IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 1 ST DAY OF JULY 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM M.S.A. NO. 122 OF 2010 BETWEEN: SRI V.DHANANJAYA KUMAR, S/O Dr.P.S ALVA alias Dr.P.A.ALVA AGED ABOUT 52 YEARS, MEMBER OF PARLIAMENT R/O “DANYATA” BAJAI, MANGALORE - 575 004 .APPELLANT (BY SRI S.B.PAVIN, ADV.,) AND 1. MR.B.V.SEETHARAM, S/O LATE VENKATARAMANA, AGED ABOUT 52 YEARS, CHAIRMAN AND MANAGING DIRECTOR OF CHITRA PUBLICATIONS (P) LTD., R/O 400-C BAIKAMPADY INDUSTRIAL AREA, MANGALORE - 575 011, D.K 2. SRI B.S.SHIVAPRASAD, S/O LATE NARAYANA BHAT, AGED ABOUT 52 YEARS, EDITOR AND PUBLISHER OF ‘KARAVALI ALE’ R/O BAIKEMPADY INDUSTRIAL AREA, ‘1 MANGALORE - 575 011, D.K. 3. SMT.S.ROHINI, W/O B.V.SEETHARAM, AGED ABOUT 46 YEARS, CHITRA PUBLICATIONS (P) LTD R/O 400-C, BAIKAMPADY, INDUSTRIAL AREA, MANGALORE - 575 011 RESPONDENTS (BY SRI B.T.VENKATESH, ADV., FOR R1-R3) MSA FILED UNDER SECTION 43 RULE (u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23-07-2010 PASSED IN R.A.19/2007, ON THE FILE OF THE I ADDL. DISTRICT JUDGE, D.K., MANGALORE, ALLOWING THE APPEAL AND SETTthG ASIDE THE JUDGMENT AND DECREE DATED 13-08-2007, PASSED IN O.S.NO.14/2002 ON THE FILE OF THE FIRST ADDL. CIVIL JUDGE (SR.DN) AND CJM, MANGALORE, PARTLY DECREEING THE SUIT FOR DECLARATION, DAMAGES AND INJUNCTION. THIS APPEAL IS COMING ON FOR FURTHER ORDERS THIS DAY THIS COURT DELIVERED THE FOLLOWING: JUDGMENT Plaintiff’s appeal against judgment in R.A. No.19/2007 dated 23.7.2010, on the file of the I Additional District Judge, D.K., Mangalore, setting aside the judgment of the Trial Court and remanding the suit in O.S.No. 14/2002 for de nova consideration, / I 2. Heard learned counsel Sri. Pavin for appellant and learned counsel Sri.Venkatesh for respondents. Perused records in supplementation thereto. 3. The contextual facts are: a) The appellant filed a suit seeking a decree to declare the publication of article captured as c& and “Libel, slanders and defamatory nature. He also sought Rs.1,00,000/- damages for such defamatory publication. b) In response to the suit summons, the defendants entered contest through an advocate Mr. K. Ganesh Shenoy, who filed vakalath. However, the defendants sought time frequently, but ultimately filed no written statement either within the time stipulated under Order VIII Rule 1 of the Code of Civil Procedure nor they sought permission to file the written statement on any subsequent date. Thus the suit had to proceed exparte. 4 c) At the stage of the ex-parte proceedings, the appellant-plaintiff filed an application under SectIon 24 of the Code of Civil Procedure before the District Judge seeking withdrawal of the case from the file of the Principal Civil Judge (Sr.Dn), Mangalore, to be assigned to any other Court of the similar jurisdiction. The learned District Judge accepted the grounds in the petition and withdrew O.S.No.14/2002. from the file of the Principal Civil, Judge, Sr.Dn, Mangaiore, and assigned It to the First AddI. Civil Judge (Sr.Dn), Mangalore. d) In compliance to the order of transfer, the transferee Court proceeded to hear the suit. The respondents/defendants being aggrieved by such transfer approached this Court In C.R.P.No.2497/2002 to retain the suit on the file of the Principal Clvii Judge (Sr.Dn), Mangaiore. The revision was admitted and an order of stay was granted staying the operation of the transfer order. e) The defendants appeared before the transferee Court and sought time to produce the order of stay, which 5 was granted by the Trial Court. However, despite grant of several adjournments, the defendants did not produce copy of the order of stay before the transferee Court nor they file any written statement. Consequently, the transferee Court recorded non-filing of the written statement and proceeded with the enquiry in which the appellants/plaintiffs tendered evidence. The defendants did not take part in the enquiry resulting in exparte proceedings. Ultimately, the suit was decreed on 13.8.2007. f) Assailing the said judgment and decree in O.S.No.14/2002, the defendants preferred R.A.No.19/2007 contending that they were not given any opportunity in the proceedings before the 1st AddI. Civil Judge(Sr.Dn), Mangalore and secondly contending transferee Court had no jurisdiction to try the suit, as the order of transfer passed by the District Judge was set aside in C.R.P. No.2497/2002. g) The learned 1st AddI. Civil Judge(Sr.Dn), Mangalore accepted the ground urged by the appellant and by the impugned judgment and decree allowed the appeal in R.A. ‘I 6 No. 19/2007 and remanded the suit back to the Trial Court to give opportunity to the defendants to file written statement. h) The plaintiff is aggrieved by the said order of the Appellate Court has assailed it on more than one ground in this appeal. 4. Learned counsel Sri. Pavin, for the appellant would contend that the reason assigned by the learned Appellate Judge to set aside the judgment and decree of the Trial Court is wholly unsustainable. He drew my attention to the discussion in the impugned judgment, wherein the Appellate Judge has opined that the 1st AddI. Civil Judge, Sr.Dn, Mangalore, did not have a jurisdiction to try the suit, as this Court by the order in C.R.P.2497/02 set aside the transfer order passed by the District Judge assigning the case to him. 5. He would further submit that the learned Appellate Judge has failed to notice that the defendants were guilty of laches and had been procrastinating the proceedings •\\ I 7 before the Trial Court from 2002 till 2007, thereby showing their only intention was to harass the appellant. 6. Sri.Pavin, learned counsel would also refer to the order sheet of the Trial Court which shows that the respondents/defendants had appeared before the transferee Court in O.S.No.14/2002 on 22.2.2002 and had sought time to fUe written statement, which they did not do. The recordings in the order sheet would show that several adjournments were obtained by the respondents/defendants, but they did not file the written statement and in the meantime, at the request of the plaintiff, the suit was withdrawn from the file of the Principal Civil Judge, Sr.Dn, Mangalore and assigned to the Court of the 1st Addl. Civil Judge, Sr.Dn, Mangalore, on 27.5.2002. The transferee Court took the case on Board on 1.6.2002 and even thereafter the defendants sought time to file written statement through their counsel, but did not file the written statement before the transferee Court also. He would further draw my attention to the fact that before the transferee Court the defendants had sought time to produce 8 the order of stay passed in C.R.P.No.2497/02 and continued to seek adjournment till 5.12.2005. Sri. K.Ganesh Shenoy, an advocate representing the defendants continued to represent them, but did not file written statement. Ultimately, on 5.1.2006 he filed a memo seeking retirement which the transferee Court allowed on 16.1.2006. He would submit that this fact would show that the respondents were duly represented before the transferee Court. They neither filed written statement nor produced the order of stay said to have been granted in C.R.P.No.2497/2002 by this Court. Ultimately, the transferee Court allowed the plaintiff to lead evidence only in the year 2007. In the year 2007 the plaintiff tendered evidence which remained unrebutted establishing the ground in the suit for a decree to declare the publication made by the respondents as defamatory. The plaintiff had substantiated through the evidence the defamatory nature of the article and recitals. The Trial Court decreed the suit. 7. In negation of these grounds, the learned counsel for respondents/defendants would submit that the plaintiff 9 is guilty of laches and not the defendants. The plaintiff was never diligent in prosecuting the suit before the Principal Civil Judge(Sr.Dn), Mangalore. He sought transfer of the case with malafide intention which order the defendants questioned in this Court in C.R.P.No.2497/2002. He submits that this Court had stayed the order of transfer consequent to which, the suit should have been tried only by the Principal Civil Judge, Sr.Dn, Mangalore. He submits that the transferee Court i.e. 1st Addl. Civil Judge had no jurisdiction, as ultimately the revision was allowed and transfer order was set aside. 8. As far as the proceedings in the transferee Court is concerned, he would submit though the defendants had filed C.R.P.No.2497/2002, they were not aware of the result of the said revision due to communication gap between them and their lawyer. He submits they had no knowledge that this Court had set aside the order of transfer and thus they continued to appear before the transferee Court. He submits that the order of stay in C.R.P. No.2497/2002 was received late by them. However, they produced the same 10 before the transferee Court by which time, the revision itself was allowed. He submits in the fact situation the defendants could not file the written statement and rightly the Appellate Judge found favour for such ground and justifiably set aside the judgment and decree of the Trial Court which is admittedly an ex-parte decree. 9. The contentions of both sides have received my consideration. 10. It is not in dispute that in response to the suit summons in O.S.No. 14/2002, the respondents/defendants entered contest through K.Ganesh Shenoy, advocate who continued to represent them. It is also not in dispute that plaintiff himself had filed petition under Section 24 of the Code of Civil Procedure for withdrawal of the case from the file of the Principal Civil Judge, Sr.Dn, Mangalore, to be assigned to any other Court. It is not in dispute that the learned District Judge has allowed the petition in Misc. Case No.13/2002 filed by the plaintiff. It is also not in dispute that the respondents/defendants participated in the Ii miscellaneous proceeding resisting transfer of the case. It is also not In dispute that the order of transfer was communicated to the Court on 27.5.2002 and the case was transferred to the file of the 1st Addi. Civil Judge(Sr.Dn), Mangalore on 1.6.2002. Since then the proceedings are conducted before the 1st AddI. Civil Judge, Sr.Dn, Mangaiore, in which the defendants continued to be represented by Sri. K.Ganesh Shenoy, advocate. The order sheet of the suit will reveal that Sri. K.Ganesh Shenoy has been seeking time to file written statement on behalf of the defendants on the ground that the order of transfer was questioned by the defendants before the High Court In C.R.P.No.2497/2002. It Is also seen from the proceeding before the Trial Court Sri. K.Ganesh Shenoy sought permission to retire through his memo and the Trial Court permitted him to retire on 16.1.2006. Being satisfied that he had duly intimated, the defendants were seeking to retire. Therefore the defendants were duly represented before the transferee Court tiii 16.1.2006 and had not filed written statement till then. 12 11. Thereafter, the case was posted for issues. As the defendants had not filed the written statement, the Trial Court proceeded to record evidence of the plaintiff and ultimately decreed the suit by the impugned judgment. 12. It is also not in dispute that though the defendants claim they had obtained the order of stay of the transfer order in C.R.P. 2497/2002, they did not report it or produce any copy of the stay before the transferee Court. Therefore, as on the date the evidence was recorded and also as on the date of the judgment was rendered by the Court, there was no intimation to the Trial Court either of the stay or of any order passed in C.R.P.No.2497/2002. 13. In this fact situation, the question needing discussion is as to whether the judgment and decree of the Trial Court is liable to be set aside only on the ground that it had no jurisdiction, in view of the transfer order having been set aside by this Court as held by the learned Appellate Judge. 13 14. The learned Appellate Judge has discussed this aspect and recorded the reasons in the impugned order. The discussion and the reasons of the learned Appellate Judge to set aside Trial Court judgment could be found in paragraphs -19 and 26 which are extracted below: 19. The learned counsel for the appellant has not argued the appeal on merits of the case, since before the trial Court he had not filed the written statement and not led any evidence and not participated in the proceedings. Therefore, the counsel for the appellant did not address the arguments on the merits of the case and the learned counsel for the appellant t confines his argument only to the two aspects Le., one regarding the court of I AddI. Civil Judge (Sr. Dn), Mangalore did not have the jurisdiction and the trial Court has not issued the Court notice after the retirement of the counsel. 26. After passing the judgment and decree by the Court of the I AddI. Civil Judge (Sr. Dn) Mangalore, and when the result of the suit went against the defendants, they have preferred the above appeal and in the said appeal, it is contended the judgment and decree passed by the I AddI. Civil Judge, Mangalore is without jurisdiction by producing the certified copy of the order of the Hon ‘ble High Court in C.R.P.No.2497/2002. When the above said 14 order passed by the Hon’ble High Court of Karnataka is brought to the knowledge of this appellate Court that the order of transfer made in Misc. Case No.13/2002 is set aside and directed the trial Court to proceed in accordance with law and therefore 1 this Court is of the opinion that the judgment and decree passed by the Court of the I AddI. Civil Judge (Sr. Dn), Mangalore, is without jurisdiction, since it is the bounden duty of the parties to the litigation and of this appellate Court to obey and to honour the order passed by the Hon’ble High Court of Karnataka. Therefore, this court is of the opinion that the judgment and decree passed by the Court of the I Add!. Civil Judge (Sr. Dn) Mangalore is without jurisdiction and accordingly, it is liable to be set aside, since the Hon ‘ble High Court of Karnataka were pleased to set aside transfer of suit and directed the trial court to proceed in accordance with law by passing the order on 25.8.2005. Therefore, the order of the Hon’ble High Court of Karnataka gets retro active from the date of the order of the Hon’ble High Court. Therefore, when the order of the Hon ‘ble High Court of Karnataka is brought to the knowledge of this appellate Court about the setting aside the transfer of O.S.No.14/2002 and further directed the trail court to dispose of the matter in accordance with law. Therefore, in obeying and honouring the order of the High Court of Karnataka in C.R.P.No.2497/2002, the case requires remand to the Court of the PrI. 15 Civil Judge (Sr.Dn), Mangalore, for disposal in accordance with law. But, for this waste of time, by not bringing to the knowledge of the Court of the I Addl. Civil Judge (Sr. Dn), Mangalore and allowed to proceed further, the entire responsibility is put on the appellants/defendants. Therefore, this Court feels to impose costs on the appellants/defendants. Therefore, the judgment and decree passed by the Court of the I AddI. Civil Judge (Sr. Dn), Mangalore, is liable to be set aside and the matter requires remand to the Court of PrI. Civil Judge (Sr.Dn), Mangalore for consideration in accordance with law as directed by the Hon’ble High Court of Karnataka and cost is imposed on the appellants/defendants of a sum of Rs. 3,000/-. Since the matter is remanded to the Court of the Prl. Civil Judge (Sr. Dn), Mangalore, no opinion on merits of the case is expressed by this Court.” From the extracted portion of the impugned judgment, it is evident that the learned Appellate Judge has recorded that the defendants did not urge any ground agarnst the impugned judgment and decree of the Trial Court dated 13.8.2007 in O.S.No.14/2002 except questioning jurisdiction. The Appellate Judge has also recorded that the defendants questioned only the jurisdiction of the 1 st AddI. 16 Civil Judge, Sr.Dn, Mangalore, to decide the case. Therefore, it was incumbent on the learned Appellate Judge to decide the question of jurisdiction rather than referring to the conduct of the parties. Ultimately, the learned Appellate Judge seems to be of the opinion that the order of transfer having been set aside by the High Court, the 1st Addl. Civil Judge, Sr.Dn, Mangalore, did not have jurisdiction to try the suit. Undoubtedly, the learned Appellate Judge has ignored the fact that the Court of Principal Civil Judge, Sr.Dn, Mangalore, in which Court O.S.No.14/2002 was filed and the transferee Court vis-a vis 1st AddI. Civil Judge, Sr.Dn, Mangalore, are having the same territorial, pecuniary and subject jurisdiction. The Principal Civil Judge, Sr.Dn, Mangalore, is not superior to the Court of 1st Addl. Civil Judge, Sr.Dn, Mangalore nor the Court of 1st AddI. Civil Judge, Mangalore lacked jurisdiction to try the suit to grant a decree as sought for by the plaintiff. Therefore, the Court of Civil Judge, Sr.Dn, Mangalore, had pecuniary and territorial jurisdiction to try the suit. Merely because the order of transfer passed by the 17 District Judge was set aside by this Court, the Court at the first instance i.e. 1st AddI. Civil Judge, Sr.Dn, was not ousted of the jurisdiction conferred on it by law. 15. Besides, from the factual matrix, it is evident that the defendants who had approached this Court against the order of transfer even though they had obtained the order passed by this Court on 26.8.2005 setting aside the transfer order and even after taking the certified copy on 11.1.2005 did not file it before the transferee Court to show that transfer order was set aside by this Court. In fact, they remained absent till 16.1.2006 on which date their counsel Sri.Ganesh Shenoy retired from appearing on their behalf. Therefore, the transferee Court had no notice of the transfer order having been set aside by this Court in C.R.P.No.2497/2002 and no fault could be found with the said Court. 16. It must be also noticed that the defendants had not filed written statement within the time stipulated under Order VIII Rule 1 of the Code of Civil Procedure and 18 consequently the Trial Court had to apply Rule 10 of Order VIII to decree the suit as prayed for. It is also material to note that in the appeal no ground was urged against the ex parte decree except questioning the jurisdiction of the transferee Court. Since the appeal was under Section 96 of the Code of Civil Procedure, the learned Appellate Judge was required to examine the ground in the appeal against the impugned judgment. The learned Appellate Judge has recorded clearly in the order that the defendants had not urged any ground against the impugned judgment and decree except the question of jurisdiction. Therefore, in the absence of any challenge as far as the judgment and decree is concerned, if the ground regarding lack of jurisdiction is rejected, then the appeal should have been dismissed. 17. The learned Appellate Judge has not considered the appeal filed under Section 96 of the Code of Civil Procedure as is required to be considered within the provisions of Rules 23, 23-A and 25 of Order XLI The learned Appellate Judge has straight away accepted the ground regarding lack of jurisdiction of transferee Court 19 and set aside the judgment and decree of the Trial Court which judgment is wholly unsustainable and is therefore liable to be set aside. 18. I have already discussed in paragraph supra that the transferee Court had similar jurisdiction like the Court of Principal Civil Judge on whose file the case was pending and in view of transfer, the transferee Court had territorial and pecuniary jurisdiction. Therefore, merely because the order of transfer was set aside, the judgment and decree rendered by the Trial Court would not call for interference. 19. In this view the appeal is allowed. The judgment and decree passed in R.A.No.19/2007, dated 23.7.2010 on the file of the I Addl. District Judge, D.K., Mangalore is set aside. The judgment and decree passed in O.S.No.14/2012, on the file of the 1st Add). Civil Judge, (Sr.Dn) and CJM, Mangalore is confirmed. ri Da/ JUDGE Vk/Msu