Dismissed

Mr Narayanappa v. Mr M Somashekar

Karnataka HC4 Aug 2022RFA/613/2022

Case brief

AI extract

What is this about?

In a first appeal regarding a final decree order for partition, the High Court held that despite the appellant's absence in the final decree proceeding due to a delay by his predecessor, the order based on the Commissioner's report caused no hardship and affirmed the trial court's view. The appeal was dismissed.

What did the court decide?

The appeal was dismissed and the admission of the appeal was declined.

Mr Narayanappa Vs Mr M Somashekar — Partition | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 4^TH DAY OF AUGUST, 2022 BEFORE

¶3

THE HON’BLE MR. JUSTICE V. SRISHANANDA

¶4

REGULAR FIRST APPEAL NO.613 OF 2022 (FDP)

¶5

BETWEEN:

¶6

MR. NARAYANAPPA, S/O LATE MUNIDASAPPA, AGED ABOUT 76 YEARS, RESIDING AT NO.117, KODIGEHALLI, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU - 560092. ...APPELLANT (BY SRI.VASANTH ADITHYA J, ADVOCATE)

¶7

AND:

¶8

MR M SOMASHEKAR, S/O LATE PAPANNA, AGED ABOUT 50 YEARS, RESIDING AT NO.117, KODIGEHALLI, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU - 560092. ...RESPONDENT

¶9

(BY SRI.CHANDRASHEKARA D N, ADVOCATE FOR CAVEATOR/RESPONDENT)

¶10

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, AGAINST THE ORDER DATED 06.01.2020 PASSED IN FDP

¶11

¶12

NO.166/2016 ON THE FILE OF THE XV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 54 READ WITH ORDER XX RULE 18 OF CPC.

¶13

THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶14

JUDGMENT

¶15

Heard Sri Vasanth Aditya J, learned counsel for the appellant and Sri Chandrashekara D N, learned counsel for the caveator/respondent.

¶16

The present appeal is filed with the following prayers:

¶17

"WHEREFORE, the Appellant prays that this Hon'ble Court may be pleased to:

¶18

1. Call for the records of, disposed off dated 06/01/2020 by the XV Additional City Civil & Sessions Judge at Bengaluru F.D.P.NO.166/2016 (CCH.No.3).

¶19

2. Pass an Order setting aside the Impugned Judgment dated 06/01/2020 passed by the XV Additional City Civil & Sessions Judge at Bengaluru F.D.P.NO.166/2016 (CCH.No.3).

¶20

¶21

3. Pass any other orders, as this Hon'ble Court may deem fit.

¶22

In the interests of justice and equity".

¶23

Brief facts of the case are as under:

¶24

A suit for partition and separate possession came to be filed in O.S.1181/2015 which on contest came to be decreed. There was a challenge to the judgment and decree passed in O.S.1181/2015 in RFA 106/2019 which came to be dismissed on 01.02.2019 by a considered order.

¶25

Thereafter, the defendant filed an application before the trial Court for passing final decree in terms of the preliminary decree passed in O.S.1181/2015. The plaintiff/appellant did not contest the final decree proceeding despite due service of notice.

¶26

Thereafter, the learned trial judge considered the material on record and passed an order dated 06.01.2020 which reads as under:

¶27

4

¶28

ORDER

¶29

" The petition filed by the petitioner is allowed.

¶30

Block Nos.II in Sy.No.117 and 118 shown in the sketches prepared by the Court Commissioner are allotted to the share of the petitioner.

¶31

Block Nos.III shown in the sketches prepared by the Court Commissioner are allotted to the share of the respondent.

¶32

The sketches prepared by the Court Commissioner shall form part of the final decree.

¶33

Office is directed to draw final decree accordingly".

¶34

Being aggrieved by the same, the plaintiff has filed the present appeal with the following grounds:

¶35

" It is submitted that the Impugned Judgment suffers from gross infirmities and thus defeats the purpose of meeting the ends of justice as the appellants evidence has not been taken on record.

¶36

¶37

The Impugned Judgment has been rendered by the Trial Court without the Appellant's evidence being placed on record as he was placed ex-parte.

¶38

The Respondent, in his original suit O.S. No.1181/2015 has blatantly misrepresented the facts before the Trial Court and thereafter, the Trial Court was swayed in his favour without considering the case of the Appellant as he was placed ex-parte.

¶39

If, during hearings before the Trial Court, the evidence of the Plaintiff was available for placing it on record and thereafter if the matter was heard and adjudicated in a fair manner, the Original Suit (O.S.No.1181/2015)would not have been decreed. This Appeal has been preferred by the Appellant hence on the grounds herein under.

¶40

The Trial Court has utterly failed to afford sufficient opportunity to the Appellant to obtain his evidence and to place it on

¶41

¶42

record and has merely relied on the evidence and arguments of the Respondent therein and the judgment was given resulting in gross miscarriage of justice.

¶43

It is submitted that the Appellant had every intention to adduce evidence in his behalf but first he had to obtain it from the bank where the schedule property was mortgaged by the father of the Respondent and only then was the Appellant in a position to pursue his case effectively, and until then his hands were tied.

¶44

It is submitted that the Trial Court has relied on the contention raised by the Respondent that the Appellant did not cooperate with him in his effort to partition the property and neither did the Appellant respond to the case filed in the Trial Court.

¶45

It is submitted that the Appellant was busy making his efforts to retrieve the original documents of the schedule

¶46

¶47

property by paying off the loan which took considerable time and effort for him to first arrange the funds to clear the loan. The Respondent was aware of the efforts of the Appellant but chose to ignore this vital fact in the pursuit of his objective of partitioning the schedule property by not disclosing material facts before the Trial Court and managed to obtain the decree in his favour by concealing this vital fact.

¶48

It is submitted that the Appellant was indisposed during the time and was not fully able to pursue this matter effectively in the Trial Court as he had to also make efforts to retrieve the documents from the Bank by arranging for funds to clear the loan taken by the father of the Respondent.

¶49

It is submitted that the Trial Court has erroneously concluded that the Appellant did not evince any interest in actively pursuing his case in court and had nothing to say in his defense and has therefore

¶50

¶51

decreed the suit in favour of the Respondent.

¶52

It is submitted that the Appellant hails from a middle class family, is honest and hard working and has invested such hard earned money in the Schedule Property. It is unfortunate that the dubious intentions of the Respondent have been effectuated by the Impugned Judgment.

¶53

The present Appeal is being filed on these grounds and the Appellant craves leave of this Hon'ble Court to rely on additional grounds at a later stage.

¶54

It is submitted that the Appellant herein was supplied with the Certified Copies of the Impugned Judgment on 24/08/2016.

¶55

It is submitted that amount paid for the suit schedule A property is Rs 5,00,000/and the valuation of suit schedule B property is Rs. 2,50,000/- which is already been paid at trial court and a court fee of Rs 200/- was paid under Sec 49 of the

¶56

¶57

Karnataka Court Fees and Suits Valuation Act. 1963 has been filed as court fee for the instant matter".

¶58

Reiterating the grounds urged in the appeal memorandum, Sri Vasanth Aditya J, learned counsel for the appellant vehemently contended that the plaintiff had no occasion to participate in the Final Decree Proceeding as he was placed exparte and passing of the final decree by the trial Court has thus caused serious prejudice to his right, title and interest in respect of the property.

¶59

Per Contra, Sri Chandrashekara D N, learned counsel representing the defendant/respondent supports the impugned order and sought for dismissal of the appeal.

¶60

This Court perused the material on record in the light of the rival contentions of the parties.

¶61

Admittedly, the judgment and decree in O.S.1181/2015 became final in RFA 106/2019. Thereafter, it was for the plaintiff to apply for the final decree. But he

¶62

¶63

did not do so. Therefore, the defendant was constrained to file the final decree proceeding before the trial Court. Notice was ordered to the plaintiff/appellant. Despite due service of notice, plaintiff remained absent. No application was also filed to set-aside the exparte order and contest the matter on merits. Thereafter, the trial Court after taking note of the material on record especially, the ADLR report(Court Commissioner) passed the impugned order.

¶64

Admittedly, the suit property was divided in equal share as per the Commissioner's report. Thus, this Court is of the considered opinion that the demarcation of the property by the ADLR and accepting the sketch prepared by the ADLR has not worked out any hardship to anyone of the parties and it is the just order that could be passed in the facts and circumstances of the present case.

¶65

In view of the findings recorded by the trial Court, after bestowing its attention to the ADLR report, this Court is of the view that none of the grounds urged in the appeal memorandum are sufficient enough to interfere

¶66

¶67

with the equitable order passed by the learned trial Judge and therefore, appeal needs to be rejected.

¶68

Hence, the following:

ORDER

Admission declined.

Appeal dismissed.

Consequently, all the pending I.As. also stand

¶73

disposed of.

¶74

Sd/JUDGE

¶75

brn

Mr Narayanappa v. Mr M Somashekar

Case brief

What is this about?

What did the court decide?

Mr Narayanappa v. Mr M Somashekar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri M Kantilal Jain Vs Sri R Ashok

Smt Lakshmamma Vs K Nagaraj S/O Late Kariya

Smt Yeshodamma Vs Sri Srinivasa

M/S Techsine Pvt. Ltd. Vs Bunty K Mehta

Kum.R.Ruchika Vs Sri.T.Thimme Gowda

Sri. Arun Kumar Vs Sri. Bunty K Mehta