(This MSA is filed under Section 43 Rule 1(u) of CPC, against the judgment and decree dated 29.09.2012 passed in R.A.No. 11/2012 on the file of the Senior Civil Judge, Hukkeri, allowing the appeal filed against the judgment and decree dated 15.12.2011 passed in O.S.No.57/2009, on the file of the Civil Judge, Sankeshwar, decreeing the suit filed for partition.)
1. Being aggrieved by the Judgment and decree passed by the learned Senior Civil Judge, Hukkeri, in R.A.No. 11/2012 on 29.09.2012, allowing the regular appeal and thereby setting aside the Judgment and Decree passed in O.S.No.57/2009, dated 15.12.2011 and remanding the matter to the Trial Court for its fresh disposal in accordance with law, the appellant has filed this Miscellaneous Second Appeal.
2. In response to the notice, the respondent Nos.1 to 3 are being represented by their counsel. The respondent Nos.4 and 5 are served, but they have remained absent.
3. The lower court records were called for and the same are placed before us.
4. I have heard the learned counsels for both the sides. Perused the materials placed before me including the impugned Judgment and decree. In the light of the above, the following points arise for my consideration:
(i) Whether the finding of lower appellate court chat the Judgment and Decree passed by the Trial Court is not based on proper appreciation of evidence, is erroneous?
(ii) Whether the lower appellate court was not justified in remanding the matter ordering for fresh trial and also permitting the defendant Nos.3, 4 and 5 to file their written statement?
(iii) Whether the Judgment and Decree under appeal deserves for interference at the hands of this court?
5. The Appellant herein who was the plaintiff in the Trial Court had filed a suit in O.S.No.57/2009, against the respondents herein for the relief of Specific Performance of Contract, dated 25.10.2017. The contention of the plaintiff in the Trial Court was that, the defendant Nos.1 and 2 in the trial court who are the respondent Nos.4 and 5 herein, had agreed to sell suit schedule immovable property to him for a sum of Rs..3 lakhs and had executed a sale agreement in his favour on 25.10.2007 by receiving a part consideration amount of Rs.2,35,000/-. Thereafter, on 15.11.2007, the plaintiff had also paid another sum of Rs.20,000/- to the defendant Nos.1 and 2 keeping a balance of Rs.50,000/- only to be paid. The possession of the property was agreed to be given at the time of registration and it was also further agreed that the defendant Nos.1 and 2 shall execute the registered sale deed by receiving a balance sale consideration amount. The defendant Nos.1 and 2 postponed the receipt of balance sale consideration and execution of sale deed, despite the plaintiff offering the balance sale consideration to them.
6. According to the plaintiff, the defendant Nos. 3 and 4 who are respondent Nos.1 and 2 herein, are claiming that the defendant No.1 and 2 have executed a sale deed in their favour selling 1 acre 5 guntas out of land of suit schedule property for a valuable consideration in their favour on 05.05.2008.
7. Similarly, defendant No.5 who is the respondent No.3 herein also claimed that, the 1 acre of land out of suit schedule property was sold to him by the defendant Nos.1 and 2 for a sum of Rs.38,000/- on 05.05.2008 under a sale deed. Stating that those alleged sale deeds are not binding upon him and that he was always ready and willing to perform his part of contract. The plaintiff had filed the suit for specific performance of contract.
8. In response to the summons, the defendants appeared in the trial court through their counsel. However, it was only defendant No.1 and 2 who filed their written statements wherein they admitted the execution of sale agreement in favour of plaintiff and receiving a sum of Rs.2,30,000/- as part consideration. However, they did not admit the receipt of Rs.20,000/- from the plaintiff on 15.11.2007. The Defendant Nos.1 and 2 further contended that the defendants No.3 and 4 by playing fraud on them have created sale deed with respect to 1 acre 5 guntas out of suit schedule property. They have also stated that, they have not even sold any property to the defendant No.5, as such the alleged sale deed, said to have been standing in favour of defendant No.5 and dated 05.05.2008 is also a created document by playing fraud upon them. Defendant Nos.1 and 2 further stated that, they have not received any consideration amount from defendant Nos.3 to 5 and the entire suit schedule property continued to be in their possession only. Defendant Nos.1 and 2 consented for decreeing the suit.
9. On the basis of pleadings before it, the trial court framed the following 14 issues.
(i) Whether the plaintiff proves that the defendant No.1 and 2 has executed agreement of sale deed dated 25.10.2007 in his favour pertaining to the land Sy.No.21/1 measuring 2 acres 5 guntas situated at Kamatnur village?
(ii) Whether the plaintiff further proves that as per the agreement of sale deed the defendant No.1 and 2 have received Rs.2,30,000/- as earnest money and agreed to execute the sale deed within one year from the date of said agreement?
(iii) Whether the plaintiff further proves that the defendant No.1 and 2 have again taken Rs.20,000/- from the plaintiff on 25.10.2007 and executed the receipt to that effect?
(iv) Whether the plaintiff proves that he is ready and willing to perform the specific performance of the contract?
(v) Whether the plaintiff further proves that the defendant No.1 and 2 has sold the 1 acre 5 guntas out of above suit land to the defendant No.3 and 4 for Rs.43,000/- on 5.5.2008 illegally?
(vi) Whether the plaintiff further proves that the defendant No.1 and 2 has sold the 1 acre of land out of above suit land to the defendant No.5 for Rs.38,000/- dated 5.5.2008 illegally.?
(vii) Whether the plaintiff further proves that these two sale deeds executed by the defendant No.1 and 2 in favour of defendant No.3, 4 and 5 are not binding on the plaintiff?
(viii) Whether the plaintiff further proves that he is alternatively entitled for recovery of Rs.2,50,000/- from the defendant No.1 and 2 at the rate of 15% per annum from die date of execution of agreement of sale deed till its realization?
(ix) Whether the defendant No.1 and 2 proves that the defendant No.3 and 4 got executed the sale deed by playing fraud upon them to the extent of 1 acre 5 guntas?
(x) Whether the defendant No.1 and 2 further proves that the defendant No.5 got executed the sale deed dated 05.05.2008 to the extent of 1 acre by playing fraud upon them?
(xi) Whether the defendant No.1 and 2 proves that the sale deed executed by them in favour of defendant No.3 and 5 are nominal sale deed?
(xii) Whether the defendant No.1 and 2 proves that the sale deed executed on 05.05.2008 are null and void and bogus?
(xiii) Whether the plaintiff proves that he is entitled for the relief as sought for?
(xiv) What order or decree?
10. To prove his case, the plaintiff examined himself as PW-1 and examined 3 more witnesses from his side as PW-2 to PW-4 and got marked 18 documents as per the Ex P1 to PI8. Defendants did not lead their evidence. By answering Issue Nos.1 to 7 and 9-13 in affirmative and holding that Issue No.8 does not arise for consideration, the trial court decreed the suit of the plaintiff with costs and held that alleged sale deed dated 05.05.2008 standing in favour of defendants No.3, 4 and 5 are not binding on the plaintiff. It was further ordered that, defendant Nos.1 and 2 to execute registered sale deed with respect to suit schedule property in favour of the plaintiff within 2 months from the date of Judgment by receiving balance sale consideration of Rs.50,000/-.
11. Against the said Judgment and Decree, the present respondent Nos.1, 2 and 3 who are the defendant Nos.3, 4 and 5 preferred appeal in the lower appellate court in R.A.No. 11/2014. The said court vide its Judgment and Decree dated 29.09.2012, set-aside the judgment and decree dated 15.12.2011 in O.S.No.57/2009 and remanded back the matter to the Trial Court for its fresh disposal in accordance with law after giving an opportunity to the appellants for filing their written statement. It is the said Judgment and Decree, the appellant who was the plaintiff in the Trial Court, has challenged in this appeal. For convenience, the parties would be referred with their respective rankings in the trial court in the original suit.
12. Learned counsel for the appellant in his brief arguments submitted that the first appellate court ought not to have remanded the matter. It should have seen whether it by itself could have finally disposed off the matter. Remand is permissible only when it is very much necessary in the interest of justice. In his support, he also relied upon a Judgment of this court reported in ILR 2007 KAR 1127.
13. Leaned counsel for the respondent No.1 to 3 in his brief argument submitted that the decree is an outcome of glove in hands of the plaintiffs and defendant Nos.1 and 2. The Ex.P-1 and P-2 should not have been entertained by the trial court since they suffer with deficit stamp duty. As such instead of impounding that the trial court has committed an error in marking and admitting those two documents in toto, as such setting aside of the Judgment and Decree passed in the original suit and remanding the matter does not warrant any inference at the hands of this court. In his support, learned counsel relied upon three Judgments of this court reported in 2003 (3) KCCR 2426, ILR 2006 KAR 3179 and ILR 2015 KAR 1984, which will be discussed herein afterwards.
14. The plaint averments that defendant No.1 and 2 agreed to sell the suit schedule property for a total consideration amount of Rs.3 lakhs and executed a sale agreement in favour of the plaintiff on 25.10.2007 by receiving a part consideration amount of Rs.2,30,000/- has been admitted by the defendants Nos.1 and 2 in their written statement. However, they have not admitted the plaint averments that, thereafter on 15.11.2007, the plaintiff gave them another sum of Rs.20,000/-. The plaintiff who got himself examined as PW-1 in his affidavit evidence reiterated the plaint averments and further got examined PW-2, PW-3 and PW-4 in his support. Among the 18 exhibits got marked by him from Ex.P1 to Ex.P18, the important documents are Ex.P-1 which is a agreement of sale deed and Ex.P-2 which is a receipt, through which documents', the plaintiff tried to prove the plaint averments regarding execution of the agreement and passing away of part of sale consideration to the defendant Nos.1 and 2. Ex.P-1 is titled as agreement of sale of agricultural land. Agreed sale consideration is shown at Rs.3 lakhs. The said agreement is written on stamp paper of Rs.100 X 2. Thus Rs.200/- is the stamp duty paid on the said agreement. Ex.P-2 is titled as a receipt for having received the money. The receipt after referring to the sale transaction in brief acknowledges the receipt of a sum of Rs.2,30,000/- plus Rs.20,000/-, thus in total Rs.2,50,000/- The said document also mentions in it that, on that day, the actual possession of the property has been delivered to the plaintiff/purchaser. In Ex.P-1 for an agreement of sale with the sale consideration of Rs.3 lakhs a stamp duty of only Rs.200/- is paid. As already observed that Ex.P-2 is shown to be receipt for having received substantial consideration towards sale, but, in the same document, it is also acknowledged the delivery of possession of the property to the purchaser/plaintiff. In H.P.Basavarajappa Vs. K. Vijayalakshmi and others, ILR 2006 KAR 3179, this court has held that, fiom a plain reading of Article 5(3)(I) what is discernable is that when possession of property is delivered without executing a conveyance, attracts stamp duty as a conveyance No.20 on the market value of the property. These Exs.P-1 and P-2 suffer from deficit stamp duty, as such they are undisputedly remained as documents with deficit stamp duty.
15. No doubt, defendant Nos.1 and 2 in the court below did not object for marking these two documents as exhibits. In a case Krishna Vs. Sanjeev, reported in 2003(3) KCCR 2426, this court has held that marking of a document is a ministerial act, whereas admitting a document in evidence is a judicial act. Before a document is lead in evidence, there should be a judicial determination of question whether it could be admitted in evidence or not. In other words, the court admitting a document must have applied its mind consciously to the question whether the document was admissible or not. In the same judgment it is further held that when the documents are tendered in evidence, the opposite party has to be alert and if he has any objection for the said document being received in evidence should raise the objection. If the objection relates to insufficiency of stamp duty on the said document, the court is under legal obligation to decide the question of sufficiency of stamp duty then and there itself. If the court holds that the document is insufficiently stamped, the statutory obligation is cast upon the court to impound the document and pass appropriate orders for collection of deficit stamp duty and penalty on said insufficiently stamped document.
16. In the instant case, admittedly defendant Nos.1 and 2 did not object for marking the said documents and also did not raise any objection regarding sufficiency of the stamp duty paid on those two documents. They did not even cross-examine PW-1. Neither in the deposition sheet nor in the order sheet of the relevant day of the trial court, it is mentioned whether the learned counsel for defendant Nos.3 to 5 was present on that day in the court. The fact remains that Exs.P-1 and P-2 were marked un-opposedly.
17. Section 35 of the Karnataka Stamp Act 1957 states that, where an instrument has been admitted in evidence such admission shall not except as provided in Section 58, to be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
18. Similar situation had arisen before this Court in Smt. Savithramma R.C Vs. M/s. Vijaya Bank and Another, reported in ILR 2015 KAR 1984, wherein finding of the Trial Court that, once the insufficiently stamped documents are marked without objection, then the defence cannot have any grievance was considered. After referring to the Judgment in Laxminarayanachar Vs. Narayan and Another, reported in 1969 (2) Mys.L.J 299 and K.Amarnath Vs. Smt. Puttamma, reported in 2000 (4) Kar.L.J. 55 and discussing the provisions under Section 33, 34, 35, 36, 37 and 41 of Karnataka Stamp Act 1957, this Court by then Hon'ble Lordship N.Kumar, Judge, was pleased to observe in para No.6 of the Judgment as below:
"6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is rendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence. If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35 of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped. It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the otherside, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not".
19. With the above observations, this court in the said case held that Trial Court had not discussed about the nature of documents in order to find out whether it was duly stamped. Only after the said exercise, the Trial Court could have come to the conclusion whether the stamp duty paid on the instrument was sufficient? In the instant case, as already observed, the documents are insufficiently stamped, however, the Trial Court did not consider the said aspect that the duty was cast upon it to examine regarding the sufficiency of the stamp duty.
20. The Trial Court merely by permitting the plaintiff for marking the said documents as Exhibits PI and P2, took that by itself they stand admitted even in the evidence and the contents stand proved. It has to be observed that the said logic which can be found from a reading of the Trial Court's Judgment is also not correct. It is also observed by this Court in Krishna Vs. Sanjeev (supra) at paragraph No. 13, as below:
"The production of document, admitting the said document produced in evidence, marking of said document which is admitted in evidence and proof of such document have distinct connotation in the eye of law. At the time of admitting the document in evidence, it is open to the opposite party to raise objection regarding the admissibility of the document and if the objections are raised, the court is under an obligation to decide the said objection. It is after the said objection is decided by the Court and if it decides to receive the document in evidence, the said document is marked for the purpose of identification. Thereafter the proof of said document would arise. After the evidence is adduced at the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of said document and the Court will decide all these questions in the course of its judgment."
21. In the case on hand, the Trial Court appears to have proceeded to admit the Ex.P-1 and P-2 in evidence, merely because they were marked and without looking into the aspect of sufficiency of stamp duty it has also taken those documents as proved. As such there is no other way but to call the said act of the Trial Court as not as per the legal requirements, and the procedure followed by it is to be treated erroneous. The lower appellate court appropriately has recorded its finding on the said point which has resulted in setting aside the Judgment and Decree under appeal before it. As such, the finding of the lower appellate court on this limited point cannot be called erroneous.
22. After finding that the Trial Court had a duty to examine the question of sufficiency of stamp affixed to Ex.P-1 and P-2, the lower appellate court has set aside the Judgment and Decree under appeal and remanded the matter for its fresh disposal in accordance with law. According to the leaned counsel for the appellant the lower appellate court should not have remanded the matter. In his support, the learned counsel relied upon a decision of this court in Shanthaveerappa S/o. Adigerahalli Ramanna Vs. K.N.Janardhanachari S/o. late Sannamallachari, reported in ILR 2007 KAR 1127, where in His Lordship N. Kumar, Judge, at para No. 11 has observed as below:
"The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appellate Court itself. When the trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under Order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the Court should act under Rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh opportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the appellate Court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice."
23. In the instant case, the lower appellate court has rightly observed that the documents at Exs.P-1 and P-2 were not sufficiently stamped and that the trial court did not discharge its obligation cast under Section 33 of the Karnataka Stamp Act 1957. The said Judgment has nowhere observed that the party producing and relying upon the said documents had forfeited or waived his right to cure the defect, with respect to stamp, in accordance with law. At the same time, the lower appellate court also gave an opportunity to the appellants before it to file their written statement, as such it ordered for de-novo trial. However, keeping apart the finding of lower appellate court, permitting the appellants before it to file written statement in the matter, no fault can be found in its judgment in remanding the matter to the Trial Court.
24. While setting aside the Judgment and Decree of the Trial Court and remanding the matter ordering for de-novo trial, the lower appellate court has also permitted the appellants before it who are defendant Nos.3, 4 and 5 to file their written statement. Order VIII Rule 1 of the Code of Civil procedure 1908, mandates the defendant to file written statement within 30 days from the date of service of summons on him. For any delay in filing the written statement, the defendant is required to show the convincing reasons, Even in such cases also the written statement is required to be filed within 90 days from the date of service of summons. In the instant case, admittedly even though defendant Nos.3-5 were served with, suit summons and appeared in the court below through their counsel they did not choose to file written statement. Admittedly the trial court has given them sufficient time to file written statement. The same can be seen from a perusal of the order sheet maintained by the Trial Court in the suit. Defendant Nos.3, 4 and 5 were served and tendered their appearance through their counsel in the trial court on 09.04.2009. Recording of the evidence in the suit began only on 28.10.2011. As such for a period of more than 2 years, the defendant Nos.3, 4 and 5 did not choose to file written statement. The lower appellate court in its Judgment at several places has clearly observed that sufficient opportunity was given to the appellants before it (Defendant Nos.3, 4 and 5) for filing written statement and that even after a lapse of two years they did not come forward to file written statement as such there was no denial of natural justice. The lower appellate court has further observed at two more places in its Judgment, that even after appearing through their counsels, appellants/defendant Nos.3, 4 and 5 before it, did not file their written statement though sufficient opportunity was given to them, very importantly in its Judgment at page 17, para No.25, the lower appellate court has observed as below:
"No doubt in spite of sufficient opportunity, the appellants have not contested the suit before the trial court.
Even before this court they have not come with proper explanation regarding their non-appearance before trial court. However, looking to the facts and circumstance of the case and the evidence of the plaintiff and their witnesses and also documents marked at Ex.P-1 and Ex.P-2, Ex.P-17 and 18. It is better for the parties to go for trial once again on merits and at this stage appellant cannot contests fact that Ex.P-1 and Ex.P-2 are un-admissible documents as they were parties before trial court and they have not filed any written statement in time. However, only to meet out the ends of justice, concluded the rights of the parties and also purchasers of the property in a better manner, opportunity has to be given to the appellants for contesting the suit by filing the written statement."
(emphasys supplied by me)
25. The above finding of the lower appellate court lacks harmony in it. At one breathe, in several places, it says that sufficient opportunities were given to the defendant Nos.3 to 5 to file their written statements, still they did not file it. In the same breathe it has also observed that defendant Nos.3, 4 and 5 who were the appellants before it have not come with proper explanation regarding their non appearance in the Trial Court. Thus, not filing written statement inspite of giving sufficient opportunity to the defendants and the defendants not filing written statement due to their non appearance are two different and contradictory aspects. In the instant case admittedly, the defendant Nos.3, 4 and 5 were appearing in the Trial court through their counsel, but they did not file their written statement.
26. The lower appellate court has also stated that it was 'better for the parties' to go for de-novo trial and for concluding the rights of the parties 'in a better manner', an opportunity has to be given. The said observation does not appears to be with a sound reasoning because nowhere the lower appellate court has stated as to what has warranted it for ordering for de-novo trial that too, permitting the appellants before it to file written statement. It is not clear as to how the appellate court, even after noticing that sufficient opportunities were given to the defendant Nos.3 to 5 still permitted them to file written statement and what it meant by words 'better for the parties' and 'in a better manner'.
27. The lower appellate court also did not notice the fact that agreement of sale was only between the plaintiff and defendant Nos.1 and 2 and that, remaining defendant Nos.3, 4 and 5 since claim that they are also the purchasers of portions of the suit property, they ought to have been more vigilant and if really desired, should have contested the matter at appropriate time. Further even when they were brought in this suit as defendant Nos.3, 4 and 5, neither they choose to file their written statement, nor any counter claim to agitate their alleged right in the property. For years they kept quite and even according to the lower appellate court they have neither shown any reasons nor came up with any explanation about their non filing of written statement. In such a situation, they did not deserve any laxity or sympathy by permitting them to file written statement. If any such permission is given to them, it would result in taking away valuable right, already accrued to the plaintiff and is against the spirit of Order VIII Rule 1 of CPC and also contribute in further delaying the disposal of a old Original Suit which is of the year 2009. Therefore, it has to be held that that act of lower appellate court in permitting the appellants before it (Defendant Nos.3, 4 and 5) to file written statement while remanding the case was uncalled for. Judgment and Decree under appeal before it though was properly set aside and the matter remanded, but the lower appellate court is not justified in ordering the matter to be tried afresh (de-novo trial) and by permitting the defendant Nos.3, 4 and 5 to file their written' statement though with costs.
28. On the other hand, the lower appellate court while remanding the matter could have only stated to re-consider Ex.P-1 and P-2 in the light of Sections 33 to 37 of the Karnataka Stamp Act, 1957 and re- appreciate the evidence after hearing arguments of the parties afresh. Accordingly, though the present appeal does not deserve to be allowed in toto by confirming the Judgment and Decree passed in the Original Suit by the Trial Court by setting aside the Judgment and Decree of the lower appellate court, but the present appeal deserves to be partially allowed by modifying the impugned Judgment under this appeal by confirming the order to the extent of setting aside the Judgment and Decree of the Trial Court and remanding the matter, but setting aside its finding and order of permitting defendant No.3, 4 and 5 to file their written statements though upon a cost of Rs. 15,000/- payable to the plaintiff by them and ordering for fresh trial in the matter.
Accordingly, I proceed to pass the following:
ORDER
(i) The Miscellaneous Second Appeal is allowed in part.
(ii) The Judgment and Decree passed by the Senior Civil Judge, Hukkeri in R.A.No. 11/2012 is set aside in part only to the extent of it permitting the appellants before it (defendant Nos.3, 4 and 5 in original suit) to file their written statement on cost of Rs.15,000/- to be paid by them to the plaintiff and also ordering the trial court for receiving the written statement of those defendants. However, its judgment and decree in setting aside the judgment and decree of the Court of Civil Judge, Sankeshwar in O.S.No.57/2009, dated 15.12.2011 and remanding the matter to the trial court is confirmed.
(iii) The trial court to re-hear the arguments from both the sides and considering the admissibility of Ex.P-1 and P-2 in accordance with law and in the light of observations made above to dispose the matter afresh.
(iv) The parties to appear before the Trial court without waiting for any fresh summons or notice from it on 13.04.2017 at 11:00 a.m. and enable the trial court to dispose of the matter finally within 3 months from the said date.
(v) Registry to send back the records to the concerned court along with a copy of this Judgment immediately.