1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF APRIL, 2019 BEFORE THE HON'BLE MRS. JUSTICE K. S. MUDAGAL RSA.NO.1396/2015 (DEC/INJ) BETWEEN:
SRI MUNIYAPPA S/O LATE SRI MUNISWAMAPPA, AGED ABOUT 60 YEARS, RESIDING AT JINNAGARA VILLAGE, JADIGENAHALLI HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT-583 216.
...APPELLANT (BY SRI B.K.CHANDRASHEKAR, ADVOCATE) AND:
1. SMT. NARAYANAMMA D/O LATE MUNIAJJAPPA, AGED ABOUT 55 YEARS 2. SRI RAGHU AGED ABOUT 42 YEARS BOTH ARE RESIDING AT KURUBAR PET, HOSAKOTE TOWN, BANGALORE RURAL DISTRICT – 583 216.
...RESPONDENTS (BY SRI K.SURESH, ADVOCATE FOR C/R1 & R2) 2 THIS RSA IS FILED UNDER SEC.100 OF CPC., R/W ORDER XLII RULES 1, 2 AND 3 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 27.04.2015 PASSED IN RA.NO.73/1988 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED: 18.04.1988 PASSED IN OS.NO.542/1979 ON THE FILE OF ADDITIONAL II MUNSIFF, BENGALURU.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal of the plaintiff arises out of the judgment and decree dated 27.04.2015 in RA.No.73/1988 passed by the I Additional Senior Civil Judge, Bangalore Rural District, Bangalore.
2. By the impugned judgment and decree, the 1st Appellate Court has dismissed the appeal of the appellant/plaintiff and confirmed the judgment and decree dated 18.04.1988 passed by the Additional II Munsiff, Bangalore, in O.S.No.542/1979. By the said judgment and decree, the trial Court had dismissed the 3 suit of the appellant/plaintiff for declaration and damages etc.
3. The appellant filed O.S.No.542/1979 against the respondents for declaration that the defendants are not related to him in any way; for damages of Rs.400/- for defaming him and also for perpetual injunction restraining them from publishing in any manner to anybody as his wife and son.
4. For the purpose of convenience, parties will be referred henceforth with their ranks before trial Court.
5. The plaintiff’s case in brief is as follows:
He wanted to marry one Bhagyamma D/o Chikkasampallappa of Jinnagara Village. Defendant No.1 obstructed the said marriage claiming that she is his wife and created scene in the public view and defamed him. He has never married defendant No.1 and 4 defendant No.2 is not his son. Defendant No.1 filed O.S.No.157/1973 on the file of the Munsiff, Chintamani, claiming to be his wife, which was dismissed on 14.06.1979. The defendants are claiming as his wife and son. Therefore, he has filed a suit seeking the aforesaid reliefs.
6. The defendants filed written statement on 13.07.1973. Their defence in brief is as follows:
Plaintiff married defendant No.1 on 09.06.1969 as per Hindu Customs in his house and out of the said wedlock defendant No.2 was born. In the written statement in O.S.No.157/1973, the defendant admitted that he lived with defendant No.1 upto May, 1971. Plaintiff is a womanizer and tried to enter into bigamous marriages thrice. That was averted by issuing public notice dated 16.09.1979 in “Samyuktha Karnataka” and “Kalarava” newspapers. Several notices were issued to 5 the plaintiff not to enter into bigamous marriages. Suit is not maintainable.
7. On the basis of the said pleadings, the following issues were framed:
(1) Whether the plaintiff proves that the defendants are not related to him in any way?
(2) Whether the plaintiff proves that the act of the first defendant lowered his prestige in the eyes of the public?
(3) Whether the plaintiff proves that he is entitled for damages of Rs.400/- towards damages?
(4) To what order?
8. The plaintiff got examined himself as P.W.1 and got marked Exs.P.1 to P.3 the certified copy of the order sheet, plaint and written statement in O.S.No.157/1973. The defendants did not adduce any evidence.
6 9. The trial Court by the judgment and decree dated 18.04.1988 dismissed the suit on the following grounds:
(i) In Ex.P.3 the written statement filed in O.S.No.157/1973 the plaintiff himself has stated that himself and defendant No.1 had never lived together ever since 22.05.1971. That presupposes that, prior to that, they lived together.
(ii) In the said written statement, plaintiff himself has stated that Kadugodi Police summoned him and his parents to the police station on the complaint by defendant No.1 and informed that she is pregnant, but he disowned the same.
(iii) The evidence of P.W.1 is unacceptable and lacks credibility.
(iv) The suit was once dismissed for non- payment of court fee and the plaintiff imputed blame on 7 his counsel that counsel had not informed him about the requirement of court fee, which goes to show that plaintiff is capable of making baseless allegations.
(v) The plaintiff has failed to prove that his reputation is in any way lowered.
10. Challenging the said judgment and decree, the plaintiff filed RA.No.73/1988. The said appeal was once heard exparte and allowed on 03.03.1992 and the suit of the plaintiff was decreed.
11. The defendants filed Misc. Petition Nos.111/2000 and 112/2000 under Order 41 Rule 21 read with Order 9 Rule 13 of CPC and Sections 151 of CPC seeking setting aside of the exparte judgment in RA.No.73/1988 and also for re-hearing the appeal. Plaintiff contested those applications.
8 12. In those applications, the defendants contended that after filing the written statement, reconciling with the defendants, the plaintiff took them to his house and stayed with them. They further contended that without their knowledge, plaintiff managed to get an endorsement that they have refused notice, and playing fraud on them and the Court, he managed to secure exparte judgment.
13. In the said misc. petitions, the defendants were examined as P.Ws.1 to 4 and got marked marriage invitation card, marriage photographs as well as negatives, birth certificate, study certificate and transfer certificate of defendant No.2 and letter of Head Master of Government School issued as Exs.P.1 to P.8.
14. The plaintiff was examined as R.W.1 and got marked the written statements of defendant Nos.1 to 3 9 in O.S.No.383/1997 as Exs.P.1 to P.3. The 1st Appellate Court on hearing, dismissed Misc. Petitions Nos.111/2000 and 112/2000.
15. Defendant Nos.1 and 2 challenged the said order before this Court in MFA.Nos.4747/2013 and 4748/2013. This Court vide order dated 06.01.2014 accepting the case of the defendants allowed the appeals and directed the 1st Appellate Court to re-hear RA.No.73/1988 and decide the matter.
16. The plaintiff challenged the said order of this Court in SLP (C) No.21797-21798/2014 before the Hon’ble Supreme Court. The Hon’ble Supreme Court dismissed those petitions on 24.11.2014. The order of the Hon’ble Supreme Court reads as follows:
“Upon hearing the counsel the Court made the following ORDER Mediation between the parties are failed.
10 We do not find any merit in the special leave petitions.
Accordingly, the special leave petitions are dismissed”.
(emphasis supplied) 17. After the orders in MFA.Nos.4747/2013 and 4748/2013, the defendant filed I.A.No.4 before the 1st Appellate Court to take on record the evidence of the appellant, respondent and the witnesses led in Misc. Petition Nos.111/2000 and 112/2000 and to consider the same as evidence of the parties in the case. In other words, the respondents/defendants sought to adopt the evidence adduced in the above said misc. petitions as evidence.
18. The 1st Appellate Court by order dated 05.03.2015 allowed that application and received the evidence adduced in Misc. Petition Nos.111/2000 and 112/2000 in the appeal. The appellant/plaintiff did not 11 challenge the said order and thereby the said order attained finality.
19. The 1st Appellate Court after hearing the parties, by the impugned judgment and decree, dismissed the appeal on the following grounds:
(i) I.A.No.4 filed to adopt the evidence recorded in Misc. Petition Nos.111/2000 and 112/2000 was allowed and the said evidence was taken on record of the case and the order was not challenged. Therefore, the said evidence can be looked into.
(ii) The marriage invitation card-Ex.P.1 produced in Misc.Petition Nos. 111/2000 and 112/2000 and the oral evidence adduced by the defendants respondents in the said case prove that the appellant was married to respondent No.1.
(iii) Exs.P.2 to 4 photographs and negatives of the parties prove that the plaintiff had married 12 defendant No.1 on 09.06.1969 in his house at Jinnagara Village.
(iv) Ex.P.6 the certificate issued by the Government Kannada Model School, Hosakote Town, issued at the instance of plaintiff himself shows that defendant No.2 was born out of the wedlock of plaintiff and defendant No.1.
(v) Exs.P.5, 7 and 8 the birth certificate, transfer certificate issued by the Head Master, Government Higher Primary School, Jinnagara, corroborate Ex.P.6 and the evidence of defendants regarding the marriage of plaintiff and defendant No.1 and paternity of defendant No.2.
(vi) In MFA.Nos.4747/2013 and 4748/2013 High Court accepted the contentions of the defendants that though they were residing with plaintiff, playing fraud, plaintiff managed to secure the exparte decree.
13 20. The witnesses examined on behalf of the defendants in Misc.Petition Nos.111/2000 and 112/2000 are aged persons and they are competent persons to speak about the marriage of plaintiff and defendant No.1.
21. This Court admitted the above appeal to consider the following substantial questions of law:
(i) Whether the Courts below were justified in rejecting the claim of the plaintiff and dismissing the suit though the defendants did not put forward their defence either before the Trial Court or before the First Appellate Court?
(ii) Whether the First Appellate Court was justified in dismissing the appeal by considering the evidence adduced in Misc.Petition Nos.111/2000 and 112/2000?
22. Sri B.K.Chandrashekar, learned counsel for the appellant seeks to assail the judgment and decree of the 1st Appellate Court on the following grounds:
14 (i) The 1st Appellate Court traversed beyond the evidence of the parties on record of the 1st Appellate Court, which led to unsustainable findings.
(ii) The 1st Appellate Court was in error in receiving the evidence recorded in Misc.Petition Nos. 111/2000 and 112/2000 and looking into the same, in view of Order 13 Rule 4 of CPC, and the plaintiff did not have any chance to meet the said evidence.
23. In support of his arguments, he relied upon the following judgments:
(i) Lokara Om Kumar Vs. Baikan Satyanarayana and Others – AIR 2007 AP 3;
(ii) G.Sudhaker Reddy Vs. M.Pullaiah – LAWS(APH) 2015 3 58;
(iii) Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Another – (2003) 8 SCC 745; and 15 (iv) Sudir Enginiring Company Vs. NITCO Roadways Limited – LAWS (DLH) 1995 3 102.
24. Per contra, Sri K.Suresh, learned counsel for the respondents seeks to support the impugned judgment and decree passed by the 1st Appellate Court on the following grounds:
(i) Basically, the evidence adduced by the plaintiff before the trial Court itself was sufficient for dismissal of his suit.
(ii) In Ex.P.3 written statement of the defendants in O.S.No.157/1973, appellant stated that himself and defendant No.1 never met each other ever since 22.05.1971 since she left him in May, 1971 and lived with her parents thereafter. That admission was sufficient for proof of relationship and dismissal of the suit.
(iii) The records in Misc.Petition Nos.111/2000 and 112/2000 were nothing, but the records of 16 R.A.No.73/1988 as that was only a supplemental proceeding to the regular appeal and therefore, it cannot be said that those are the records of another case.
(iv) The appellant did not challenge the order passed on I.A.No.4 receiving the said records in evidence and therefore, at this stage, he cannot question the correctness of the said order. The 1st Appellate Court looked into those records to render substantive justice.
(v) The records clearly show that the defendants did file the written statement. Therefore, the contention that they did not put forward their defence, does not sustain. In fact, issues were framed on the basis of such written statement.
(vi) After defendants filing the written statement with oblique motive, the plaintiff in the guise of conciliation, took them to his house and stayed with 17 them. Due to said re-union, though got three more issues, he filed an appeal and managed to get an endorsement that they have refused to receive the notice and secured the exparte judgment and decree in RA.No.73/1988.
25. The plaintiff contested Misc.Petition Nos.111/2000 and 112/2000 by filing objection statement and by adducing evidence. Though, the 1st Appellate Court dismissed those petitions, this Court in MFA.Nos.4747/2013 and 4748/2013 accepting the said contention allowed those appeals. It is said that the said order was upheld by the Hon’ble Supreme Court.
Reg. non-putting forward defence:
26. The records show that defendants did file their written statement in the case. The learned counsel for the appellant, relying on the observations in the orders in MFA.Nos.4747/2013 and 4748/2013 that all 18 contentions of parties are kept open, submits that those orders cannot be taken as adverse evidence against the appellant. But still the fact remains that the explanation of the defendants regarding for not appearing in the courts below at later stages was accepted by this Court.
Reg. Reception of evidence led in Misc.
Petition Nos.111/2000 and 112/2000:
27. So far as legality of receiving the evidence recorded in Misc. Petition Nos.111/2000 and 112/2000, the first question is “whether those proceeding constitute a separate proceeding independent of RA.No.73/1988 before the 1st Appellate Court?
28. Those petitions were filed under Order 41 Rule 21 read with Order 9 Rule 13 of CPC and under Section 151 of CPC. Order 41 Rule 21 of CPC reads as follows:
“Re-hearing on application of respondent against whom ex parte decree made:- Where 19 an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him”.
29. The application shall be filed before the Appellate Court for re-hearing of appeal itself indicates that the proceedings under Order 41 Rule 21 of CPC are not independent proceedings, but they are the part of the proceedings in the regular appeal before the Appellate Court. Therefore, the contention that they were totally different proceedings cannot be accepted.
30. Further, the appellant did not challenge the order passed on I.A.No.4 receiving those records in 20 evidence of the Appellate Court. The said order has attained finality. Therefore, the correctness of the order or consequent effect of the same cannot be questioned at this stage. Therefore, it cannot be said that the 1st Appellate Court looking into the documents and depositions recorded in Misc. Petitions Nos.111/2000 and 112/2000 vitiated the judgment of the 1st Appellate Court. The judgments relied upon by the learned counsel for the appellant are not applicable to the facts of the case.
31. Further those proceedings were between the same parties in respect of the same subject matter. The 1st Appellate Court relied upon the depositions of P.Ws.1 to 4, more particularly, P.Ws.2 to 4 in the said case. Section 80 of the Indian Evidence Act states that whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a 21 witness in a judicial proceeding or before any officer authorized by law to take such evidence, the Court shall presume that the document is genuine. On that count also, no illegality can be found in the 1st Appellate Court relying on the depositions recorded in Misc. Petitions Nos.111/2000 and 112/2000.
32. In his own document Ex.P.3 the written statement filed in O.S.No.157/1973 in Paragraph No.5 the appellant admitted as follows:
“The plaintiff and 1st defendant have never met each other ever since 22.05.1971 when the plaintiff lived in parents’ house”.
33. In Paragraph No. 6 of the said document, he admits as follows:
“They never lived together after the plaintiff left the defendant in May, 1971”.
22 34. The plaintiff has not explained as to why they lived together prior to May, 1971. It was not his case that their stay together was an extra marital relationship. Under the said circumstances, the trial Court relying on the said admissions has dismissed the suit. If once it is held that plaintiff and defendant No.1 were husband and wife by virtue of Section 112 of Indian Evidence Act, defendant No.2 becomes son of the plaintiff.
35. For the aforesaid reasons, this Court does not find any illegality in the dismissal of the suit by the courts below. The material on record abundantly shows that since 1973 the plaintiff by filing the said suit and appeal drove the defendants to pillar to post. He has subjected the respondents to social stigma, persecuted and tormented them for more than five decades. This is nothing, but an abuse of process of Court.
23 36. Under the said circumstances, the substantial questions of law are answered in favour of the respondents. The appeal is dismissed with costs throughout and compensatory cost of 25,000/- is payable by the appellant to each respondent within four weeks from the date of receipt of a copy of this order. Failing which, the respondents have the right to recover the same in the execution proceedings.
Sd/- JUDGE PB