Allowed

Smt Ubhaya Bharathi K G v. Sri Govinde Gowda

Karnataka HC2 Jun 2023RFA/149/2019

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the trial Court's decree which dismissed the suit solely on technical grounds due to the appellant's absence. The Court held the appellant must be given a chance to appear for cross-examination and restored proceedings to the trial file.

What did the court decide?

Appeal allowed; suit to be restored to file of trial Court for further proceedings with opportunity of cross-examination; costs awarded to Defendant No.2; court fee refunded.

Smt Ubhaya Bharathi K G Vs Sri Govinde Gowda — Contempt of Court | Karnataka HC (2023)

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RFA No. 149/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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REGULAR FIRST APPEAL NO. 149 OF 2019 (DEC/POS)

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BETWEEN:

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Digitally signed by YASHODHA N Location: HIGH COURT OF KARNATAKA

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SMT. UBHAYA BHARATHI .K.G W/O A. RAMESH AGED ABOUT 52 YEARS RESIDING AT NO. 239/2 BULL TEMPLE ROAD ‘A’ CROSS, NEAR UMA THEATRE CHAMARAJPET BENGALURU-560 018.

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PRESENT ADDRESS NO. 15/50, MUNISWAMAPPA COMPOUND I CROSS, PRIYADARSHINI LAYOUT MOODALAPALYA S.V.G. NAGAR, NAGARABHAVI BENGALURU NORTH BENGALURU–560 072. …APPELLANT

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(BY SHRI. R. BHADRINATH, ADVOCATE)

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AND:

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SRI. GOVINDE GOWDA S/O CHIKKEGOWDA AGED ABOUT 53 YEARS RESIDING AT NO 21 2^ND MAIN, 10^TH CROSS PAPIREDDY PALYA, NAGARABHAVI BENGALURU–560 072.

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SRI. MANJESH KUMAR S/O AMBUJA

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RFA No. 149/2019

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AGED ABOUT 34 YEARS RESIDING AT NO. 5/38 2^ND CROSS, 2^ND MAIN NARASIMHAIAH LAYOUT BYATARAYANAPURA BENGALURU–560 026. …RESPONDENTS

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(BY MISS. L. DEEPIKA, ADVOCATE FOR SHRI. N. NAGARAJA, ADVOCATE AND SHRI. S. VINAY KUMAR, ADVOCATE FOR R2) R1 - SERVED

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THIS RFA IS FILED U/S.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.11.2018 PASSED IN OS.NO.5567/2015 ON THE FILE OF THE LXI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND POSSESSION.

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THIS RFA, COMING ON FOR ORDERS , THIS DAY, P.S.DINESH KUMAR, J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this matter is listed for consideration of I.A. for temporary injunction, by consent of learned advocates on both sides, the same is taken up for final disposal.

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This appeal by the plaintiff is filed challenging the judgment and decree dated 19.11.2018 in O.S.No.5567/2015 passed by the LXI Additional City Civil & Sessions Judge, Bengaluru.

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For the sake of convenience, parties shall be referred as per their status in the trial Court.

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RFA No. 149/2019

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Shri R.Bhadrinath, learned advocate for the

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appellant-plaintiff submitted that plaintiff has filed the instant suit seeking declaration and possession of the suit schedule property. P.W.1 is a lady and she could not appear before the trial Court as her learned advocate had not informed correct dates of hearing. Consequently, she was not cross-examined. On this ground among others, learned trial Judge has dismissed the suit. He submitted that appellant has a good case on merits and dismissal of the suit on technical ground causes great hardship. He prayed that this appeal may be allowed and suit may be restored on the file of the trial Court.

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Though served, respondent No.1 has remained absent.

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Ms.L.Deepika, learned advocate for second respondent submitted that second respondent is in possession of the property. Though sufficient opportunity was given, appellant did not choose to avail the same and

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RFA No. 149/2019

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present herself for cross-examination. Accordingly, she

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prayed for dismissal of this appeal.

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We have carefully considered rival submissions and perused the records.

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Learned trial Judge has recorded a finding in para 13 of the judgment that in spite of giving sufficient opportunity, P.W.1 did not choose to appear before the court and present herself for cross-examination nor furnish any evidence. Since the plaintiff did not appear before the Court for crossexamination, there was necessity to permit rebuttal evidence on behalf of the respondent. Suit is of the year 2015 and suit property is a residential site. Appellantplaintiff is a lady. Having considered the appeal on merits, taking into consideration the totality of the circumstances of

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the case, in our view, plaintiff is required to be given an opportunity to appear for her cross-examination and to conduct further proceedings in the trial Court.

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RFA No. 149/2019

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Accordingly, this appeal is allowed on cost of Rs.50,000/- (Rupees Fifty thousand) payable to defendant No.2- Shri Manjesh Kumar. Without notice, parties shall appear before the trial court on July 17, 2023.

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Registry shall refund the court fee to the appellant in accordance with law.

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In view of disposal of this appeal, pending interlocutory applications, if any, do not survive and they stand disposed of.

Sd/JUDGE

Sd/JUDGE

List No.: 1 Sl No.: 26

Smt Ubhaya Bharathi K G v. Sri Govinde Gowda

Case brief

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Smt Ubhaya Bharathi K G v. Sri Govinde Gowda

Case brief

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