Appellant, who failed to cross-examine witnesses or adduce evidence in the first appeal and remained non-contestant, filed a second appeal alleging lack of opportunity. The High Court dismissed the appeal, refusing to remedy the defect due to lack of cogent material.
The second appeal was dismissed; the interim application for vacating stay stands disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No. 126 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 126 OF 2022 (DEC/POS)
BETWEEN:
…APPELLANT
(BY SRI. SANDESH T.B., ADVOCATE)
AND:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
…RESPONDENT
(BY SRI. GNANESHA N.I., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.11.2020 PASSED IN RA.No.65/2018 ON THE FILE OF THE I SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 06.09.2018 PASSED IN O.S.No.267/2014 ON THE FILE OF THE CIVIL JUDGE AND ADDITIONAL JMFC, TARIKERE.
RSA No. 126 of 2022
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission today. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
RSA No. 126 of 2022
RSA No. 126 of 2022
RSA No. 126 of 2022
and also the written statement as well as taken note of the evidence available on record in paragraph No.18 taken note of filing an application for extension of time for filing written statement and after completion of 90 days only considered the statement of the defendant as NIL. Even after that also written statement was filed along with an application and the Trial Court allowed the same and taking into note of the said fact and also observed in the order that no application is filed even in the First Appellate Court also to produce any document invoking Order 41 Rule 27 of CPC.
RSA No. 126 of 2022
RSA No. 126 of 2022
examining the witnesses, only the contention is that he was the owner of the suit schedule property and the said property devolves upon him as family property and to substantiate that contention even in the appeal also he had not produced any document except stating that no opportunity was given. When the defendant has not contested the matter and in a second appeal this Court cannot cure the defect and also in support of the contention of the learned counsel for the appellant that the defendant was not having good health, no document is placed before the Court even for remanding the matter. The ground that they were not keeping well and they could not adduce any evidence cannot be accepted unless cogent material is placed before the Court for remanding the matter. Hence, I do not find any merit in the second appeal to admit and frame substantial question of law as the appellant has not contested the matter before the Trial Court and not adduced any evidence before the Trial Court and also not made any effort before the First Appellate Court to produce any document.
RSA No. 126 of 2022
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.A.No.3/2022 for
Vacating Stay does not survive for consideration and the same stands disposed of.
Sd/JUDGE
CP List No.: 1 Sl No.: 41
2 issues framed by the court
Whether the second appeal succeeding against the dismissal of the first appeal should be allowed.
Whether the second appeal created a substantial question fit to be decided.
SHIVU @ SHIVRAJ
T.R. GOPAL
H.P. SANDESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
