Allowed

Smt. Shakunthala Devi v. Sri. Rajkumar

Karnataka HC27 Aug 2024MFA/661/2024

Case brief

AI extract

What is this about?

Suit over a gift deed among family members was dismissed for non-prosecution after plaintiffs failed to lead evidence despite four opportunities; a later restoration application was rejected for delay. The High Court restored the suit subject to costs of Rs.10,000/- payable to the respondent.

What did the court decide?

Both orders set aside; O.S.No.334/2015 restored to file subject to payment of Rs.10,000/- costs to respondent; parties directed to appear before trial court.

Smt. Shakunthala Devi Vs Sri. Rajkumar — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:34214 MFA No. 661 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE K. V. ARAVIND

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MISCELLANEOUS FIRST APPEAL No. 661 OF 2024 (CPC)

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BETWEEN:

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SMT. SHAKUNTHALA DEVI, WIFE OF LATE B. RAMESH CHAND, AGED ABOUT 57 YEARS,

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SRI. SURESH KASHYAP, SON OF LATE B. RAMESH CHAND, AGED ABOUT 37 YEARS,

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SMT. JYOTHI DAUGHTER OF LATE B. RAMESH CHAND, AGED ABOUT 34 YEARS,

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SMT. PINKY DAUGHTER OF LATE B. RAMESH CHAND, AGED ABOUT 31 YEARS,

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Digitally signed by VALLI MARIMUTHU Location: High Court of Karnataka

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APPELLANT No.1 TO 4 ARE RESIDING AT GROUND FLOOR, PROPERTY BEARING No. 29/B, 1^ST CROSS, BANGYAPPA GARDEN, LANGFORD ROAD, SHANTHINAGAR, BENGALURU-560 016.

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…APPELLANTS

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(BY SRI S. SHAKER SHETTY, ADVOCATE)

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AND:

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SRI. RAJKUMAR S/O. LATE BADRIPRASAD,

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2 - NC: 2024:KHC:34214 MFA No. 661 of 2024

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AGED ABOUT 55 YEARS, RESIDING AT FIRST FLOOR, PROPERTY BERAING No.29/B, 1^ST CROSS, BANGYAPPA GARDEN, LANGFORD ROAD, SHANTHINAGAR, BENGALURU-560 016.

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…RESPONDENT

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(BY SRI SYED SUHAIL ALI, ADVOCATE FOR CAVEATOR RESPONDENT(VC)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(c) OF CPC, AGAINST THE ORDER DATED 16.12.2023 PASSED IN MISC.NO. 48/2021 ON THE FILE OF THE 17^TH ADDITIONAL CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-16), DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 9 OF CPC.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL JUDGMENT

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The appellants preferred O.S.No.334/2015 with the

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following prayers:

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"(i) Declare that the registered Gift Deed dated 28.10.2014 executed by the 2^nd defendant in favour of the first defendant is null and void and not binding on the plaintiffs.

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(ii) Permanent injunction restraining the defendant, their men, servants or anybody claiming under them, from

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3 - NC: 2024:KHC:34214 MFA No. 661 of 2024

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forcible disposing the plaintiffs from the suit schedule property.

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(iii) Permanent injunction, restraining the first defendant from alienating or creating any charge or lien over the suit schedule property.

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(iv) Grant such other relief/s as it may deem fit to grant by this Hon'ble Court in the facts and circumstances of the case, in the interest of justice."

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On service of notice, the defendant No.1 filed

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the written statement. The trial court framed issues. The appellants failed to lead their evidence. The trial court granted opportunities to lead evidence on 20.06.2017, 02.08.2017, 11.09.2017 & 26.10.2017, the plaintiffs failed to record their evidence. As the plaintiffs failed to lead their evidence even after sufficient opportunities, the trial court dismissed the suit for non-prosecution vide order dated 26.10.2017.

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The appellants preferred Misc.No.48/2021 to

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recall the order dated 26.10.2017. The trial court while

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deciding the application, considered the reasons in not leading the evidence when opportunity was granted. The trial court also recorded that the defendant has not seriously disputed restoration of the suit. However, the trial court proceeded to hold that the appellants have not explained the delay in approaching the Civil Court seeking restoration of the original suit. The trial court accordingly, rejected the application by order dated 16.12.2023. This appeal is filed challenging the orders of the trial court dated 26.10.2017 and 16.12.2023.

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Learned counsel appearing for the petitioner

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submits that due to miscommunication by the counsel representing plaintiffs, the plaintiffs could not instruct their counsel to lead their evidence. It is submitted that non recording of evidence, when opportunity was granted by the trial court was due to lack of communication and due to bonafide reasons. It is submitted that if an opportunity is granted, the appellants would co-operate with the trial

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court for expeditious disposal of the suit without seeking unnecessary adjournments.

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Learned counsel appearing for the respondent submits that sufficient time was granted by the trial court to the plaintiffs to lead their evidence, but the appellants have failed to avail the opportunity. Learned counsel however, submits that the original suit can be restored subject to payment of costs.

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Considered the submissions of the learned counsel for the parties and perused the appeal papers.

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The civil suit in O.S.No.334/2017 revolves

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around a Gift deed dated 28.10.2014 amongst the family members. The trial court has granted as many as four opportunities to the plaintiffs, from June 2017 to December 2017 to lead their evidence. It is the specific contention of the plaintiffs that the counsel representing them has not informed the stage of leading further evidence and their presence. At this stage, this court is

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NC: 2024:KHC:34214 MFA No. 661 of 2024

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not inclined to examine the correctness of the reasons assigned for not leading evidence before the trial court.

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The dispute in the original suit is between the family members. The rejection of the suit by the trial court for non-prosecution would not resolve the dispute; however, the same would aggravate and lead to multiple litigations.

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Considering the nature of the dispute and the

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fact that all the parties to the original suit are the family members, this court is inclined to grant an opportunity to both the parties to participate in the original suit proceedings and the dispute is adjudicated by the civil court. The suit is of the year 2015 and the same is dismissed in the year 2017 and the application for recalling is filed in the year 2021. The appellants have unnecessarily compelled the respondent to defend the miscellaneous application and this appeal, which could have been avoided if the plaintiffs/appellants were vigilant in prosecuting their suit. The hardship caused to the

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NC: 2024:KHC:34214 MFA No. 661 of 2024

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respondent needs to be compensated with costs. In the

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backdrop of the above reasons, the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The order dated 26.10.2017 in O.S.No.334/2015 on the file of Principal City Civil and Sessions Judge and the order dated 16.12.2023 in Misc.No.48/2021 on the file of the XVII Additional City and Sessions Judge, Bengaluru City, is hereby set aside. O.S.No.334/2013 is restored to file.

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(iii) The submission of the learned counsel for the appellant that no unnecessary adjournments would be requested before the trial court is placed on record and parties shall abide by the same.

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(iv) The parties shall appear before the trial court in O.S.No.334/2015 on 19.09.2024.

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(v) The trial court shall make an endeavour to dispose of the suit expeditiously.

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NC: 2024:KHC:34214 MFA No. 661 of 2024

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(vi) Restoration of O.S.No.334/2015 is subject to payment of costs of Rs.10,000/- (Rupees Ten Thousand Only) to be paid to the respondent. The payment of costs shall be reported before the trial court.

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Sd/(K. V. ARAVIND) JUDGE

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SS List No.: 1 Sl No.: 7

Smt. Shakunthala Devi v. Sri. Rajkumar

Case brief

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Smt. Shakunthala Devi v. Sri. Rajkumar

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