IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL NO.1370 OF 2016 (INJ) Between:
Sri Madan Kumar, S/o. Srinnivas, Aged about 34 years, Residing at No.11, Basappa Road, Shanthi Nagar, Bengaluru – 560 027. …Appellant (By Sri Badri Vishal, Advocate) And:
1. Sri Raghuram Reddy, S/o. Late Nanjappa Reddy, C/o. Krishna Reddy, Aged about 41 years, Residing at No.9/B, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
2. Sri Manjunath Reddy, S/o. Late Nanjappa Reddy, C/o. Krishna Reddy, Aged about 39 years, Residing at No.9/B, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
3. Sri Gurureddy, S/o. Late Sarakki Chikkapaiah, Aged 89 years, Residing at No.9/C, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
4. Sri C.P. Krishna Reddy, S/o. Late Sarakki Chikkapaiah, Sinnce deceased by his LRs 4a. Smt. Jayalakshmi, W/o. C.P. Krishna Reddy, Aged about 79 years, Residing at No.9/B, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
4b. Sri Kanakaraj, W/o. C.P. Krishna Reddy, Aged about 61 years, Residing at No.9/B, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
4c. Smt. Sumathi, D/o. Late C.P. Krishna Reddy, Aged about 60 years, Residing at Friends Colony, S.T.Bed, Koramangala, Bengaluru – 560 047.
4d. Smt. Vijayalakshmi, D/o. Late C.P. Krishna Reddy, Aged about 67 years, Residing at Friends Colony, S.T.Bed, Koramangala, Bengaluru – 560 047.
4e Sri Venkatesh Reddy, S/o. Late C.P. Krishna Reddy, Aged about 56 years, Residing at No.9/B, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
4f Sri Chandrashekar Reddy, S/o. Late C.P. Krishnareddy, Aged about 53 years, Residing at No.9/B, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
5. Sri C. Jayarama Reddy, S/o. Late Sarakki Chikkapaiah, Aged about 69 years, Residing at No.9/C, Opp. Police Station, 8th Block, Koramangala Village, Koramangala, Bengaluru – 560 095.
6. Sri Venkat Ram, S/o. Late Muniyappa, Aged about 51 years, 7. Sri Lakshmamma, S/o. Govindraju, Aged about 47 years, 8. Sri Venkatesh, S/o. Late Muniyappa, Aged about 46 years, 9. Sri Srinivas, S/o. Late Muniyappa, Aged about 44 years, 10. Smt. Kamala, W/o. Late Raju, Aged about 41 years, 11. Sri Muniswamy, S/o. Sri Ramaiah @ Handi, Jogi Ramaiah, Aged Major, Residing at K.P. Agrahara, Next to Kadapa Swamy Matta, Bengaluru.
12. Smt. Honamma, W/o. Venkataswamy, Aged about 61 years, 13. Smt. Ramakka, W/o. Ramaswamy, Aged about 59 years, Residing at K.P. Agrahara, Next to Kadapa Swamy Matta, Bengaluru.
14. Smt. Manjula, W/o. Sri Srinivas, Aged about 34 years, Residing at K.P. Agrahara, Next to Kadapa Swamy Matta, Bengaluru.
15. Sri Manju Kumar, S/o. Late Yallappa, Aged about 33 years, 16. Smt. Sarojamma, W/o. Venkatareddy, Aged about 57 years, The agove defendants 6 to 10, 12, 15 and 16 are residing at : Jogi Colony, Hosur Main Road, Madivala Check Post, Bengaluru – 560 095.
17. Sri Sri Ram, S/o. Late Muniyappa, Aged about 53 years, Residing at No.61, Jogi Colony (Tavarekere Slum), Hosur Main Road, Madivala Check Post, Bengaluru – 560 095.
18. Sri S.R. Muniyappa, S/. Late Ramaiah @ Handi, Jogi Ramaiah, Age Major, Residing at No.59, Jogi Colony (Tavarekere Slum), Hosur Main Road, Madivala Check Post, Bengaluru – 560 095.
19. Sri Kanilal P. Bajaj, S/o. Late Purushotham Singh, Aged about 53 years, Residing at No.12, Gandhi Nagar, Bengaluru – 560 009.
20. Sri Devantal Bajaj, S/o. Late Purushotham Singh, Aged about 51 years, Residing at No.12, Gandhi Nagar, Bengaluru – 560 009.
21. Sri Janaki Ram, S/o. Swamy, Aged about 68 years, Residing at No.11, Basappa Road, Shanthi Nagar, Bengaluru – 560 027. …Respondents (By Sri V.B. Shivakumar, Adv. for C/R1, R2, R4 to R10 R3, R11 to R17 – Served Sri Mahendranath Ramani, Advocate for R19 Sri K.S. Uday, Adv. For R21 V/o. Dt.31.10.2018 notice to R18 and R20 dispensed with) This Regular First Appeal is filed under Order XLI Rule 1 R/w Section 96 of CPC, 1908 against the judgment and decree dated 10.08.2016 passed in O.S.No.2587/2007 on the file of the XLI Addl. City Civil and Judge, Bengaluru, decreeing the suit for perpetual injunction.
This Regular First Appeal coming on for Admission, this day, the Court made the following:
ORDER Heard the appellant’s counsel and counsel for respondent Nos.1, 2, 4 to 10 at the time of admission. Other respondents have been served and not entered appearance.
2. The appellant is defendant No.17 in O.S.No.2587/2007 on the file of XLI Addl. City Civil and Sessions Judge, Bengaluru. The respondent Nos.1 to 5 filed the suit against the appellant and some others for permanent injunction in respect of the plaint schedule property. Defendant Nos.1 and 16 appeared before the Court, but they did not file written statement. Defendant Nos.2 to 8, 10, 11 to 13, 15 and 17 were placed exparte. Defendant No.14 filed written statement, but did not cross-examine the P.W.1. Learned trial judge accepted the case of the plaintiffs under these circumstances and proceeded to decree the suit granting permanent injunction against defendant Nos.1 to 8 and 10 to 17 in respect of item No.1 of the plaint schedule property. The suit came to be dismissed in respect of item No.2 of the plaint schedule property.
3. Learned counsel for appellant submits that on 21.10.2014, the appellant made an application under Order IX Rule 7 of CPC seeking to set aside the order placing him exparte and the same was allowed. On 06.08.2015, the appellant got advanced the case and filed three applications under Section 151 of CPC seeking permission to file written statement, for recalling the order dated 22.07.2015 posting the suit for judgment and for re-opening of the case from the stage of judgment. It appears that on 07.08.2015, the date was fixed for pronouncement of judgment. The trial Court did not pronounce the judgment and adjourned the case for hearing on the applications filed by appellant. In the mean time, plaintiff No.4 died. Thereafter, application under Order XXII Rule 10 of CPC was filed to implead some of the purchasers on record and the case was posted for hearing on these applications. Several adjournments were given to hear on these applications. Ultimately, on 10.08.2016, judgment came to be passed. Therefore, now the argument is that, although the appellant made every effort to participate in the proceedings, the trial court did not give an opportunity. Instead of keeping his application pending for quite a long time, they could have been disposed of at an early date. An opportunity should have been given to the appellant to contest the suit. The impugned judgment does not disclose application of mind by the trial court for decreeing the suit just because PW1 was not cross examined and the defendants did not contest the suit. Therefore, he prays for remanding the case to trial Court.
4. Sri V.B. Shiva Kumar, learned counsel for respondent Nos.1, 2 and 4 to 10 argues that sufficient opportunity was given to appellant for filing written statement. Appellant should have filed written statement along with an application under Order IX Rule 7 of CPC. He did not avail the opportunity given by the trial Court. The trial Court has applied its mind in decreeing the suit. Therefore, prays to dismiss the appeal.
5. Having heard both sides, it is to be stated that the way in which the adjournments given by the trial Court is something not acceptable. On 06.08.2015 itself, the trial Court should have decided the three applications filed by the appellant, instead of giving adjournments to hear on these applications as the case was already posted for pronouncement of judgment.
Therefore, nothing prevented the trial Court from giving an opportunity to the appellant to contest the suit by filing written statement. Even otherwise, if the impugned judgment is read, it shows non application of mind for decreeing the suit. In a case where there is no contest also, the court is expected to apply its mind for accepting the plaintiff’s case. There is no rule made merely because defendant does not contest suit must be decreed. In the circumstances, I come to the conclusion that the appeal deserves to be allowed. At the same time, it has to be stated there are lapses on the part of appellant also and for this reason he needs to be subjected to cost. Therefore the impugned judgment is set aside. Suit is remanded to the trial Court. Written statement of the appellant be taken on record. The trial court shall decide the suit afresh. Appellant’s counsel is directed to pay cost of Rs.5,000/- (Rupees Five Thousand Only) to respondent Nos.1, 2 and 4 to 10.
Now Sri.V.B. Shivakumar, submits that since the suit is remanded, the interim order that was in force till disposed of the suit has to be received. This is opposed by the appellant’s counsel. Actually the trial court has to take a decision in this regard, and therefore the respondents 1, 2 and 4 to 10 are given liberty to make an application to the trial court either for revival of the interim order or for granting interim order afresh.
Sd/-
JUDGE PN/-