Partly allowed

Sri M S Nagendra Kumar v. Smt G P Saralavathi

Karnataka HC2 Mar 2023RFA/1464/2021

Case brief

AI extract

What is this about?

The High Court allowed the appeal in a partition suit where the trial court had decided in favor of the plaintiff. The appellate court set aside the judgment, noting the appellant was unable to undergo cross-examination due to illness and the pandemic, and remanded the matter for fresh consideration.

What did the court decide?

Impugned judgment and decree set aside; matter remitted to Trial Court for re-consideration and afresh in accordance with law.

Sri M S Nagendra Kumar Vs Smt G P Saralavathi — Partition | Karnataka HC (2023)

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1 - RFA No. 1464 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1464 OF 2021 (PAR)

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BETWEEN:

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SRI. M S NAGENDRA KUMAR, S/O LATE SUBBAIAH, AGED ABOUT 65 YEARS, R/AT NO.137/A, BSK III PHASE, GAREHALLI DIVISION NO.31, BENGALURU.

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…APPELLANT

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(BY SRI. A VIJAYA SAI, ADVOCATE)

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AND:

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Digitally signed by SUCHITRA M J Location: High Court of Karnataka

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SMT. G P SARALAVATHI, W/O L SATHYANARAYANA, AGED ABOUT 61 YEARS, R/AT NO.198/2, BRAHMIN STREET, WARD NO.2, ANEKAL TOWN, BENGALURU DISTRICT - 562 106.

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…RESPONDENT

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(BY SRI. G R LAKSHMIPATHY REDDY FOR C/R)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.12.2020 PASSED IN OS No.2407/2014 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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RFA No. 1464 of 2021

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the impugned judgment and decree dated 02.12.2020 passed in O.S.No.2407/2014 on the file of the III Additional City Civil and Sessions Judge, Bengaluru, whereby the said suit filed by the respondent/plaintiff against the appellant/defendant for partition and separate possession of her alleged share in the suit schedule property was decreed in her favour by the Trial Court.

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Heard learned counsel for the appellant and learned counsel for the respondent.

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The material on record disclosed that the respondent instituted the aforesaid suit against the appellant/defendant claiming to be his own sister. The said suit was contested by the appellant/defendant by disputing the alleged relationship of the respondent with the appellant. It was contended that the respondent was not the sister of the appellant.

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RFA No. 1464 of 2021

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The said suit was contested by the appellant/defendant, who put

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forth various claims in support of his defense. After completion of

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pleading, the Trial Court framed the following issues:

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1. Whether the defendant proves that entire sale consideration of Rs.1,05,000/- towards purchasing of suit property was paid by him only?

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2. Whether the defendant proves that by receiving Rs.55,000/suit property was bequeathed to him by Smt.Seethamma through Will dated 15.08.1987?

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3. Whether the defendant proves that Smt.Seethamma ratified the Will by executing GPA, Agreement of sale and affidavit on 30.07.1987 and 31.07.1987?

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4. Whether the court fee paid on the plaint is insufficient? deleted vide order dated 19.07.2017.

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5. Whether the suit is within limitation?

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6. Whether the plaintiff is entitled for the reliefs as prayed for?

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7. What order or decree?

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Additional issue:

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1. Whether the plaintiff proves, she is the daughter of Sri.Subbaiah and Smt. Seethamma?

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The respondent/plaintiff examined herself as P.W.1 and Exs.P.1

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to 11 were marked on her behalf. Appellant/defendant examined himself as D.W.1 and Exs.D.1 to 8 were marked. However, before

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he could be cross-examined, due to his illness and the prevailing COVID-19 pandemic and its consequential lockdown and

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RFA No. 1464 of 2021

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restrictions, the appellant/D.W.1 did not tender himself for crossexamination. Under these circumstances, in the light of the oral and documentary evidence adduced by the respondent/plaintiff and since the entire evidence of appellant/D.W.1 was discarded and eschewed on account of him not tendering himself for crossexamination, the Trial Court proceeded to answer all the issues in favour of the respondent/plaintiff and decreed the suit in her favour by passing the impugned judgment and decree, which are assailed in the present appeal.

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The undisputed material on record clearly indicates that the appellant/defendant examined himself as D.W.1 during February 2020. However, on account of the COVID-19 pandemic and the restrictions/protocol/lockdown imposed from March 2020 onwards, the appellant did not tender himself for cross-examination since he was also not keeping good health at that point in time due to bona fide reasons, unavoidable circumstances, and sufficient cause. It is therefore clear that the inability and omission on the part of the appellant/D.W.1 to tender himself for cross-examination was unintentional and for reasons beyond his control. In view of the aforesaid facts and circumstances, adopting a justice-oriented

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RFA No. 1464 of 2021

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approach, and in order to provide one more opportunity to the appellant/defendant to establish his defence, I deem it just and proper to set aside the impugned judgment and decree and remit

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the matter for re-consideration afresh in accordance with law. Hence, I proceed to pas the following:

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ORDER

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a) The appeal is hereby allowed.

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b) The impugned judgment and decree dated 02.12.2020 passed in O.S.No.2407/2014 on the file of the III Additional City Civil and Sessions Judge, Bengaluru are hereby set aside.

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c) The matter is remitted back to the Trial Court for

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re-consideration and afresh in accordance with law.

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d) Liberty is reserved in favour of the appellant/defendant to tender himself for crossexamination by the respondent/plaintiff.

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e) Liberty is also reserved in favour of both the

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appellant and respondent to adduce further oral and documentary evidence in support of their respective claims.

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RFA No. 1464 of 2021

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f) Liberty is also reserved in favour of the appellant and respondent to file appropriate interlocutory application(s) before the Trial Court, including an application similar to I.A.No.1/2023 filed in this appeal which shall be considered by the Trial Court, which shall pass appropriate orders on the same after providing opportunity to the respondent in this regard.

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g) All rival contentions on all aspects of the matter are kept open, and no opinion is expressed on the same.

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h) In order to expedite disposal of the suit, parties under take to appear before the Court on 20.03.2023 without awaiting any further notice from the Trial Court.

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i) The Trial Court is directed to dispose of the suit as expeditiously as possible and preferably within a period of six months from 20.03.2023.

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Sd/JUDGE

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hdk

Sri M S Nagendra Kumar v. Smt G P Saralavathi

Case brief

What is this about?

What did the court decide?

Sri M S Nagendra Kumar v. Smt G P Saralavathi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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