Partly allowed

Shri D S Sudarshan v. Smt N Shanthi

Karnataka HC28 Nov 2023RFA/819/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed additional evidence applications filed by appellants and respondent in a property suit appeal. The impugned judgment was set aside, and the matter was remitted to the Trial Court to be disposed of on merits with the additional evidence on or before April 19, 2024.

What did the court decide?

Applications for additional evidence allowed; impugned judgment set aside; matter remitted to Trial Court to be disposed of on merits by 19.04.2024.

Shri D S Sudarshan Vs Smt N Shanthi — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.819 OF 2014 (DEC)

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C/W

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REGULAR FIRST APPEAL NO.184 OF 2023(DEC/INJ)

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IN R.F.A.No.819/2014:

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BETWEEN:

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SHRI D S SUDARSHAN S/O D L SRINIVAS AGED ABOUT 50 YEARS R/AT NO.122/2, II CROSS KEMPEGOWDANAGAR BANGALORE-560 019.

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SMT. MEENA SUDARSHAN W/O SHRI SUDARSHAN AGED ABOUT 45 YEARS R/AT NO.122/2, II CROSS KEMPEGOWDANAGAR BANGALORE-560 019.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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(BY SRI. A.Y.N. GUPTA, ADVOCATE)

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AND:

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SMT N SHANTHI W/O SHRI RANGASWAMY D/O SMT. SANGAMMA AND LATE LINGAIAH AGED ABOUT 44 YEARS R/AT NO.249/14, 1^ST CROSS DATTATREYA EXTENSION GAVIPURAM, GUTTAHALLI KEMPEGOWDANAGAR BANGALORE-560 019.

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…APPELLANTS

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SHRI S N CHANDRA KUMAR S/O LATE THIRUMALAIAH @ SANNAIAH AGED ABOUT 39 YEARS R/AT OUNGRA VILLAGE,

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NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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AMRUTHUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.

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ALSO AT:

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CRAZY AUTO GAS KIT AND TELEPHONE BOOTH SRI VENKATESHWARA GAS AGENCY NO.75/B, K G NAGAR MAIN ROAD BANGALORE-560019

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AND ALSO RESIDING AT

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NO. 695, I MAIN ROAD BRINDAVAN NAGAR DHOBI GHAT, SRINAGAR BANGALORE-560 019.

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PRESENTLY RESIDING AT

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NO.1091, "GEETHA NILAYA" 2^ND FLOOR, 14^TH MAIN WEAVERS COLONY, CHIKKADEVARAYA ROAD WARD NO.15, BANGALORE-560 019.

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SINCE DEAD AND REPRESENTED BY HIS LEGAL REPRESENTATIVES

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SMT. HEMAVATHY W/O LATE S.N. CHANDRA KUMAR AGED ABOUT 35 YEARS R/AT NO.1091, “GEETHA NILAYA” 2^ND FLOOR, 14^TH MAIN, WEAVERS COLONY CHIKKADEVARAYA ROAD, WARD NO.15, BANGALORE-560 019.

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SMT. NALINI D/O LATE S.N. CHANDRA KUMAR AGED ABOUT 19 YEARS R/AT NO.1091, “GEETHA NILAYA” 2^ND FLOOR, 14^TH MAIN, WEAVERS COLONY, CHIKKADEVARAYA ROAD, WARD NO. 15, BANGALORE-560 019.

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3 - NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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MS. SUNETHRA D/O LATE S.N. CHANDRA KUMAR AGED ABOUT 17 YEARS R/AT NO.1091, “GEETHA NILAYA” 2^ND FLOOR, 14^TH MAIN, WEAVERS COLONY CHIKKADEVARAYA ROAD, WARD NO.15, BANGALORE-560 019.

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SRI. YOGESH KUMAR S/O LATE S.N. CHANDRA KUMAR AGED ABOUT 10 YEARS R/AT NO.1091, “GEETHA NILAYA” 2^ND FLOOR, 14^TH MAIN, WEAVERS COLONY CHIKKADEVARAYA ROAD, WARD NO.15, BANGALORE-560 019.

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…RESPONDENTS (BY SRI. GANGADHAR AITHAL S., ADVOCATE FOR R-1; SRI. JANARDHANA.G., ADVOCATE FOR R-2 )

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THIS RFA IS FILED U/SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.03.2014 PASSED IN O.S.6705/2006 ON THE FILE OF THE XXIV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.

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IN R.F.A.No.184/2023

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BETWEEN:

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S.N. CHANDRAKUMAR SINCE DECEASED BY HIS LEGAL REPRESENTATIVES

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1. SMT. HEMAVATHI W/O LATE S.N. CHANDRA KUMAR AGED ABOUT 42 YEARS.

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1. SMT. NALINI N.C. D/O LATE S.N. CHANDRA KUMAR AGED ABOUT 24 YEARS.

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1. MS. SUNETHRA N.C. D/O LATE S.N. CHANDRA KUMAR AGED ABOUT 22 YEARS.

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NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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1. SRI. YOGESH KUMAR N.C. S/O LATE S.N. CHANDRA KUMAR AGED ABOUT 16 YEARS.

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REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. C. HEMAVATHI LR’S OF APPELLANT NO.1

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ALL ARE RESIDING AT:

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NO.1, MAHADESHWARA LAYOUT JNANASHAKTI ROAD, DASANAPURA HOBLI CHIKKAGOLLARAHATTI, LAKSHMIPURA BENGALURU – 560 091.

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…APPELLANTS

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(BY SRI. JANARDHANA.G., ADVOCATE)

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AND:

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SMT. N. SHANTHI W/O RANGASWAMY AGED ABOUT 52 YEARS RESIDING AT NO.249/14 1^ST CROSS, DATTATREYA EXTENSION GAVIPURAM GUTTAHALLI KEMPEGOWDANAGAR BENGALURU – 560 019.

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SRI. D.S. SUDARSHAN S/O D.L. SRINIVAS AGED ABOUT 62 YEARS RESIDING AT NO.1078 I FLOOR, 14^TH MAIN HANUMANTHANAGAR BENGALURU – 560 019.

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NOW CHANGED AT: NO.122/2 , 2^ND CROSS, KEMPEGOWDA NAGAR BENGALURU – 560 028.

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SMT. MEENA SUDARSHAN W/O SRI. D.S. SUDARSHAN AGED ABOUT 53 YEARS RESIDING AT NO.1078 I FLOOR, 14^TH MAIN HANUMANTHANAGAR BENGALURU – 560 019.

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NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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NOW CHANGED AT: NO.122/2 2^ND CROSS, KEMPEGOWDA NAGAR

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BENGALURU – 560 028.

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…RESPONDENTS

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(BY SRI. GANGADHARA AITHAL, ADVOCATE FOR R-1; SRI. ARAVIND BABU, ADVOCATE FOR R-2 & R-3)

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THIS RFA IS FILED U/SEC.96 R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.03.2014 PASSED IN O.S.6705/2006 ON THE FILE OF THE XXIV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THESE APPEALS, COMING ON FOR FINAL HEARING , THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Both these appeals arise out of the impugned judgment and decree dated 20.03.2014 passed in O.S.No.6705/2006 by the XXIV Addl. City Civil & Sessions Judge, Bengaluru City, whereby the said suit filed by respondent No.1 – plaintiff for declaration, injunction and other reliefs was decreed by the Trial Court in favour of respondent No.1 – plaintiff.

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Heard learned counsel for the appellants and learned counsel for respondent No.1 and perused the material on record.

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The material on record discloses that respondent No.1 – Smt. N.Shanthi in both the appeals instituted the aforesaid suit

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for declaration, injunction and other reliefs in relation to the suit schedule immovable properties and for other reliefs. In the said

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NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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suit, the appellants in RFA No.819/2014 was arrayed as defendant Nos.3 and 4 while the appellant in the connected appeal – RFA 814/2023 was arrayed as defendant No.1 and they contested the suit. Pursuant to the pleading of the parties, the Trial Court framed the following issues:

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“1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property?

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2. Whether the plaintiff proves that the release deed dated 23.09.1998 came into existence without the knowledge of Sannamma?

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3. Whether the release deed dated 23.09.1998 is

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supported by consideration?

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4. Whether the plaintiff proves that the sale deed dated 20.01.2005 pertaining to B schedule property is not binding on her?

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5. Whether the plaintiff proves that she is in lawful possession of the suit schedule property ?

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6. Whether the plaintiff proves the alleged

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interference?

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7. Whether the suit is barred by law of limitation?

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8. Whether the suit is barred by Order 2 Rule 2 of CPC and Section 11 of CPC?

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9. Whether the defendant proves that the gift deed dated 16.10.2003 is a bogus document obtained by fraud?

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7 - NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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10. Whether there is no cause for a suit?

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11. What decree or order?

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During the course of trial, the plaintiff examined herself as PW1 and one more witness as PW2 and Ex.P1 to Ex.P81 were marked while defendant No.1 was examined as DW1 and defendant No.3 as DW2 and Ex.D1 to Ex.D23 were marked. It is an undisputed fact that said defendant No.1 – DW1 did not tender himself for cross-examination, he was discharged and his evidence was not taken into consideration.

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After hearing the parties, the Trial Court proceeded to uphold the claim of the plaintiff and decreed the suit in her favour, aggrieved by which, the defendants are before this Court by way of two separate appeals as stated supra.

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During pendency of the present appeal, the appellants in RFA No.819/2014 has filed two application viz., I.A.2/2015 under Order 41 Rule 27 CPC for permission to adduce additional evidence and also I.A.1/2021 under Order 41 Rule 27 CPC for permission to produce additional documents. Similarly, respondent No.1 in RFA No.819/2014 (plaintiff before the Trial Court) has also

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8 - NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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filed an application – I.A.3/2023 for permission to produce additional evidence.

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A perusal of the documents produced by the appellants and respondent No.1 in RFA No.819/2014 in their respective applications referred to supra will indicate that the same pertain to the suit schedule properties and that the documents are relevant and essential not only for the purpose of disposal of the appeal but also to adjudicate upon the issues in controversy between the parties. Further, affidavits in support of the respective applications clearly indicate that both parties have been able to establish that despite exercise of due diligence, the said documents could not be produced by them during the course of trial. It is also relevant to state that learned counsel for the appellants and respondent No.1 jointly submit that though they have no objection for the respective applications for additional evidence to be allowed subject to the condition that the matter needs to be remitted back to the Trial Court for reconsideration afresh in accordance with law.

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In view of the aforesaid facts and circumstances, I am of the considered opinion that the applications – I.A.2/2015,

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9 - NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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I.A.1/2021 and I.A.3/2023 filed in RFA No.819/2014 deserve to be allowed and accordingly, the same are hereby allowed and the documents produced with the same are directed to be received on record subject to their admissibility, proof, probative value, relevance, etc., to be decided by the Trial Court.

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The next point that would arise for consideration is the course to be adopted by this Court after allowing the applications for additional evidence.

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In this regard, having regard to the nature of the suit and issues involved in controversy between the parties and additional evidence produced by both sides, it would be necessary to provide one more opportunity to all parties to adduce additional oral and documentary evidence in support of their respective claims. Under these circumstances, I deem it just and appropriate to follow the procedure prescribed under Order 41 Rule 28 CPC and set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh, in accordance with law.

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10 -

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NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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11. In the result, I pass the following:

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ORDER

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(i) Both appeals are hereby allowed .

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(ii) The impugned judgment and decree dated 20.03.2014 passed in O.S.No.6705/2006 by the XXIV Addl. City Civil & Sessions Judge, Bengaluru City, is hereby set aside.

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(iii) I.A.2/2015 and I.A.1/2021 filed by the appellants in RFA No.819/2014 are hereby allowed and documents produced along with the said applications are received on record.

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(iv) I.A.3/2023 filed by respondent No.1 in RFA No.819/2014 is also allowed and documents produced along with the said application are received on record.

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(v) Matter is remitted back to the Trial Court for reconsideration afresh in accordance with law.

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(vi) It is made clear that setting aside of the impugned judgment and decree and remitting the matter

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11 -

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NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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back to the Trial Court shall not be construed or treated as expressing any opinion on the merits / demerits of the rival contentions.

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(vii) Registry of this Court is directed to transmit I.A.2/2015, I.A.1/2021 and I.A.3/2023 along with the annexed documents to the Trial Court for consideration in accordance with law.

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(viii) Parties undertake to appear before the Trial Court without awaiting further notice on 19.12.2023.

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(ix) Registry is directed to re-transmit the Trial Court Records back to the Trial Court immediately without any delay.

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(x) Liberty is reserved in favour of all parties to adduce additional oral and documentary evidence in respective of their respective claims.

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(xi) The Trial Court is directed to reconsider the entire matter and dispose of the same on merits in accordance with law on or before 19.04.2024.

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12 - NC: 2023:KHC:43030 RFA No. 819 of 2014 C/W RFA No. 184 of 2023

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(xii) All rival contentions between the parties including contention as regards admissibility, proof, relevance, probative value, etc., of the evidence are kept open and no opinion is expressed on the same.

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(xiii) Registry is directed to refund the entire (100%) Court Fee paid on the Memorandum of Appeal in both RFA No.819/2014 and RFA No.184/2023 in terms of Section 64 of the Karnataka Court Fees and Suit Valuation Act.

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Sd/JUDGE

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List No.: 1 Sl No.: 37

Shri D S Sudarshan v. Smt N Shanthi

Case brief

What is this about?

What did the court decide?

Shri D S Sudarshan v. Smt N Shanthi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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