appeal is allowed in part.(ii) Judgment and decree dated 17.03.2020 passed by Senior Civil Judge & JMFC, Devanahalli, in O.S.No.517/2018 is set aside and matter is remitted back to the jurisdictional Court, viz., Court of Senior Civil Judge & JMFC, Devanahalli, for being adjudicated on merits and in accordance with law.(iii) Learned trial judge shall consider the applications i.e., applications which have been filed by defendant for permission to file the written statement, recall of PW1 and to tender evidence on behalf of defendant favourably on payment of costs, as may be fixed by the learned Trial judge as he deems fit.(iv) Trial court shall make endeavour to dispose of the suit expeditiously at any rate within an outer limit of six (6) months from the next date of hearing which we fix it as 04.11.2020. On the said date, parties shall appear before the trial court as per extant Standard Operating Procedure (SOP) without waiting for any further notice from court.(v) Registry is directed to refund the court fee paid on appeal memorandum to the appellant on an affidavit being filed by the appellant-defendant that amount as ordered under this judgment has been deposited before the trial court. In the event of amount not deposited as undertaken, this appeal shall stand dismissed and decree would stand revived as such and registry need not issue refund cheque.In view of appeal having been allowed, I.A.No.1/2020 filed for stay does not survive for consideration and it stands rejected.