IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE N. K. SUDHINDRARAO REGULAR SECOND APPEAL No.1029/2012 BETWEEN:
GOPALAPPA, S/O LATE MUNISWAMAPPA, SINCE DECEASED REPRESENTED BY HIS LEGAL HEIRS.
1(a) KEMPANNA, S/O LATE GOPALAPPA, AGED ABOUT 65 YEARS, 1(b) NARAYANASWAMY, S/O LATE GOPALAPPA, AGED ABOUT 60 YEARS, 1(c) SRIRAMAPPA, SINCE DECEASED BY LRS 1(c)(i) SMT.BHAGYAMMA, W/O LATE SRIRAMAPPA, AGED ABOUT 40 YEARS, R/A NALLAPANAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT – 563 130.
1(d) GOVINDAPPA, S/O LATE GOPALAPPA, AGED ABOUT 46 YEARS, 1(e) ANJANAPPA, S/O LATE GOPALAPPA, AGED ABOUT 43 YEARS, 1(f) RAJKUMAR, S/O LATE GOPALAPPA, AGED ABOUT 39 YEARS, 1(g) SHIVAMMA, W/O LATE KRISHNAPPA, AGED ABOUT 60 YEARS, 1(h) SUNANDAMMA, W/O LATE KENCHAPPA, AGED ABOUT 45 YEARS, ALL ARE R/O NALLAPANAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, DISTRICT KOLAR – 563 130.
…APPELLANTS (BY SRI.G.BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. VENKATESHAPPA, S/O LATE BACHANNA @ BACHAPPA, AGED ABOUT 52 YEARS, R/AT NALLAPANAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, DISTRICT KOLAR – 563 130.
2. NAGAPPA, S/O BACHAPPA @ BACHAPPA, AGED ABOUT 35 YEARS, R/O NALLAPANAHALLI VILLAGE, YESHWANTHAPURA POST, KASABA HOBLI, MALUR TALUK, DISTRICT KOLAR – 563 130.
... RESPONDENTS (BY SRI.G.CHANDRASHEKARAIAH, ADVOCATE FOR R-1 & 2) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.01.2012 PASSED IN R.A.NO.20/2011 (OLD R.A.NO.6/2006) ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., MALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.11.2005 PASSED IN O.S.NO.185/1995 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) MALUR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the judgment and decree dated 12.01.2012 passed by the learned Senior Civil Judge and JMFC., Malur in R.A.No.20/2011 (Old R.A.No.6/2006), wherein the appeal came to be allowed with cost and the judgment and decree passed in O.S.No.185/1995 dated 26.11.2005 on the file of Principal Civil Judge (Jr.Dn.), Malur was set aside and the suit of the plaintiff for permanent injunction came to be dismissed.
2. The learned counsel for appellant is present and the learned counsel for respondents is absent.
3. In order to avoid confusion and overlapping, the parties are referred in terms of their respective rank as stood before the trial court.
4. The plaintiff filed original suit in O.S.No.185/1995 against the defendant No.1- Venkateshappa, S/o Bachappa and defendant No.2- Nagappa, S/o Bachappa, for permanent injunction and the learned trial judge has decreed the suit on 26.11.2005, on the basis of oral and documentary evidence as record. Against the same, the defendants preferred an appeal in R.A.No.20/2011 (Old R.A.No.6/2006) on the file of Senior Civil Judge and JMFC., Malur. The suit schedule property is said to be vacant land bearing Serial No.2, Assessment No.2/2, measuring East to West : 69 feet and North to South – 150 feet with one Honge Tree situated at Nallappanahalli village in Malur Taluk. It is necessary to note that plaintiff claimed to be the owner and person in possession had sought for prohibitory orders against the defendants.
5. Defendants appeared and resisted the claim.
The suit came to be decreed, which was challenged by the first defendant in Regular appeal which came to be allowed by setting aside the Judgment and Decree passed in original suit as stated above and the same is challenged by the plaintiff in this appeal.
6. Sri. G. Balakrishna Shastry, learned counsel for appellant, would submit that minimum fair opportunity was not given and the appeal was adjudicated without giving regard to the principles of natural justice. He further submits that the appellant (defendant no.1) before the First Appellate Court is one Venkateshappa, S/o Late. Bachanna and the respondent no.1 (plaintiff) is Gopalappa, S/o Late Muniswamappa and respondent no.2 (defendant no.2) is Nagappa, S/o Late Bachanna. Counsel for respondents absent.
7. The following substantial question of law arises for consideration:
“Whether the proceedings in R.A.No.20/2011 (Old R.A.No.6/2006) is valid by virtue of the death of respondent no.1 (plaintiff) on 18.03.2008 i.e., three years earlier to disposal of the appeal ?”
8. The appeal is said to have been filed on 31.12.2005 and it was disposed off on 12.01.2012. Meanwhile, it is stated that respondent no.1 (plaintiff) Gopalappa died on 18.03.2008. The said matter was neither reported, nor dealt with.
9. The First Appellate Judge continued the proceedings without considering the pleadings of legal representatives of respondent no.1/plaintiff and the appeal filed by the appellant (defendant no.1) came to be allowed with cost by setting aside the judgment and decree passed by the trial court without having regard or considering the death of defendant no.1 and the consequential procedure that should have been invariably followed. It is not the case that respondent no.1 died after hearing the arguments and before pronouncement of judgment. Therefore, the judgment passed by the First Appellate Court is neither justifiable nor tenable and liable to be set aside.
10. In the result, the appeal is allowed. The impugned judgment is set aside. The matter is sent back to the First Appellate Court with a direction to examine whether the legal representatives of respondent no.1/plaintiff – Gopalappa have valid reasons to come on record in the light of abatement already deemed to have been made and dispose of the matter on merits as expeditiously as possible, however, within an outer limit of nine months from the first date of hearing after the remand. The substantial question of law is answered accordingly.
Sd/- JUDGE Np/-