Allowed

Siddamma v. Jayashree @Jayamma

Karnataka HC8 Sept 2021RSA/555/2021

Case brief

AI extract

What is this about?

The High Court allowed the Special Leave Petition against the First Appellate Court's dismissal of an appeal in a partition suit. It set aside both the Trial and First Appellate Court judgments, allowing the applications for written statement and additional evidence, and remitted the matter to the Trial Court for fresh disposal on merits within six months.

What did the court decide?

The judgment of Trial and First Appellate Courts set aside; matter remitted to Trial Court; written statement and additional evidence applications allowed; Rs. 1,00,000/- costs imposed on appellants.

Siddamma Vs Jayashree @Jayamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.555/2021 (PAR)

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BETWEEN:

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SIDDAMMA, W/O LATE S.L. LOKESHWARAPPA, AGED ABOUT 50 YEARS.

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DEVIKA, D/O LATE S.L. LOKESHWARAPPA, AGED ABOUT 20 YEARS.

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BOTH ARE RESIDENTS OF KODATALU VILLAGE, HONNALI TALUK-577 217, DAVANAGERE DISTRICT.

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... APPELLANTS

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(BY SRI UMESH MOOLIMANI, ADVOCATE FOR SRI S.V. PRAKASH, ADVOCATE)

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AND:

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JAYASHREE @JAYAMMA, W/O SAPPANNANAVAR, AGED ABOUT 41 YEARS, R/O RANEBENNUR-581115, HAVERI DISTRICT.

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LALITHAMMA, W/O DHANANJAYAPPA K G, AGED ABOUT 43 YEARS, R/O KODATALU VILLAGE, SOWLANGA POST, HONNALI TALUK-577 217, DAVANAGERE DISTRICT.

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PARAMESHWARAPPA, SINCE DEAD BY HIS LEGAL HEIRS.

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PARVATHAMMA, W/O PARAMESHWARAPPA, AGED ABOUT 67 YEARS, R/O KODATALU VILLAGE, SOWLANGA POST, HONNALI TALUK-577 217, DAVANAGERE DISTRICT.

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MALLESHAPPA, S/O PARAMESHWARAPPA, AGED ABOUT 38 YEARS, R/O KODATALU VILLAGE, SOWLANGA POST, HONNALI TALUK-577217, DAVANAGERE DISTRICT.

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ARUNA, W/O PARAMESHWARAPPA, AGED ABOUT 36 YEARS, R/O KODATALU VILLAGE, SOWLANGA POST, HONNALI TALUK -577 217, DAVANGERE DISTRICT.

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S L HALAMMA, W/O MALLAPPA, AGED ABOUT 78 YEARS, R/OKODATALU VILLAGE, SOWLANGA POST, HONNALI TALUK-577 217, DAVANGERE DISTRICT

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AS PER ORDER DATED 06.08.2021, RESPONDENT NO.6 IS DEAD AND HER LRS ARE ALREADY ON RECORDS AS RESPONDENT NO.1 TO 5.

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... RESPONDENTS

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(BY SRI M.V.HIREMATH, ADVOCATE FOR C/R-1)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.02.2021 PASSED IN RA NO.41/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HARIHARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.12.2007 PASSED IN OS.NO.65/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, HONNALI.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the learned counsel for the appellants and the learned counsel for caveator/respondent No.1.

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This appeal is filed challenging the judgment and decree dated 12.02.2021 passed in R.A.No.41/2008 on the file of the Senior Civil Judge and JMFC, Harihara.

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The factual matrix of the case is that the plaintiffs filed a suit for the relief of partition and separate possession in respect of the suit schedule property claiming 1/5^th share in the suit schedule property. The defendant No.2 passed away and his wife and daughter were brought on record as legal heirs of defendant No.2. Defendant No.1, who is another brother of the plaintiffs was also on record, but the legal heirs who were

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brought on record have not filed the written statement and defendant No.1 also not filed the written statement. The Trial Court after examining the plaintiff P.W.1 has decreed the suit that the plaintiffs are entitled for 1/5^th share in item Nos.1, 2 and 4 to 12 of plaint ‘A’ schedule property and item Nos.2 to 5 of plaint ‘B’ schedule property. The judgment and decree of the Trial Court is challenged by the appellants, who are the legal heirs of defendant No.2 in R.A.No.41/2008. The First Appellate Court dismissed the appeal confirming the judgment of the Trial Court on the ground that there was an inordinate delay in filing the appeal.

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The same was questioned before this Court in R.S.A.No.2464/2011 and this Court vide order dated 18.08.2014 set aside the order of dismissal of the appeal and consequently allowed the delay application and delay of 260 days in filing the appeal was condoned. The matter was remitted back to the First Appellate Court to dispose of the appeal on merits and imposed cost of Rs.10,000/- on the appellants payable to the respondents within a month from the date of the order. This Court also directed to appear before the First Appellate Court and direction

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was given to dispose of the matter within six months. It is also observed that the appellants are at liberty to seek permission to file the written statement before the First Appellate Court and I.A.No.1/2013 was also disposed of. The parties appeared before the First Appellate Court and an application was filed before the First Appellate Court for filing written statement and the said application was allowed. Being aggrieved by the order of allowing of the application for filing the written statement, the respondents herein filed W.P.No.49192/2014 before this Court and this Court vide order dated 25.09.2018 allowed the writ petition and held that the First Appellate Court having not dealt with the application in accordance with law, the impugned order deserves to be set aside and the application seeking permission to file the written statement deserves to be restored for reconsideration of the First Appellate Court. After the remand, the First Appellate Court reconsidered the matter in R.A.No.41/2008 and passed an order on 12.02.2021 dismissing the appeal framing the point for consideration that whether the appellants have made out a ground to remit the matter for reconsideration and dismissed the appeal and while dismissing the appeal, no order is passed with regard to the application filed for seeking of

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written statement and also an application filed under Order 41 Rule 27 of CPC to adduce the additional evidence. The First Appellate Court has not framed any point for consideration with regard to the application seeking for written statement and also application filed under Order 41 Rule 27 of CPC and instead dismissed the appeal. Hence, the present appeal is filed before this Court by the legal heirs of defendant No.2.

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The main contention of the learned counsel for the appellants is that after the death of the husband of appellant No.1, though they were brought on record, the wife was in confinement since she had given birth and could not appear before the Trial Court. The learned counsel would contend that

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in view of the confinement and taking care of the minor child, she could not approach the First Appellate Court. The learned counsel would contend that even though this Court in R.S.A. condoned the delay in filing the appeal, the First Appellate Court has committed an error in not considering the matter in a right perspective. The First Appellate Court, first of all has not framed any point for consideration for considering I.A. filed under Order 41 Rule 27 of CPC and also an application is filed for filing the

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written statement under Section 151 of CPC. In spite of it, this Court permitted the defendants to file the written statement before the First Appellate Court by making necessary application and not given the reasoning on merits also and committed an error.

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Per contra, the learned counsel for the

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caveator/respondent No.1 would vehemently contend that the suit was filed in the year 2003 and decree was passed in the year 2008 and they have not contested the matter by filing the written statement. Even this Court has given opportunity to file the written statement, but written statement was filed belatedly and the respondents are before the Court for the relief of partition from 2007. Hence, it does not require any interference.

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Having heard the learned counsel for the appellants

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and the learned counsel for the caveator/respondent No.1, it is not in dispute that the suit was filed for the relief of partition in the year 2003. It is also an admitted fact that the defendants have not contested the matter before the Trial Court and the Trial Court passed the judgment in decreeing the suit as sought in the plaint. Being aggrieved by the judgment, the appeal is

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filed and appeal at the first instance was dismissed on the ground of delay and thereafter the matter was remanded by this Court in R.S.A. referred supra and direction was given to consider the matter on merits. It is not in dispute that an application is filed along with the written statement seeking permission as directed by this Court in R.S.A. before the First Appellate Court and also the appellants herein who have filed the appeal also filed an application under Order 41 Rule 27 of CPC to produce the additional documents to substantiate their contentions.

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On perusal of the judgment of the First Appellate Court, no finding is given with regard to the application seeking for filing of written statement and also on I.A. filed under Order 41 Rule 27 of CPC. Having perused the material available on record, first of all, no written statement is filed before the Trial Court and when the defendants have filed an application under Order 41 Rule 27 of CPC, the First Appellate Court ought to have examined whether the appellants have made out a ground to invoke Order 41 Rule 27 of CPC and whether they were diligent in filing the application. But no point for consideration is framed

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by the First Appellate Court, instead of dismissed the appeal without examining the material available on record in a right perspective. When the suit was decreed without the written statement and subsequently appeal is filed, the First Appellate Court ought to have considered the written statement as directed by this Court and also ought to have considered the application filed under Order 41 Rule 27 of CPC. The First Appellate Court failed to frame the point for consideration while considering the appeal. The records also reveals that the parties have approached this Court to exercise the powers under Section 100 of CPC by filing the R.S.A. earlier and again before this Court invoking Section 100 of CPC. But no relief is granted to the parties even though almost two decades has been passed.

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Instead of remanding the matter to the First Appellate Court, it is appropriate to set aside the judgment of the Trial Court and also the judgment of the First Appellate Court and allow the application filed under Order 41 Rule 27 of CPC and also the written statement as directed by this Court earlier to consider the written statement. It is appropriate to allow the application filed along with the written statement and also the

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application filed under Order 41 Rule 27 of CPC. The parties have to substantiate their contentions before the Trial Court or otherwise if it is once again remitted to the First Appellate Court to reconsider the matter, it would lead to multiplicity of proceedings. The Trial Court is directed to consider the matter afresh on merits and frame the issues and record the evidence within the time bound period of six months since the matter is pending from 2003. This Court has taken note of the fact that even though the appellants are brought on record after the death of the husband and father of the appellants herein, they have not contested the matter and being aggrieved by the judgment of the Trial Court, they have filed the appeal in the year 2008. Hence, it is appropriate to impose the cost of Rs.1,00,000/- on the contesting appellants before this Court having considered the O.S, R.A, R.S.A, W.P. and second R.S.A.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment of the Trial Court passed in O.S.No.65/2003 and the judgment of the First

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Appellate Court passed in R.A.No.41/2008 are hereby set aside.

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(iii) The matter is remitted back to the Trial Court to consider the matter afresh on merits.

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(iv) The parties are directed to appear before the Trial Court on 30.09.2021.

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(v) The Trial Court is directed to give an opportunity to both the plaintiffs and the defendants to substantiate their contentions and dispose of the matter within six months from 30.09.2021.

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(vi) The respective learned counsel appearing for the parties and the parties are directed to assist the Trial Court in disposal of the case within the stipulated time without seeking any adjournment unnecessarily.

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(vii) The application seeking the written statement filed under Section 151 of CPC and also the application filed under Order 41 Rule 27 of CPC by the appellants herein are allowed.

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(viii) The appellants are directed to deposit the cost of Rs.1,00,000/- on or before 30.09.2021. If the appellants fail to deposit the amount, the

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judgment and decree passed by the Trial Court would be revived.

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(ix) Out of the cost amount of Rs.1,00,000/-, Rs.75,000/- is payable to the plaintiffs and remaining Rs.25,000/- shall vest with the State.

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Sd/JUDGE

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Siddamma v. Jayashree @Jayamma

Case brief

What is this about?

What did the court decide?

Siddamma v. Jayashree @Jayamma

Case brief

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What did the court decide?

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