IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.2434/2007 BETWEEN:
1. NAVYA D/O VISWANATHA AGE:21 YEARS.
2. YASHASWINI D/O VISHWANATHA AGE:11 YEARS.
SINCE MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN BHAGYA- THE 3RD PLAINTIFF.
3. BHAGYA W/O VISHWANATHA AGE:44 YEARS.
ALL ARE RESIDENTS OF NERALAHALLI VILLAGE, ANKANAYAKANAHALLI POST ARAKALGUD TALUK – 573 102.
…APPELLANTS (BY SRI G BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. VISWANATHA D/O DAFFEDAR JAVARAIAH AGE:47 YEARS.
2. JAVANAMMA W/O DAFFEDAR JAVARAIAH AGED ABOUT 32 YEARS.
3. KUM. KAVYA D/O VISWSANATHA AGE:22 YEARS.
4. KUM.VIDHYA D/O VISWSANATHA AGE:20 YEARS.
5. MANCHESH S/O VISWANATHA AGE:14 YEARS.
SL. No.5 SINCE MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT.SHASHIKALA W/O VISHWANATHA.
ALL ARE RESIDING AT KOTTANAGERI BEEDI HASSAN DISTRICT – 573 201.
(BY SRI K M ANILKUMAR, ADVOCATE ... RESPONDENTS FOR R1 – ABSENT, R2 TO R5 – SERVED) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 6.8.2007 PASSED IN O.S.No.199/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN), HASSAN, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for the appellants present.
Learned counsel for respondent No.1 absent.
This appeal by the plaintiffs/appellants is directed against the judgment and decree passed in O.S.No.199/1998 on 6.8.2007 wherein the suit filed by the plaintiffs seeking partition and separate possession against the defendants came to be dismissed by the learned Principal Civil Judge (Sr.Dn) at Hassan.
2. In order to avoid confusion and overlapping, the parties herein are referred to with their rankings held by them before the trial Court.
3. The case of the plaintiffs in brief is as under:
Plaintiff Nos. 1 and 2 are born through the wedlock of plaintiff No.3 and defendant No.1. The marriage between them was performed on 22.5.1985 at Gorur. Defendant No.1 turned out hostile to the family and he started ill treating the plaintiffs for one reason or the other. In addition, defendant No.1 took second wife and neglected the plaintiffs and deserted them and also failed to maintain them. Due to which, plaintiff No.3 started to reside with her parents. Defendant No.1 is running a flour and huller mill, runs a lorry for hire and also owning huge property. The father of the defendant No.1 died during 1995 leaving behind him the defendant No.1 and the plaintiffs. The properties belonging to the joint family and item Nos. 7 and 8 of the schedule property were purchased by Javaraiah. Defendant No.1 gets huge income of Rs.30,000/- per month. In order to defeat the claim of plaintiffs, he is trying to alienate the properties.
4. The defendants contested the plaintiffs’ suit by filing written statement denying the plaint averments and contending that suit schedule properties are the self acquired properties of defendants and they are not joint family properties and plaintiffs are not entitled for any share in the same.
5. The trial Judge framed the issues on joint family properties, relationship, nature of properties, existence of joint family and court fee.
6. Before the trial Judge, plaintiff No.3 got examined herself as PW1 and got marked Exs.P1 to P19 which are as under:
Ex.P1 to Ex.P5 - Khatha extracts Ex.P6 to Ex.P14- Certified copy of Khatha extracts Ex.P15 to Ex.P17-Certified copy of sale deeds Ex.P17 and Ex.P19 – RTC extracts The defendants have not contested the matter after filing written statement. Neither the documents were filed by the defendants nor they cross examined PW1 or adduced their oral evidence.
7. Learned trial Judge considering the materials available on file, dismissed the suit of the plaintiffs by the impugned judgment and decree, which is challenged by the plaintiffs in this appeal.
8. Sri. G.Balakrishna Shastry, learned counsel for plaintiffs/appellants would submit that suit was dismissed, though the plaintiffs had a very good case on merits and the learned trial Judge failed to look into the contents of the plea of the plaintiffs, principles of Hindu Law as applicable to them and also the documents Exs.P1 to P19 produced by them. He would further submit that even without cross examining the versions in the judgment, it is inferred and liable to be set aside.
9. Learned counsel for respondent No.1 remained absent.
10. The moot question for consideration would be:
Whether the suit could have been dismissed in its present form and the procedures are properly followed?
11. Before adverting to regular aspects of the case, it is necessary to place on record the observations made by learned trial Judge which is clear on perusal of evidence of PW1 at para No.7 of its judgment which is as under:
“7. As can be seen the relationship between the parties is not in dispute It is the simple case of the plaintiffs that all the suit schedule properties originally belonged to the Late Javaraiah, the father of the first defendant and the grand father of the plaintiffs No. 1 and 2 and as such they are entitled for equal share in the suit schedule properties. As can also be seen from the written statement, one and the only defence that is set up by the defendants is that the suit schedule properties are the self acquired properties of the defendants and they are not joint family properties and therefore the plaintiff No. 1 and 2 are not entitled for any share. In the light of the above contentions taken up by the defendant, obviously, it is the bounden duty of the plaintiffs to establish that the suit schedule properties are the properties of the joint family consisting of plaintiffs No. 1 and 2 and the defendants. The PW1 N.R. Bhagya the 3rd plaintiff is the only witness, who is examined for the plaintiffs. It is true she is not at all cross examined by the defendants and as such her evidence remains undisputed and unchallenged. But a careful perusal of the examination in chief of PW1 would clearly show that she has absolutely not stated anything about the nature of properties or the nature of rights the plaintiffs No. 1 and 2 have got in the suit schedule properties. She has simply deposed that after the marriage she was ill treated and neglected by her husband i.e. the first defendant as well as the other defendants. Further she has also deposed that since she could not bear with the ill treatment of the defendants, she returned to her parental house and she herself has been looking after the welfare and education of the minor plaintiffs. She has also deposed regarding the income of the first defendant and also the award of maintenance by a criminal court from the first defendant. As such her entire evidence is completely devoted to the ill treatment and neglect by the defendants. Except this she has absolutely not stated as to whether the suit schedule properties are the joint family properties and also as to whether the plaintiffs have got any share in the suit schedule properties or not. The only fact deposed by her regarding the suit schedule properties reads thus:
“ PÉ®ªÀÅ ªÀÄ£ÉUÀ¼ÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸Àj£À°è ºÁUÀÆ E£ÀÆß PÉ®ªÀÅ ªÀÄ£ÉUÀ¼ÀÄ 2£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸Àj£À°ègÀÄvÀÛªÉ.”
12. The judgment is pronounced after appreciating the evidence including the oral and documentary, as observed in the learned Trial Judge. But the appreciation of evidence runs as if directly the witness has given her deposition, without affidavit.
13. It is necessary that Code of Civil Procedure, 1908, underwent amendment by Act No.46/1999 with effect from 1.7.2002, wherein, Rule 4 Sub Rule 1 and 2 of Order 18 of CPC and the amended provision is as under:
“4. Recording of evidence – (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the arty who calls him for evidence;
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross examination and re- examination) of the witness in attendance, whose evidence (examination in chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:”
14. Thus, Rule 4 of Order 18 deals with regard to recording of evidence, wherein, it is mandatory that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Further the cross examination or re- examination of the witness in attendance by affidavit is furnished to the court shall be taken either by the Court or by the Commissioner appointed by it.
15. These mandatory procedure for recording of evidence appears to have been last sight of by the learned trial Judge. By the tone and tenor of appreciating evidence as stated above tells that straightaway entry is given to the plaintiffs to adduce her evidence as PW1, considering the fact that she is the 3rd plaintiff. The evidence is recorded on 30.7.2003, invariably, the amendment of the year 2002 came into force with effect from 1.7.2002. Thus, it was mandatory on the part of the court to ask the witness Smt. Bhagya examined as PW1 to produce affidavit before production of documents or cross examination.
16. The learned trial Judge has allowed the wild card entry to the witness without affidavit by allowing the examination and it happened in gross violation of Rule 4 of order 18 of the Code of Civil Procedure. Thus, I find material lapse going to the root of the mandatory procedure has happened at the stage of recording of oral evidence of the PW1 and it has direct impact on the case on hand. Thus, in the circumstances, considering the method adopted by the learned trial Judge, I find the judgment and decree impugned herein is liable to be set aside as there is a material lapse regarding the basic rules of recording the evidence and examination in chief. In the present shape of the court proceedings being conducted contrary to the provisions of the procedural law and it is liable to be set aside and the trial court is to be directed to record the evidence in accordance with Rule 4 sub Rule 1 and 2 of Order 18 CPC which is enacted by way of amendment with a definite purpose and the court are under bounden duty to look into the provisions of law, more particularly, regarding basic principles of Civil Procedural law, as recording of evidence in the manner as done by the trail court may not reflect proper image. The purpose of enacting legislation or effecting amendment basically is with an object to follow it and such acts cannot be frustrated by the Courts.
17. In the result, I proceed to pass the following:
ORDER (i) Appeal is allowed.
(ii) The judgment and decree passed in O.S.No.199/1998 on 6.8.2007 by the trial Court is hereby set aside and matter is remanded to the trial court with a direction to record the chief examination of PW1 exactly in accordance with Rule 4 of Order 18 CPC and give opportunity to both the plaintiffs and defendants to present their claim and contentions in writing or oral and thereafter to adjudicate the suit in according with law.
(iii) Considering the age and stage of the case and to avoid wastage of judicial time, it is necessary to direct the parties to appear before the trial court on 31.01.2020 without waiting for further notice or process as they are notified the said hearing date by this court itself.
(iv) The trial court considering the date of institution of the suit, shall dispose of the matter as expeditiously as possible, however, with an outer limit of six months from the date of first hearing.
(v) No orders as to costs.
tsn* Sd/- JUDGE