IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.1919 of 2013 (PAR) BETWEEN :
SRI IBRAHIM SAHEB S/O. LATE ADAM SAHEB, AGED ABOUT 65 YEARS, R/O. OPP. LIONS BHAVAN, BHARATHI STREET, SRINGERI TOWN, CHIKAMAGALORE DISTRICT-577139.
... APPELLANT (BY SMT. ANUSHA ASUNDI FOR SRI A. MADHUSUDHANA RAO, ADVOCATE) AND :
1. TANVEER S/O. LATE ALLISHAHEB, AGED ABOUT 33 YEARS.
2. SHAMSHED BANU D/O. LATE ALLISHAHEB, AGED ABOUT 32 YEARS.
3. MR JAMEER S/O LATE ALLISHAHEB, AGED ABOUT 30 YEARS.
4. MR JAHEER S/O. LATE ALLISHAHEB, AGED ABOUT 28 YEARS.
5. MR. RIZWAN S/O. LATE ALLISHAHEB, AGED ABOUT 26 YEARS.
6. SMT HAZIRABI W/O. LATE ALLISHAHEB, AGED ABOUT 56 YEARS.
ALL ARE R/O. BHARATI STREET, SRINGERI TOWN, KASABA HOBLI, SRINGERI TALUK, CHIKAMAGALORE DISTRICT - 577139.
... RESPONDENTS (BY SRI LOHITH R. FOR SRI N. SHANKARANARAYANA BHAT, ADVOCATE FOR C/R1 AND FOR R2, R3, R5 & R6;
R4 – NOTICE HELD SUFFICIENT VIDE ORDER DATED 04.10.2018) THIS R.F.A. IS FILED UNDER SECTION 96, READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1980, AGAINST THE JUDGMENT AND DECREE DATED 02.09.2013 PASSED IN O.S.21/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS R.F.A. COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The defendant in O.S. No.21 of 2012 has assailed the judgment and decree dated 02.09.2013 passed by the Principal Senior Civil Judge, Chikmagalore. By the said judgment and decree the suit filed by the plaintiffs seeking 65% share in the suit schedule property by partition and separate possession has been granted.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
4. The respondents – plaintiffs filed the suit seeking the relief of partition and separate possession of the suit schedule property. According to the respondents, Adam Saheb and Budenbi had three children, namely, Allisaheb, Ibrahim Saheb (appellant herein) and Zeenath. On the demise of Allisaheb, Allisaheb’s widow and children filed the suit seeking 13/20th share in the suit schedule property by contending that apart from the share of Allisaheb they had also become the owners of the share to be succeeded to by Budenbi and Zeenath on account of two release deeds executed by them which were marked as Exs.P-6 and 7 in the suit. The defendant – appellant herein appeared in the said suit. But no written statement was filed. In fact an application was filed seeking permission to file written statement, but the said application was rejected as it was belated.
5. Subsequently, after considering the evidence on record, the trial Court framed the following issues for its consideration :
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6. The first plaintiff let-in his evidence as P.W.1.
He produced seven documents, which were marked as Exs.P-1 to P-7. On the basis of the said evidence, which is essentially examination-in-chief, as the defendant did not cross-examine P.W.1 nor any evidence was let-in on behalf of the defendant, the trial Court decreed the suit granting 13/20th share in the suit schedule property to the plaintiffs and 7/20th share to the appellant herein. Being aggrieved by the judgment and decree of the trial Court, the defendant in the suit has preferred this appeal.
7. We have heard learned counsel for the appellant and learned counsel for respondent Nos.1 to 3, 5 and 6. Service of notice on respondent No.4 has been held sufficient vide order dated 04.10.2018. We have perused the material on record.
8. Smt. Anusha, learned counsel for the appellant contended that the impugned judgment and decree is virtually an ex parte one. That the appellant herein did not file his written statement. An application was sought seeking permission to file written statement, but the trial Court rejected the said application. Further, the appellant herein, defendant in the suit, was denied an opportunity to cross-examine P.W.1. That the suit has been decreed only on the basis of the evidence let-in by way of examination-
in-chief, which would not have been the basis for decreeing the suit. She, therefore, contended that the impugned judgment and decree of the trial Court may be set aside and the matter may be remanded to the trial Court so as to give an opportunity to the appellant herein to file his written statement and thereafter to also cross- examine P.W.1. She submitted that in the absence of an opportunity being given by the trial Court, there has been violation of principles of natural justice and hence the relief sought for by the appellant herein may be granted.
9. Per contra, learned counsel Sri Lohith appearing for respondent Nos.1 to 3, 5 and 6 supported the judgment and decree of the trial Court and contended that the appellant is simply procrastinating the matter. That no reason has been assigned as to why the appellant herein did not file written statement in the suit or did not take the opportunity to cross-examine the plaintiff - P.W.1. That in the absence of filing any written statement, the trial Court was justified in not giving any opportunity to the appellant herein to let-in his evidence. That there is no merit in this appeal and that the appeal may be dismissed.
10. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
1. Whether the judgment and decree of the trial Court calls for any interference in this appeal?
2. What order?
11. There is no dispute with regard to the relationship between the parties. It is also not in dispute that the respondent – plaintiffs sought 13/20th share in the suit schedule property. It is also not in dispute that the appellant / defendant in the suit did not file his written statement. Of course, at a later point of time, an application was filed seeking permission to file written statement. The said application was rejected. Though the rejection has not been challenged, nevertheless, the fact remains that the suit has been decreed without there being any contest by the defendant in the suit. That apart, the respondent – plaintiffs examined P.W.1 in the suit. But the cross-examination of P.W.1 has been taken as nil.
12. Though the defendant’s counsel in the suit may have asked for time, but the defendant, nevertheless had a right to cross-examine P.W.1 even in the absence of filing a written statement. Thus, the trial Court ought to have granted an opportunity to the defendant in the suit to cross-examine P.W.1.
13. That apart, the rejection of the application filed by the defendant seeking permission to file written statement, though may have been done by the trial Court on account of there being delay in filing the same, nevertheless, has resulted in the defendant not having an opportunity to contest the suit as no evidence could have been let-in by the defendant in the absence of filing of the written statement. The judgment and decree of the trial Court is virtually an ex parte one and uncontested one and more significantly without giving an opportunity to the defendant to cross-examine P.W.1. We find that there is violation of principles of natural justice in the instant case. For the aforesaid reasons, the judgment and decree of the trial Court is set aside.
14. However, the contention of learned counsel for the respondents that there has been procrastination in the matter inasmuch as the suit of 2012 has now been remanded, and therefore, cost would have to be imposed. Hence, the appeal is allowed, subject to payment of cost of Rs.10,000/- to the respondents.
15. Since the parties are represented by their respective counsel, except respondent No.4 herein, they shall appear before the trial Court on 21.08.2019 without expecting any separate notices from the said Court.
16. The trial Court shall issue notice to respondent No.4 herein, thereafter to permit the appellant herein to file his written statement on 21.08.2019 or any other date to be stipulated by the trial Court, it shall take on record the written statement filed by the appellant herein -
defendant in the suit and thereafter frame issues and dispose of the suit in accordance with law.
17. Respondents herein are permitted to let-in additional evidence and the appellant herein is permitted to let-in his evidence and also cross-examine P.W.1 or other witnesses to be examined on behalf of the plaintiffs. The trial Court shall dispose of the suit in accordance with law.
The appeal is allowed and disposed of in the aforesaid terms.
The cost of Rs.10,000/- shall be paid to the respondents by the appellant herein on 21.08.2019 before the trial Court.
Sd/- JUDGE Sd/- JUDGE hnm