The High Court
Case Details
- 1 - NC: 2025:KHC:1246 RFA No.1642/2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL REGULAR FIRST APPEAL NO.1642/2010 (MON) Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA BETWEEN: 1. K. BHAVIKATTI S/O V.S. BHAVIKATTI AGED ABOUT 35 YEARS OCC:PROPRIETOR M/S. BHAVIKATTI MAIN ROAD GULBARGA- 585 101. 2. PROPRIETOR M/S. BHAVIKATTI MAIN ROAD GULBARGA- 585101. (BY SRI. A.K. DHIRAJ KUMAR AND SRI. K. CHANDRAPPA, ADV.,) AND: M/S. YES ASSOCIATES PROPRIETARY CONCERN HAVING ITS REGISTERED OFFICE AT NO.167/C, ANUGRAHA III MAIN ROAD, 7TH CROSS CHAMARAJPET,BANGALORE- 18 REP. BY ITS PROPRIETRIX SMT. LALITHA SHIVAMURTHY. …APPELLANTS …RESPONDENT (SERVICE OF NOTICE TO R1 IS H/S V/O/DTD:13.12.2016) - - - THIS RFA IS FILED U/S 96 OF CPC., PRAYING TO CALL FOR RECORDS IN O.S.NO.7645/2004 FROM THE FILE OF THE LEARNED XIV ADDL. CITY CIVIL JUDGE AT BANGALORE (CCH - 2 - NC: 2025:KHC:1246 RFA No.1642/2010 NO.28) AND TO ALLOW THIS APPEAL, THEREBY SETTING ASIDE JUDGMENT AND DECREE DATED 30.07.2010 PASSED IN O.S.NO.7645/2004 BY THE LEARNED XIV ADDL. CITY CIVIL JUDGE AT BANGALORE AND TO DISMISS THE SUIT IN THE INTEREST OF JUSTICE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT The defendant has filed this regular first appeal challenging the judgment and decree dated 30.07.2010 passed in O.S.No.7645/2004 by the Court of XIV Addl. City Civil Judge, Bengaluru (CCH-28) wherein the suit of the plaintiff was decreed by directing the defendant to pay Rs.35,000/- along with interest at the rate of 6% p.a. from 05.02.2002 till complete realization of the amount and the defendant was granted three months time to pay the decreetal amount. 2. The parties to the proceeding are referred to as per their rankings before the Trial Court. 3. It is the case of the plaintiff that it is the proprietary concern represented by Smt.Lalitha Shivamurthy - 3 - NC: 2025:KHC:1246 RFA No.1642/2010 and carrying on the business of printing, publishing and selling the text books and guides for various schools all over the States of Tamil Nadu and Karnataka. It is averred that the defendant No.1 who is the proprietor of M/s.Bhavikatti, Main Road, Gulbarga placed an order for the supply of goods i.e. various text books with the plaintiff vide Invoice No.828 dated 05.02.2002 and pursuant to the said invoice, the plaintiff has supplied the books referred in the invoice for a sum of Rs.36,350/-. It is further averred that the defendant No.1 received the consignment of the goods and has issued Cheque for a sum of Rs.35,000/- to be drawn on Karnataka Bank, Gulbarga in favour of the plaintiff towards the payment of amount due under the invoice dated 05.02.2002. It is also averred that the plaintiff has presented the said Cheque for encashment. The said Cheque was returned to the plaintiff with an endorsement 'insufficient funds'. On enquiry, the defendant informed to present the said Cheque after 15 days and accordingly, the plaintiff has presented the said Cheque. However, the - 4 - NC: 2025:KHC:1246 RFA No.1642/2010 Cheque was again returned with endorsement 'insufficient funds'. 4. It is contended that the plaintiff issued legal notice dated 27.05.2002 demanding payment of the Cheque amount and the said notice issued to the defendant returned unserved as he evaded the notice. The plaintiff initiated criminal proceedings against the defendant No.1 for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). However, for non-service of notice, the said complaint was dismissed. It is further contended that the defendants are jointly and severally liable to pay Rs.35,000/- being the Cheque amount with interest from 05.02.2002 till realization of the amount. Hence, sought to quash the judgment and decree for a sum of Rs.51,800/- with interest at 18% p.a. from the date of Cheque till the date of filing of the suit till realization. 5. The defendant No.2 filed written statement contending that defendant No.1 by name V.S.Bhavikatti died - 5 - NC: 2025:KHC:1246 RFA No.1642/2010 on 13.01.1992 at Gulbarga. Since then, he is in no way concerned with the proprietorship of defendant No.2 which is exclusively run by B.Karthikeya. Hence, the suit filed by the plaintiff against a dead person is not maintainable in law and sought for dismissal of the suit. The defendant No.2 has denied other averments made in the plaint and sought for dismissal of the suit. The Trial Court framed the issues and recorded the evidence. One S.Vijay Kumar has been examined as PW-1 on behalf of the plaintiff and got marked Exs.P1 to P9. The defendant did not adduce any evidence. The Trial Court, on appreciation of the evidence on record, decreed the suit partly by directing the defendant to pay a sum of Rs.35,000/- along with interest at the rate of 6% p.a. from 05.02.2002 till its complete realization and the defendant was granted 3 months' time to make the payment. Being aggrieved, the defendants are in appeal. 6. Sri.A.K.Dhiraj Kumar, learned counsel appearing for the appellant submits that the Trial Court has committed grave error in passing the impugned judgment and decree. It is submitted that the plaintiff has filed a suit initially - 6 - NC: 2025:KHC:1246 RFA No.1642/2010 against V.S.Bhavikatti in the year 2004 and on the date of filing the suit, the said V.S.Bhavikatti was not alive as he died on 13.01.1992. It is further submitted that the said death of V.S.Bhavikatti was brought on record by way of written statement filed by the present appellant as a proprietor of defendant No.2 and based on such written statement, the plaintiff has filed an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, to substitute the name of V.S.Bhavikatti with K Bhavikatti. The Trial Court allowed the said application without providing any opportunity to the defendant No.2 as the counsel for defendant No.2 had filed memo of retirement on 04.08.2009 which came to be allowed on the said day. It is contended that the Trial Court has committed grave error in accepting the memo of retirement as the said memo of retirement was filed without service of notice on defendant No.2. Hence, the entire procedure followed by the Trial Court is erroneous which has resulted in defendant No.2 remaining unattending the proceedings. It is submitted that when the Trial Court has - 7 - NC: 2025:KHC:1246 RFA No.1642/2010 substituted the defendant No.2 K.Bhavikatti in place of V.S.Bhavikatti, the Court would have issued summons to him and such procedure followed by the Trial Court is contrary to the settled principles of law and on this ground alone, the impugned judgment and decree requires to be set aside. He submits that substitution of K.Bhavikatti as defendant No.1 in place of V.S.Bhavikatti amounts to the addition of the parties to the proceedings. It is further submitted that the entire pleadings, documents and exhibits indicate that the transaction is purely between V.S.Bhavikatti and the plaintiff and neither the defendant No.2 nor his firm has anything to do with the transaction. Hence, he seeks to allow the appeal. 7. Though notice is served on the respondent, they remained absent and are placed exparte. 8. I have heard the arguments of the learned counsel for the appellant and meticulously perused the material available on record including the Trial Court records. The point that arises for consideration in this appeal - 8 - NC: 2025:KHC:1246 RFA No.1642/2010 is "Whether the impugned judgment and decree of the Trial Court call for any interference in the present appeal?" 9. The instituted facts are that the plaintiff has filed a suit in O.S.No.7645/2004 seeking prayer to pass the judgment and decree for a sum of Rs.51,800/- along with interest at 18% p.a. from the date of initiation of the suit till its realisation. The said suit came to be filed on 11.10.2004 and admittedly on the said date, defendant No.1 V.S.Bhavikatti was not alive. The cause title of the plaint indicates that the defendant No.1 is the proprietor of M/s.Bhavikatti, Main Road, Gulbarga. However, it is not mentioned in the plaint as to who is representing the proprietary concern. Be that as it may, B. Karthikeya as proprietor of the defendant No.2 has filed written statement specifically contenting that on 13.01.1992 V.S.Bhavikatti has died and he has no concern with the proprietorship of defendant No.2. After filing of the said written statement, the plaintiff has filed an application under Order VI Rule 17 read with Section 151 of the CPC on 17.04.2010 seeking to substitute K Bhavikatti in place of V.S.Bhavikatti as - 9 - NC: 2025:KHC:1246 RFA No.1642/2010 defendant No.1. The said application was allowed by the Trial Court on the same date. The records also indicate that the counsel representing the defendant No.2 i.e. K.Bhavikatti, the proprietor and the defendant No.2 has filed memo of retirement on 04.08.2009 and the same came to be allowed. Though the notice of retirement of counsel is available on record, there is no evidence or material to indicate that the memo of retirement is served on the defendant No.2-appellant herein. Hence, the Trial Court has failed to appreciate the memo of retirement filed by the learned counsel for the defendant No.2 is without the service of retirement notice on defendant No.2. The Trial Court has also committed grave error in adopting the procedure unknown to law by substituting the name of defendant No.1 from V.S.Bhavikatti to K.Bhavikatti without providing any opportunity to K.Bhavikatti that to offer the counsel for defendant No.2 retire from the case. The Trial Court ought to have issued notice on the application filed by the plaintiff under Order VI Rule 17 read with Section 151 of the CPC as the learned counsel for the defendant No.2 has filed memo - 10 - NC: 2025:KHC:1246 RFA No.1642/2010 of retirement prior to the said date. The Trial Court has committed grave error in substituting the parties to the proceedings without following proper procedure. Learned counsel for the appellant is right in contending that substituting K.Bhavikatti as defendant No.1 in place of V.S.Bhavikatti is nothing but adding a party to the proceedings without providing any opportunity to the said party in the suit. The learned counsel for the appellant is also right in pointing out that the entire pleading and the evidence on record indicate that the transaction is between V.S.Bhavikatti and the plaintiff. Be that as it may, the Trial Court has proceeded to pass the judgment and decree without providing sufficient opportunity to the defendant No.2 / appellant herein. Hence, interest of justice would be met if the impugned judgment and decree as well as the order on I.A.3 are set aside and the matter is remitted back to the Trial Court with the direction to provide an opportunity to the defendant to adduce evidence. 10. In view of the foregoing reasons, I proceed to pass the following: - 11 - NC: 2025:KHC:1246 RFA No.1642/2010
Decision
ORDER (1) The impugned judgment and decree of the Trial Court dated 30.07.2010 passed in O.S.No.7645/2004 and the order dated 17.04.2010 passed on I.A.No.3 filed under Order VI Rule 17 of the CPC by the Court of XIV Addl. City Civil Judge, Bengaluru (CCH-28) are set aside. (2) The matter is remitted to the Trial Court with a direction to provide sufficient opportunity to the defendants to adduce evidence. (3) The Trial Court is directed to re-consider the application in I.A.3 filed by the plaintiff under Order VI Rule 17 of the CPC afresh. (4) The appellant is directed to file objections to the said application within 3 weeks from his appearance. The appellant / defendant shall appear before the Trial Court without any notice on 10.02.2025. The Trial Court shall issue notice to the respondent-plaintiff and proceed as directed. - 12 - NC: 2025:KHC:1246 RFA No.1642/2010 (5) The Trial Court is directed to dispose of the suit on merits in accordance with law after providing an opportunity to the parties to the suit. (6) Registry is directed to transmit the records to the Trial Court forthwith. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 47