Siddalingayya vs Gurulingappa .

Siddalingayya ….Appellant(s)

VERSUS

Gurulingappa & Ors. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by the plaintiff against the

final judgment and order dated 24.06.2005 passed

by the High Court of Karnataka at Bangalore in RSA

No.220 of 2003 whereby the High Court allowed the

second appeal filed by the respondents herein and

while setting aside the judgment/decree of the two

Courts below remanded the case to the Trial Court Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2017.09.09 for deciding the civil suit afresh on merits after 13:31:39 IST Reason: 1 affording an opportunity to the

respondents(defendants) to file written statement.

2) The Controversy involved in the appeal lies in a

narrow compass. Few facts set out hereinbelow

would make the controversy clear.

3) The appellant is the plaintiff whereas the

respondents are the defendants in the suit out of

which this appeal arises.

4) The appellant filed a civil suit being O.S. 286

of 1993 against the respondents (defendants) in the

Court of Munsiff - Indi (Bijapur) for recovery of

Rs.45,000/- by way of damages. According to the

appellant, the respondents illegally demolished his

construction and thereby caused monetary loss and

injury to him and hence the suit to recover the

monetary loss suffered by him.

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5) The respondents entered appearance but

failed to file their written statement despite time

granted by the Court.

6) The Trial Court, however, declined to grant

further time to file written statement to the

respondents though asked for and accordingly

proceeded to record evidence of the appellant

(plaintiff) and by judgment/decree dated

24.02.1997, decreed the suit of the

appellant(plaintiff) for Rs.45,000/- against the

respondents(defendants).

7) The defendants, felt aggrieved, filed first appeal

before the Principal Civil Judge at Bijapur being

R.A. No.103 of 1997. By judgment dated

04.12.2002, the Appellate Court dismissed the

appeal and affirmed the judgment/decree of the

Trial Court. Felt aggrieved, the defendants filed

3 second appeal being R.S.A. No.220 of 2003 before

the High Court.

8) By impugned judgment, the High Court

allowed the second appeal and while setting aside

the judgment/decree of the two Courts below

remanded the case to the Trial Court for deciding

the civil suit afresh on merits after affording an

opportunity to the respondents (defendants) to file

written statement.

9) It was held that the Trial Court did not grant

sufficient opportunity to the respondents to file

written statement, due to which they had to suffer

the decree without any contest causing prejudice in

defending the suit. The High Court, however,

imposed a cost of Rs.11,000/- on the defendants to

be paid to the plaintiff as a pre-condition for filing

the written statement within the extended time

granted.

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10) It is against this order of the High Court, the

plaintiff has felt aggrieved and filed this appeal by

way of special leave before this Court.

11) Mr. Rajesh Mahale, learned counsel for the

appellant (plaintiff). None appeared for the

respondents though served.

12) Having heard the learned counsel for the

appellant and on perusal of the record of the case,

we are not inclined to interfere in the remand order

of the High Court impugned in this appeal.

13) This case reminds us of the apt observations of

a great Judge of this Court (Vivian Bose, J.). His

Lordship, speaking for the Bench, in his inimitable

style of writing said in Sangram Singh vs. Election

Tribunal Kotah & Anr. (AIR 1955 SC 425) as

under:

“A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and

5 penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

14) Keeping the aforementioned observations in

mind and examining the facts of the case at hand,

we are of the considered opinion that the High

Court made no mistake in allowing the respondents’

appeal and remanding the suit to the Trial Court for

fresh trial on merits after affording an opportunity

to the respondents (defendants) to file their written

6 statement to enable them to contest the suit on

merits.

15) It is true that the time was granted to the

defendants to file written statement initially before

closing their right to file written statement, yet in

our view, the Trial Court instead of closing their

right to file written statement should have granted

some time to the defendants subject to payment of

reasonable amount of cost to the plaintiff to

compensate the inconvenience caused to the

plaintiff. The High Court was, therefore, right in

imposing a cost of Rs.11,250/- on the defendants to

be paid to the plaintiff as a pre-condition to file the

written statement within the extended time granted

by the High Court.

16) In our view, here comes the application of

observations of Vivian Bose J. when His Lordship

said "Too technical a construction of a section that

7 leaves no room for reasonable elasticity of

interpretation should therefore be guarded against

(provided always that justice is done to both sides)

lest the very means designed for the furtherance of

justice be used to frustrate it. Our laws of procedure

are grounded on a principle of natural justice, which

requires that men should not be condemned unheard,

that decision should not be reached behind their

back, that proceedings that affect their lives and

property should not continue in their absence and

that they should not be precluded from participating

in them."

17) Having observed this, His Lordship cautioned

"of course there must be exceptions too and where

they are clearly defined they must be given effect to”

and finally His Lordship concluded observing "But

taken by and large, and subject to that proviso, our

laws of procedure should be construed, wherever

8 that is reasonably possible, in the light of that

principle."

18) The approach of the High Court, which

resulted in remand of the case to the Trial Court for

deciding the suit on merits after affording full

opportunity to the defendants to contest the case

and, at the same time, making it obligatory to pay

cost of Rs.11,250/- to the plaintiff was, in our view,

in tune with the aforementioned observations and

did substantial justice to both the parties.

19) In view of foregoing discussion, we concur with

the reasoning and the conclusion arrived at by the

High Court and find no merit in the appeal. It is

accordingly dismissed.

20) We, however, find that none appeared for the

respondents (defendants) in this appeal though

served. The Trial Court will now take up the suit to

its file and will issue notice of suit proceedings to

9 the respondents/defendants for their appearance in

the suit.

21) On their entering appearance pursuant to

service of fresh notice, the Trial Court will grant

them some time to deposit the cost amount fixed by

the High Court and also to file their written

statement.

22) Failure to deposit the cost within the time fixed

so also the written statement would result in revival

of the decree passed by the Trial Court against the

defendants.

23) In the event of defendants depositing the cost

and filing written statement as directed, the Trial

Court will frame issues and allow the parties to

adduce their evidence and cross-examine the

witnesses, who were already examined and will also

allow them to adduce additional evidence both oral

and documentary.

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24) Let the trial in the suit be over within six

months from the date of appearance of the parties.

The record of the case be sent back forthwith to the

Trial Court, if requisitioned here.

25) The appellant (plaintiff) to appear before the

Trial Court on 3.10.2017 with the copy of this order

to enable the Trial Court to proceed in the trial of

the suit, as directed above.

………...................................J. [R.K. AGRAWAL]

…...

……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

September 05, 2017

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