IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF SEPTEMBER, 2015 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
R.S.A. NO.858/2006 BETWEEN:
1. SMT. ZICKRUNNISA W/O. LATE SUBU SAB AGED 72 YEARS.
2. SMT. NOORUNNISA W/O. LATE CHOTE SAB AGED 65 YEARS.
3. SRI. BASHA SAB S/O. LATE SYED HABEEB AGED 65 YEARS.
4. SRI. SYED NIZAR, S/O. LATE SYED HABEEB AGED 55 YEARS.
ALL ARE R/O. NALEGALLI HOSKOTE TOWN, 562114, BANGALORE RURAL DISTRICT.
(BY SRI. CHANDRAKANTH R. GOULAY, ADV.,) AND:
1. SMT. AMINA BI W/O. LATE SYED GHOUSE AGED 66 YEARS, 2. SRI. SYED HASAM S/O. LATE SYED GHOUSE AGED 42 YEARS, ... APPELLANTS 3. SRI. SYED NASIMUDDIN S/O. LATE SYED GHOUSE AGED 40 YEARS.
4. SRI. SYED NARASUDIN S/O. LATE SYED GHOUSE AGED 38 YEARS.
5. SRI. SYED NASEERUDDIN S/O. LATE SYED GHOUSE AGED 36 YEARS.
6. MS. ISRETH SULTANA D/O. LATE SYED GHOUSE AGED 46 YEARS.
7. MS. TAJUNNISA D/O. LATE SYED GHOUSE AGED 33 YEARS, 8. MS. NASARATH SULTANA D/O. LATE SYED GHOUSE AGED 30 YEARS.
ALL ARE RESIDENTS OF C/O. SYED HASHAM (NEAR SILK TWISTING FACTORY NALA GALLI, HOSKOTE TOWN BANGALORE RURAL DISTRICT-562114) ... RESPONDENTS (BY SRI B.V. GANGIREDDY, ADV., FOR R1 TO R8) * * * THIS APPEAL IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.02.2006 PASSED IN R.A. NO.39/2005 ON THE FILE OF THE PRESIDING OFFICER, DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT- III, BANGALORE RURAL DISTRICT DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.01.1997 PASSED IN O.S. NO.351/1995 ON THE FILE OF THE MUNSIFF AND JMFC., HOSKOTE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is an appeal preferred by the appellants- defendants being aggrieved by the judgment and decree in R.A. No.39/2005 on the file of the Fast Track Court-III, District and Sessions Judge, Bengaluru Rural District dated 15.02.2006, confirming the judgment and decree in O.S. No.351/1995 on the file of the Munsiff and JMFC., Hoskote dated 31.01.1997.
2. The suit schedule property is a dwelling house roofed with bamboo and mud with vacant site measuring 80’x70’x35’/2 bearing khatha No.2324- 2054/1519 situated at Nalagalli, Hosakote described in the schedule.
3. The plaintiff is the daughter-in-law of one Syed Mustafa Sab who was the absolute owner of the suit schedule property and the said Mustafa Sab had only one son by name Syed Gouse who was the husband of 1st plaintiff and the said Syed Gouse was also died on 31.05.1987 and the plaintiffs are the legal heirs to succeed the entire estate of the deceased. The defendant Nos.1 and 2 are the daughter-in-laws of brother of deceased Mustafa sab and defendant Nos.3 and 4 are the sons of his father- in-law’s brother. The suit schedule property is the self acquired property of late Syed Mustafa sab and after the death of Syed Mustafa Sab, Syed Gouse was the only legal heir and the property was devolved on the husband of the plaintiff No.1. Plaintiffs are in possession of the suit schedule property paying tax to the Municipality. The defendants are close relative of the deceased Syed Mustafa Sab. After one year of the death of Syed Gouse, husband of defendant Nos.1 and 2 requested the plaintiff No.1 and their sons and daughters to allow them in possession of the suit schedule property as they do not have house of their own, assuring them that they would vacate the possession and handover the same to them whenever they required for their use and the plaintiffs believed the version of the deceased husbands of defendant Nos.1 and 2 with their mutual understanding, the suit schedule property was given to them and the defendants are in the occupation of the suit schedule house since from seven years as permissive possession. The plaintiffs are now in the need of the suit schedule premises as the grand children of deceased Syed Mustafa Sab wanted to start business of their own in the suit schedule property. So they have filed the suit seeking possession of the suit property.
4. Even after service of summons to the defendants, they have not appeared before the Court below and they were placed ex-parte and the case was posted for evidence. 1st plaintiff was examined as PW.1 and documents were marked as Exs.P1 to P14. The trial Court considering the material placed on record, decreed the suit of the plaintiff with cost.
5. The materials also goes to show that in the meanwhile, defendants filed the application before the trial Court along with written statement but the same was rejected. Against the said order, the appellants herein also preferred Misc.Appeal, that was also dismissed. But the materials placed on record i.e. the order passed by this Court, in the Civil Revision Petition No.1490/2000, allowed the Civil Revision Petition and ordered for restoration of the original proceedings before the trial Court giving time to the defendants to file their written statement and go on with a matter. But looking to the materials placed on record, even after passing of such order by this Court, the defendants who are the appellants herein were not diligent in pursuing their remedy before the trial Court and hence, the trial Court proceeded with the matter and decreed the suit. The judgment and order passed by the trial Court challenged before the 1st appellate Court, the 1st appellate Court by its judgment and decree dated 15.09.2006, dismissed the appeal.
6. In this appeal, the appellants/defendants have also filed the application in I.A. No.2/2006 under Order 41 Rule 27 of C.P.C. requesting the Court to permit the appellants to produce the additional evidence by way of documents which they have produced. The other side objected the said application.
7. During the course of argument, the learned counsel appearing for the appellants/defendants herein made the submission that the judgment and decree passed by the Courts below is an ex-parte decree. The written statement filed by them was not at all considered by the trial Court. It is also his contention that false documents were produced before the trial Court and to explain the same, the appellants have produced the documents before this Court which are relevant for the issue involved in the case. Hence, the learned counsel made submission that after passing the order by this Court in the Civil Revision Petition for the restoration of the matter and giving an opportunity to the appellants/defendants to go on with the matter they have taken one or to adjournments but even then, they were not given sufficient opportunity to submit their say in the matter and the trial Court illegally rejected their prayer. Hence, the learned counsel made a submission that if the application I.A.2/2006, seeking permission for additional evidence then in that event, opportunity is to be given to the appellants herein to give their evidence on such document also to prove their contentions which they have raised in the written statement. Hence, he submitted that the appeal be allowed. In support of his contention, learned counsel for the appellants also produced the decisions along with the date of events dated 17.04.2012.
8. Per contra, learned counsel appearing for the respondents during the course of his argument made the submission that the appellants-defendants are not diligent in pursing their remedy in spite of giving sufficient opportunity by this Court in the Civil Revision Petition. Learned counsel referring to the order sheet to the trial Court made a submission that it is not one or two times, nearly six times, the appellants sought adjournments. Hence, he made the submission that suit is of the year 1995 and the parties are Mohammedans and the suit schedule property was the self acquired property of the previous owner. Hence, it is his submission that when sufficient opportunity has already been given by this Court, it has not been used by defendants. Hence, the appeal cannot be allowed. In this connection, learned counsel for the respondents placed reliance on the decision of the Hon’ble Supreme Court in the case of Mohammed Yusuf v. Faij Mohammad & Ors. reported in 2009 AIR SCW 601 and he draws the attention of the Court to the relevant paragraph at Para Nos.13, 14, 15, and 16. Hence, it is the submission that there is no merit in the appeal and the same is to be rejected.
9. I have perused the materials placed on record and the judgments and decrees passed by the Courts below, so also the order passed by this Court in the Civil Revision Petition giving an opportunity to the appellants herein by restoring the matter before the trial Court. Looking to the proceedings before the trial Court as it is rightly submitted by the learned counsel appearing for the respondents that, in spite of giving sufficient opportunity, the appellants were not diligent in pursing their remedy though the suit was of the year 1995.
10. I have perused the decision relied upon by the learned counsel appearing for the respondents which is referred above and the relevant paragraphs at Para Nos.13, 14, 15 and 16. So also, I have perused the decision relied upon by the learned counsel appearing for the appellants produced along with date of events. So far as the merits of the matter is concerned, the written statement filed by the defendants were not at all on record. So, in the absence of such written statement filed before the Court, considering the pleadings of the parties, oral evidence of PW.1 and also the documents produced in the case, the trial Court decreed the suit which was confirmed by the 1st appellate Court. Looking to these materials placed on record, I am of the opinion that, as per the principle enunciated in the decision of the Hon’ble Supreme Court relied upon by the learned counsel appearing for the respondents and the time taken by the appellants herein in submitting their say before the trial Court, it is very clear that the appellants are not serious in pursuing their remedy. Therefore, their contention that one more opportunity is to be given to them by allowing the document produced before this Court cannot be accepted at all. Looking to the decision relied upon by the learned counsel for the appellants/defendants herein, though the principles in the said decision cannot be disputed by anybody but factual case has to be made out by the parties to take the aid and assistance of the decision is to be considered.
11. Looking to these aspects of the matter, I am of the clear opinion that in the absence of making out a case, the appellants cannot take the aid and assistance of the decisions produced before this Court. Considering the cumulative effect of material, I am of the opinion that there is no merit in this appeal and hence, the appeal is accordingly dismissed.
Sd/-
JUDGE BS