IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.2490 OF 2007 BETWEEN:
1. SMT. KANTHAMMA W/O. LATE SRI NARAYANASWAMY AGED 52 YEARS R/AT NO.26 6TH CROSS, 3RD MAIN DIVANARA PALYA MATHIKERE, YESHWANTHPUR BENGALURU-560 022.
2. JAIPAL SON OF LATE SRI NARAYANASWAMY AGED 33 YEARS R/AT NO.26, 6TH CROSS 3RD MAIN, DIVANARA PALYA MATHIKERE YESHWANTHPUR BENGALURU-560 022. ... APPELLANTS (BY SRI. S.V. ANGADI, ADV.) AND:
SMT. PARVATHAMMA WIFE OF VEERABHADRAIAH AGED 44 YEARS RESIDING AT NO.146, 6TH MAIN 3RD CROSS, MATHIKERE YESHWANTHPUR BENGALURU-560 054. ... RESPONDENT (SRI. H.T. VASANTH KUMAR, ADV.) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 10.01.2007 PASSED IN O.S.NO.8960/2005 ON THE FILE OF THE CITY CIVIL JUDGE, BENGALURU.
THIS RFA COMING ON FOR HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The present appeal is filed challenging the judgment and decree dated 10.01.2007 passed in O.S.No.8960 of 2005 on the file of XVIII Additional City Civil Judge at Bengaluru City decreeing the suit for perpetual injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property.
2. In this appeal, the appellants would contend that being aggrieved by the rejection of I.A.No.4, they had filed Miscellaneous First Appeal No.6014/2016 before this Court and this Court granted stay for a period of eight weeks. However, the appellants were under the impression that there was a stay of further proceedings in the trial Court. Hence, the appellants could not represent before the trial Court. But, surprisingly when the matter stood for final hearing on 30.08.2007, the appellants for the first time came to know that the trial Court has decreed the suit. The said decision rendered ex-parte, in view of the peculiar facts and circumstances of the case requires interference by this Court.
3. Learned Counsel appearing for the appellants reiterates the grounds urged in Para-8 of the appeal and contends that the appellants were under the impression that this Court granted stay in respect of further proceedings of the suit in O.S.No.8960 of 2005 and hence, they could not appear before the Court below.
4. On the other hand, learned counsel appearing for the respondent would contend that this Court had only granted stay in respect of the order passed on I.A.No.1 and not in respect of the further proceedings of the suit in O.S.No.8960 of 2005 before trial Court. It is his contention that Commissioner was also appointed before the trial Court, who has submitted the report. Thereafter, P.W.1 has been examined before the Court and the Court has also given an opportunity to cross-examine him. In spite of an opportunity, the appellants did not cross-examine P.W.1 and hence, the trial Court proceeded to pass the impugned judgment and decree. Hence, there is no ground to interfere with the impugned judgment and decree.
5. Having heard the arguments of learned counsel for the appellants and also the learned counsel appearing for the respondent, the point that arises for consideration is:
“Whether the Court below has committed an error in granting judgment and decree in favour of the plaintiff.”
6. Having considered the contention of the learned counsel appearing for the appellants and also the learned counsel appearing for the respondent and also on perusal of the entire order sheet of the trial Court in O.S.No.8960 of 2005, it is clear that by order dated 27.03.2006 I.A.No.1 was allowed and I.A.No.4 was dismissed. Being aggrieved by the same, the appellants herein have approached this Court by filing the miscellaneous first appeal. The stay granted in the said appeal is only in respect of the order on I.A.No.1 and not as contended by the learned counsel appearing for the appellants in respect of the further proceedings of the suit in O.S.No.890 of 2005 before the trial Court. However, on perusal of the records, it is noticed that even though the written statement was not filed, the trial Court on 27.03.2006 and 29.05.2006, noted that issues have been framed but, there are no issues on record. Later, in the order sheet dated 23.11.2006, it is noted that written statement was not filed and posted the case for evidence on 05.12.2006. On the said date, the plaintiff was examined and documents at Exs.P1 to 22 were marked and posted the case for cross-examination of P.W.1 on 12.12.2006. On 12.12.2006, it is noted that P.W.1 was present; defendants and counsel for defendants were absent. The cross-examination of P.W.1 and defendants’ evidence were taken as ‘nil’. On the same date, plaintiff filed written arguments. Hence, the case was posted for judgment. The judgment was pronounced after two dates.
7. Having taken note of the manner in which the proceedings before the trial Court has taken place, it is apparent that the trial Court in a hurried manner has proceeded with the matter and even though the written statement was not filed before the trial Court, it is observed that issues are framed however, there are no issues on record. Further, the very submission of the learned counsel for the appellants that there was a stay in respect of further proceedings of the suit in O.S.No.8960 of 2005 cannot be accepted since, the records would reveal that there was no stay of further proceedings. When such being the case, the very contention of the learned counsel for the appellants that the appellants were under the impression that there was a stay in respect of the further proceedings of the suit in O.S.No.8960 of 2005 before the trial Court cannot be accepted.
8. Learned counsel for the respondent has also brought to my notice the fact that Court Commissioner was appointed at the instance of both the parties, who has submitted the report. It is only thereafter, the Court below has proceeded to pass the order. Even though the defendants’ were represented by their counsel before the trial Court, they have not chosen to file the written statement. Hence the trial Court has not disposed of the suit in O.S.No.8960 of 2005 on merits but has proceeded ex-parte. Therefore, in order to meet the ends of justice and to provide natural justice, it is appropriate to set aside the judgment and decree and direct the trial Court to dispose of the matter within the time frame to be fixed by this Court since, the suit was filed in the year, 2005. It is a fit case to impose costs on the appellants for not participating in the proceedings before the trial Court. Therefore, the appellants are liable to pay the litigation expenses to the respondent.
9. In view of the discussions made above, I pass the following:
ORDER (i) The impugned judgment and decree dated 10.01.2007 passed by the XVIII Additional City Civil Judge, Bengaluru City in O.S.No.8960 of 2005 is set aside.
(ii) The parties and their learned counsel are directed to appear before the Court below on 19.08.2019 without expecting any notice and assist the trial Court to dispose of the matter within a period of six months from today without seeking unnecessary adjournments.
(iii) The appellants are directed to pay a cost of Rs.25,000/- to the plaintiff/respondent before the Court below on 19.08.2019. Only on payment of cost of Rs.25,000/- to the plaintiff, the Court below is directed to dispose of the matter within the time frame fixed by this Court by providing opportunity to both the parties.
(iv) Registry is directed to send the records to the trial Court forthwith.
Sd/- JUDGE ST