Remanded

Smt. Renuka v. Murthy

Karnataka HC11 Oct 2023RFA/65/2019

Case brief

AI extract

What is this about?

High Court allowed a first appeal set aside a decree passed ex parte. The trial court had improperly closed the case immediately after permitting the appellant to contest without giving a chance to file a written statement. The matter remitted for fresh hearing.

What did the court decide?

The judgment and decree were set aside. The matter remitted to the trial court for fresh consideration with an opportunity to file written statements and adduce evidence.

Smt. Renuka Vs Murthy — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:37131 RFA No. 65 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 65 OF 2019 (DEC)

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BETWEEN:

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SMT. RENUKA, D/O LATE GIDDA SHETTY, AGED ABOUT 38 YEARS, R/AT HEBBALLI VILLAGE, MALLENAHALLII POST, CHIKAMAGALURU TALUK - 577 131.

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…APPELLANT

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(BY SRI. SHARATH P.H., ADVOCATE FOR SRI. SACHIN B.S., ADVOCATE)

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AND:

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Digitally signed by MADHUSHREE H Location: High Court of Karnataka

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MURTHY, S/O. SIDDAPPA SHETTY, AGED ABOUT 43 YEARS, R/AT HEBBALA VILLAGE, MALLENAHALLI POST, CHIKMAGALURU TALUK - 577 131.

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SMT. CHANDRAMMA, W/O LATE GIDDA SHETTY, AGED ABOUT 44 YEARS, R/AT HEBBALLI VILLAGE, MALLENAHALLI POST, CHIKMAGALURU TALUK - 577 131.

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2 - NC: 2023:KHC:37131 RFA No. 65 of 2019

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H.C. CHANDRASEKHAR, S/O LATE GIDDASHETTY, AGED ABOUT 45 YEARS, R/AT HEBBALLI VILLAGE, MALLENAHALLI POST, CHIKMAGALURU TALUK - 577 131.

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ASHOK,

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S/O LATE GIDDASHETTY, AGED ABOUT 41 YEARS, R/AT HEBBALA VILLAGE, MALLENAHALLI POST, CHIKKAMAGALURU TALUK - 577 131.

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…RESPONDENTS

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(BY SRI. SHANKARANARAYAN BHAT, ADVOCATEFOR R1; SRI. RAVIKUMAR G.H., ADVOCATE FOR R4; R2 AND R3 ARE SERVED)

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THIS RFA IS FILED U/S.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.11.2018 PASSED IN OS.NO.13/2018 ON THE FILE OF THE IST ADDL.SENIOR CIVIL JUDGE, CHIKKAMAGALURU, DECREEING THE SUIT FOR DECLARATION.

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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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Though this matter came up for vacating the stay

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and for admission, this matter is taken up for final hearing

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with the consent of both learned counsel.

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This appeal is filed by the appellant/defendant

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No.4 under Section 96 of CPC seeking for setting aside the

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NC: 2023:KHC:37131 RFA No. 65 of 2019

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judgment and decree dated 09.11.2018 passed by the 1st Addl. Senior Civil Judge, Chikkamagaluru in O.S.No.13/2018 decreeing the suit of respondent No.1.

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For the sake of convenience, parties are

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referred to as per their ranks before the trial Court.

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Heard the learned counsel for the

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appellant/defendant No.4 and learned counsel for the respondent No.1/plaintiff.

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The case of the plaintiff before the trial Court is that plaintiff has filed the suit against the defendants to declare that he is the owner of suit schedule ‘A’ property bearing Sy.No.14/1, measuring 5 guntas bounded on East by: Remaining lands belonging to defendants, West by: Government land, South by: Grama Thana property and North by: Road situated at Hebballi village of Chikkamagaluru Taluk and possession of the B schedule property bearing Sy.No.14/1 measuring 1/^3/4 guntas bounded on East by: House property of the plaintiff, West

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NC: 2023:KHC:37131 RFA No. 65 of 2019

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by: Property of the defendant, North by: Road and South by: Grama Thana property situated towards western side of A schedule property (hereinafter referred as schedule properties). It is also contention of the plaintiff/respondent No.1 before the trial Court that directing the defendants to execute registered rectification deed correcting the northern and southern boundary in the schedule to the sale deed, road as northern boundary and Grama Thana as southern boundary and also sought for mesne profits from the date of suit till delivery of possession of ‘B’ schedule property.

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Defendant Nos.1 to 3 appeared through their learned counsel before the trial Court and not filed their written statement. The case against the appellant/defendant No.4 has placed exparte. Thereafter, case was posted for final arguments. At that time, appellant/defendant No.4 has filed an application under Order 9 Rule 7 of CPC for setting aside the exparte order dated 09.11.2018. The trial Court has allowed the

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5 - NC: 2023:KHC:37131 RFA No. 65 of 2019

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application filed by the appellant/defendant No.4 and permitted the appellant/defendant No.4 to contest the matter. But, on the same day written statement of appellant/defendant No.4 was taken as nil and passed the judgment by decreeing the suit. Hence, the appellant/defendant No.4 is before this Court.

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Learned counsel for the appellant/defendant No.4 contended that the notice issued to the appellant/defendant No.4 was not served and the notice was returned with an endorsement ‘addressee left the house’. This type of service cannot deemed as service of summons is held sufficient. Appellant/defendant No.4 placed as exparte. Learned counsel for the appellant/defendant No.4 further contended that the trial was proceeded and somehow, the appellant/defendant No.4 came to know about the pendency of the suit. He has filed an application for setting aside the exparte order, which was allowed by the trial Court on 09.11.2018, but without giving an opportunity to file the written statement and to contest the matter, the trial Court has passed

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NC: 2023:KHC:37131 RFA No. 65 of 2019

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judgement on the same day which erroneous and not maintainable in law. Hence, prayed for setting aside the suit of the plaintiff.

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Learned counsel for the appellant/defendant No.4 filed an I.A.No.2/2019 under Order 41 Rule 27 of CPC seeking permission to produce certified copies of order sheet, summons and postal acknowledgment of the trial Court.

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Per contra, learned counsel for the respondent No.1/plaintiff seriously contended that the defendant Nos.1 to 3 are the family members of the defendant No.4. They are well aware about the pendency of the suit and they deliberately dragged the matter. Even though plaintiff purchased the property, defendants are in possession of the property. Therefore, the trial Court has rightly decreed the suit, wilfully appellant/defendant No.4 has failed to contest the matter and has not filed written statement. Hence, he prayed for dismissal of the appeal.

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NC: 2023:KHC:37131 RFA No. 65 of 2019

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Having heard the arguments of learned counsel for the appellant/defendant No.4 and learned counsel for respondent No.1/plaintiff, the following points would arise for consideration:

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i) Whether the appellant/defendant

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No.4 is permitted to adduce additional documents under Order 41 Rule 27 of CPC?

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ii) Whether the judgement and decree

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passed by the Trial Court calls for interference?"

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On hearing the arguments and on perusal of the

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records, especially order sheet produced along with the interlocutory application filed under Order 41 Rule 27 of CPC, which clearly reveals that on 09.11.2018, the defendant No.4 appeared through the learned counsel and filed I.A.No.1 under Order 9 Rule 7 of CPC for setting aside the order of the exparte and seeking permission to contest the matter. The trial Court while passing the order allowed the application and permitted the defendant No.4

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NC: 2023:KHC:37131 RFA No. 65 of 2019

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to contest the suit by imposing fine of Rs.200/-. The reason for allowing the application was also categorically stated in the trial Court order. The trial Court further stated that the defendant No.4 is necessary party before the Court to adjudicate the controversy between the parties.

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Further, "it is also held that defendant No.4 has appeared before the Court when the matter is set down for arguments. Therefore, the application was allowed". Considering the said order dated 09.11.2018, the trial Court though allowed application of the defendant No.4 permitting him to contest the matter but did not give single day or any opportunity for filing the written statement to contest the matter. The trial Court posted the matter for arguments and had reopened the case for the purpose of setting aside the exparte order and recalling the same. The trial Court has liberally allowed the application and permitted the defendant No.4 to contest the matter. Once the trial Court permitted the defendant No.4 to contest the matter, then there is no

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9 - NC: 2023:KHC:37131 RFA No. 65 of 2019

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meaning for closing the matter on the same day by passing the judgment, which amounts to cause prejudice to the case of the defendant No.4. Therefore, I.A.No.2/2019 filed by the appellant under Order 41 Rule 27 of CPC for producing necessary documents to decide the appeal is required to be allowed.

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On perusal of the exparte judgement it clearly shows that though the trial Court has permitted defendant No.4 to contest the matter but has not given an opportunity to file written statement and to adduce evidence. The trial Court has passed the judgement on same day, which is illegal and erroneous. Judgment and decree passed by the trial Court is liable to be set aside.

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Accordingly, I pass the following:

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ORDER ON I.A.NO.2/2019

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Accordingly, I.A.No.2/2019 filed under Order 41 Rule 27 of CPC is hereby allowed.

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ORDER

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The appeal is allowed ;

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10 -

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NC: 2023:KHC:37131 RFA No. 65 of 2019

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The judgement and decree dated 09.11.2018 passed by the 1st Addl. Senior Civil Judge at Chikkamagaluru in O.S.No.13/2018 is set aside.

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The matter is remitted back to the trial

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Court for considering the matter afresh by giving an opportunity to the defendant No.4 to file her written statement and adduce her evidence and also permitting the plaintiff to adduce additional evidence if any.

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Parties shall appear before the trial Court without any further notice on 15.11.2023. The trial Court shall dispose of the matter within six months from the date 15.11.2023.

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Sd/JUDGE

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ASN List No.: 1 Sl No.: 15 CT:SNN

Smt. Renuka v. Murthy

Case brief

What is this about?

What did the court decide?

Smt. Renuka v. Murthy

Case brief

What is this about?

What did the court decide?

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