Allowed

Sri Inayath Ali v. Sri Anwar Ali

Karnataka HC23 Nov 2023RFA/978/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal filed under Section 96 CPC against the dismissal of a suit for declaration and permanent injunction. The Court permitted an application for additional evidence and set aside the impugned judgment and decree, remitting the matter to the trial court for reconsideration.

What did the court decide?

The appeal was allowed; the impugned judgment and decree were set aside; the application for additional evidence was allowed; matter remitted to trial court.

Sri Inayath Ali Vs Sri Anwar Ali — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:42598 RFA No. 978 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD 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.978 OF 2016 (DEC/INJ)

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BETWEEN:

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SRI INAYATH ALI SINCE DECEASED BY HIS LRS

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SMT. JAMEELA BEGUM W/O LATE INAYATH ALI

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AGED ABOUT 65 YEARS.

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SRI SADATH ALI S/O LATE INAYATH ALI AGED ABOUT 46 YEARS.

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BOTH ARE R/AT NO. 54 3^RD FLOOR, GOVINDA SHETTY GARDEN BENGALURU – 560 051.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT. RAHATH BEGUM W/O SRI. SAJID AHMED D/O LATE INAYATH ALI AGED ABOUT 52 YEARS R/ATNO.19, 1^ST CROSS SINAPPA GARDEN, D.T. HALLI, BENGALURU – 560 045.

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SMT. NAZRATH BEGUM W/O SRI. ABDUL WAJID D/O LATE INAYATH ALI AGED ABOUT 49 YEARS R/AT NO.241, 2^ND FLOOR HKP ROAD, NEHA STREET 1^ST CROSS, CHANDINICHOWK ROAD BENGALURU – 560 051.

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SMT. ZEENATH BEGUM W/O SRI. HABEEBUR RAHAMAN

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2 - NC: 2023:KHC:42598 RFA No. 978 of 2016

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D/O LATE INAYATH ALI AGED ABOUT 42 YEARS R/AT NO.8, KUPPASWAMY NAIDU STREET CHANDINI CHOWK ROAD, SHIVAJINAGAR BENGALURU – 560 051.

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…APPELLANTS

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(BY SRI. R B SADASHIVAPPA., ADVOCATE)

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AND:

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SRI ANWAR ALI S/O LATE SRI. IMTIAZ ALI, AGED ABOUT 49 YEARS,

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SMT. NASREEN BEGUM W/O SRI. AKBAR, D/O LATE SRI IMTIAZ ALI, AGED ABOUT 44 YEARS,

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R-1 & R-2 ARE R/AT NO.23, 1^ST FLOOR, BROADWAY ROAD, E-NO.3 STREET, SHIVAJINAGAR, BENGALURU-560 051.

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SRI. LIYAKATH ALI KHAN SINCE DECEASED BY HIS LRS,

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3 SMT. MUMTAZ BEGUM W/O LATE SRI. LIYAKATH ALI KHAN AGED ABOUT 61 YEARS,

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SRI. WASIM ALI S/O LATE SRI. LIYAKATH ALI KHAN AGED ABOUT 38 YEARS,

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SMT. SALIMA BEGUM D/O LATE SRI. LIYAKATH ALI KHAN AGED ABOUT 39 YEARS,

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R-3 TO R-5 ARE R/AT NO.6, 1^ST MAIN, ‘D’ BLOCK, KANAKA NAGARA, BENGALURU.

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…RESPONDENTS

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(NOTICE TO R-1 & R-2 IS HELD SUFFICIENT VIDE COURT ORDER DATED 08.01.2019; R-3, R-4 & R-5 ARE SERVED & UNREPRESENTED)

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NC: 2023:KHC:42598 RFA No. 978 of 2016

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THIS RFA IS FILED UNDER SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 17.02.2016 PASSED IN OS NO.8155/2007 ON THE FILE OF THE V ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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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 by the original plaintiff in O.S.No.8155/2007 on the file of the V Addl.City Civil and Sessions Judge, Bangalore, is directed against the impugned judgment and decree dated 17.02.2016, whereby the said suit for declaration, permanent injunction and other reliefs in relation to the suit schedule immovable property was dismissed by the trial court.

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Heard learned counsel for the appellants and perused the material on record. The respondents having been served with the notice of the appeal, have chosen not to contest the same and have remained unrepresented.

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For the purpose of convenience, the parties are referred to by their respective ranks before the trial court.

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NC: 2023:KHC:42598 RFA No. 978 of 2016

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The material on record indicates that the plaintiff instituted

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the aforesaid suit for declaration, permanent injunction and other reliefs in relation to the suit schedule immovable properties. The defendants filed their written statement and contested the suit, pursuant to which, the trial court framed the following issues:-

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(i) Whether the plaintiff proves that he is alone being the tenant is in lawful possession over schedule property?

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(ii) Whether the suit is hit by principles of res judicata?

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(iii) Whether plaintiff is entitled for relief claimed in the

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suit?

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(iv) What order or decree?

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The plaintiff examined his GPA Holder as PW-1 and documentary evidence at Exs.P1 to P26 were marked. The defendants did not cross-examine PW-1 nor did they adduce any oral or documentary evidence. After hearing both sides, the trial court proceeded to pass the impugned judgment and decree dismissing the suit filed by the plaintiffs, aggrieved by which, they are before this Court by way of the present appeal.

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During the pendency of the appeal, the appellants have filed an application I.A.2/2023 under Order 41 Rule 27 CPC seeking permission to adduce additional evidence. The

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5 - NC: 2023:KHC:42598 RFA No. 978 of 2016

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respondents have been served with notice and have chosen to remain unrepresented and have not contested the appeal nor have they filed objections to I.A.2/2023.

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The following points arise for consideration in the present appeal:-

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(i) Whether the application I.A.2/2023 filed by the appellants for permission to produce additional evidence deserves to be allowed?

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(ii) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal?

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Re-Point No.1:-

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A perusal of the material on record including the impugned judgment and decree will indicate that the trial court has come to the conclusion that the 1^st appellant – plaintiff had not substantiated his claim in the suit, since legal and acceptable evidence had not been produced by him. In this context, a perusal of the additional documents produced by the appellants along with I.A.2/2023 will indicate that the same are not only relevant and material for the purpose of adjudication of the present appeal, but

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NC: 2023:KHC:42598 RFA No. 978 of 2016

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the same are required for the purpose of enabling the appellants to establish their claim which was rejected by the trial court.

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8.1 As stated supra, the respondents – defendants have not only chosen to remain unrepresented and not filed objections to the appeal, but have also not filed objections to I.A.2/2023. Under these circumstances, I am of the considered opinion that the application I.A.2/2023 filed by the appellants deserves to be allowed and the documents produced with the same deserve to be received on record.

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Accordingly, Point No.1 is answered in favour of the appellants and I.A.2/2023 is hereby allowed.

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Re-Point No.2:-

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While answering Point No.1 supra, I have already come to the conclusion that the application for additional evidence I.A.2/2023 deserves to be allowed and the documents in relation to the same are to be received on record. Under these circumstances, in order to provide one more opportunity to the parties to establish their respective claims by adducing further oral and documentary evidence including the evidence produced along with I.A.2/2023, I deem it just and appropriate to set aside the

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NC: 2023:KHC:42598 RFA No. 978 of 2016

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impugned judgment and decree and remit the matter back to the

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trial court for reconsideration afresh in accordance with law by leaving open all contentions.

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Point No.2 is answered accordingly.

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In the result, I pass the following:-

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ORDER

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(i) Appeal is hereby allowed.

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(ii) The impugned judgment and decree dated 17.02.2016 passed in O.S.No.8155/2007 by the V Addl. City Civil Judge, Bengaluru City, is hereby set aside.

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(iii) I.A.2/2023 filed by the appellants for production of additional evidence by way of documents is hereby allowed and the documents produced along with I.A.2/2023 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) Registry is directed to transmit I.A.2/2023 along with the documents to the Trial Court for reconsideration in accordance with law.

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

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NC: 2023:KHC:42598 RFA No. 978 of 2016

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(viii) Respondents are granted liberty to adduce evidence in

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relation to the additional documents sought to be marked by the appellants.

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Sd/JUDGE

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SV/SRL List No.: 1 Sl No.: 24

Sri Inayath Ali v. Sri Anwar Ali

Case brief

What is this about?

What did the court decide?

Sri Inayath Ali v. Sri Anwar Ali

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

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