Allowed

C L Hanuman v. Poornima

Karnataka HC2 Sept 2024MSA/4/2021

Case brief

AI extract

What is this about?

In a second appeal against a remand order in a partition suit, the High Court found that allowing plaintiffs to adduce additional evidence while denying the defendant the opportunity to file a written statement caused miscarriage of justice. The appeal was allowed to the extent of permitting the defendant to contest the suit on merits.

What did the court decide?

4th defendant permitted to file written statement and contest the suit on merits on next date of hearing.

C L Hanuman Vs Poornima — Partition | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 2^ND DAY OF SEPTEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE V SRISHANANDA MISCELLANEOUS SECOND APPEAL NO. 4 OF 2021 (RO)

¶7

BETWEEN:

¶8

C L HANUMAN, S/O K LAKKEGOWDA, AGED ABOUT 46 YEARS, R/O CHITTANAHALLI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT - 573210.

¶9

…APPELLANT

¶10

(BY SRI VIGNESHWAR S SHASTRY, SR. COUNSEL A/W SRI GURURAJ R, ADVOCATE)

¶11

AND:

¶12

POORNIMA, W/O UMASHANKAR, AGED ABOUT 39 YEARS, R/O CHITTANAHALLI VILLAGE,

¶13

Digitally signed by MALATESH K C

¶14

Location: HIGH COURT OF KARNATAKA

¶15

KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT-573210.

¶16

PRATHAP GOWDA, S/O UMASHANKAR, AGED ABOUT 25 YEARS, R/O CHITTANAHALLI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT -573210.

¶17

LAKSHMI, D/O UMASHANKAR, AGED ABOUT 24 YEARS,

¶18

R/O CHITTANAHALLI VILLAGE,

¶19

¶20

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶21

KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT - 573210.

¶22

SMT JAYAMMA, W/O K LAKKEGOWDA, AGED ABOUT 75 YEARS, R/O CHITTANAHALLI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT. SINCE DECEASED REP. BY LRS TO 3 APPELLANT, RESPONDENT NO.1 AND RESPONDENTS NO.5 TO 7 ARE THE LRS OF RESPONDENT NO.4 WHO ARE ALREADY ON RECORD AMENDEMENT CARRIED OUT V/O/DT: 03.06.2024 ON 10.06.2024.

¶23

C L UMASHANKAR, S/O K LAKKEGOWDA, AGED ABOUT 53 YEARS, R/O CHITTANAHALLI VILLAGE, KASABA HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT - 573210.

¶24

SMT C L KALPANA, W/O RAMEGOWDA, AGED ABOUT 50 YEARS, R/O KANCHUGARA BHEEDI PETE, HOLENARASIPURA, HASSAN DISTRICT-573210.

¶25

SMT C L SAHANA, W/O SUNDARESH, AGED ABOUT 38 YEARS, R/O MIRLE VILLAGE, SALIGRAMA HOBLI, K R NAGAR TALUK, MYSORE DISTRICT-571602.

¶26

…RESPONDENTS (BY SMT BHARATHI PATIL, ADVOCATE FOR R1 TO R3,

¶27

¶28

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶29

R5 AND R6 ARE SERVED AND UNREPRESENTED, V/O/DT: 22.07.2024 NOTICE TO R7 IS HELD SUFFICIENT, V/O/DT: 03.06.2024 R1 TO R3 AND R5 TO R7 ARE LRS OF DECEASED R4)

¶30

THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC FILED AGAINST THE JUDGMENT AND DECREE DATED 03.11.2020 PASSED IN RA.No.03/2015 ON THE FILE OF THE SENIOR CIVIL JUGE AND JMFC, HOLENARASIPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.12.2014 PASSED IN OS.No.49/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HOLENARASIPURA AND REMANDING BACK TO THE TRIAL COURT TO PROVIDE AN OPPORTUNITY TO THE PLAINTIFF/APPELLANTS TO ADDUCE ADDITIONAL EVIDENCE IN TERMS OF IA UNDER ORDER 41 RULE 27 CPC AND PERMIT THE DEFENDANTS TO CROSS EXAMINE THE P.W.1 AND THEN TO DISPOSE OFF THE MATTER IN ACCORDANCE WITH LAW.

¶31

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

¶32

ORAL JUDGMENT

¶33

Heard Sri.Vigneshwar S. Shastry, learned Senior

¶34

counsel for the appellant. None appears for the respondents.

¶35

The present Second Appeal is filed by the 4^th defendant challenging the order of remand passed in Regular Appeal No.3/2015 on the file of Senior Civil Judge & JMFC, Holenarasipura, whereby the judgment and decree passed in

¶36

¶37

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶38

O.S.No.49/2009 was set aside and the matter is remanded

¶39

to the Trial Court.

¶40

The operative portion of the order of the First Appellate Court reads as under:

¶41

"The appeal filed by the appellant/plaintiffs under Order 41 Rule 1 of CPC, is hereby allowed.

¶42

The judgment and decree passed in O.S.49/2009 dated 09.12.2014 on the file of Civil Judge & JMFC, Holenarasipura is hereby set aside.

¶43

The matter is remanded back to the trial court to provide an opportunity to the plaintiff / appellants to adduce additional evidence in terms of I.A under Order 41 Rule 27 CPC and permit the defendants to cross-examine the P.W.1 and then to dispose off the matter in accordance with law.

¶44

In the circumstances, both the parties to bear their own cost in the appeal.

¶45

The cross appeal filed by the cross objectors is hereby dismissed.

¶46

Office is hereby directed to draw decree accordingly and also to return entire records of

¶47

¶48

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶49

original suit to the trial court along with copy of the judgment in this appeal."

¶50

4. The fact in brief which are utmost necessary for

¶51

the disposal of the present Second appeal are as under:

¶52

A suit came to be filed by respondents No.1 to 3 in this appeal who are plaintiffs in O.S.No.49/2009 in respect of immoveable properties for the relief of partition and separate possession in respect of the landed properties situated at Chittanahalli village, Kasaba Hobli, Holenarasipura Taluk. It is the contention of the plaintiffs that they are children of Umashankar and suit properties situated at Chittanahalli village belong to one Lakkegowda who had a son by name K.Lakkegowda. The said K. Lakkegowda had children by name C.L.Umashankar, C.L.Hanuman, C.L.Kalpana and C.L.Sahana. Wife of K.Lakkegowda by name Jayamma. Children of Umashankar being the members of joint family laid a claim for partition and separate possession in respect

¶53

of the suit properties. The suit was decided exparte , taking note of the fact that the defendants failed to file the written

¶54

¶55

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶56

statement. Learned trial Judge raised necessary points and dismissed the suit on the ground that the plaintiffs were not aware of the details of the joint family properties and they were unable to establish before the Court that the suit properties are joint family properties.

¶57

Being aggrieved by the dismissal of the suit, plaintiffs filed an appeal before the First Appellate Court in R.A.No.03/2015. The said appeal was contested by the defendants who failed to file written statement before the Trial Court.

¶58

Learned trial Judge heard the parties and allowed the appeal by setting aside the dismissal of the suit in O.S.No.49/2009 and remitted the matter to the Trial Court for fresh disposal in accordance with law.

¶59

Learned Judge of First Appellate Court permitted the plaintiffs to place additional evidence on record. Crossappeal filed by the cross-objectors/defendants was dismissed in the very same appeal.

¶60

¶61

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶62

8. Being aggrieved by the same, the 4^th defendant is before this Court.

¶63

Sri.Vigneshwar S.Shastry, learned Senior counsel representing the learned counsel for the appellants, assailing the correctness of the judgment of the First Appellate Court contended that in a suit for partition, when the learned trial Judge has recorded a categorical finding that the plaintiffs were unable to make out that the suit properties are the joint family properties, the First Appellate Court accepting the additional evidence failed to note that valuable right of the defendants were also affected. As such ought to have allowed the appeal of the defendants and permitted to contest the suit and the same is not properly appreciated by the learned Judge in the First Appellate Court resulting in miscarriage of justice and sought for allowing of the appeal.

¶64

None appears for the respondents. In the light of the arguments put forth on behalf of the appellant, this Court perused the material on record meticulously.

¶65

¶66

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶67

On such perusal of the material on record, admittedly, the present appellant who is the 4^th defendant before the Trial Court did not chose to contest the suit by filing written statement. Nevertheless, the learned trial Judge noted that plaintiffs failed to make out a case that the suit properties are joint family properties and dismissed the suit.

¶68

Being aggrieved by the dismissal of the suit, plaintiffs filed an appeal before the First Appellate Court. The 4^th defendant also filed a cross-appeal permitting the defendants to contest the suit on merits. Learned Judge in the First Appellate Court while setting aside the judgment of the trial Court and permitting the plaintiffs to place additional evidence on record, did not permit to allow the appeal of 4^th defendant to contest the suit on merits.

¶69

In a suit for partition, the 4^th defendant wanted to have his say in the matter. Denying the opportunity for the 4^th defendant to contest the suit by filing a written statement and permitting the plaintiffs alone to place additional evidence on record has thus resulted in miscarriage of justice

¶70

¶71

NC: 2024:KHC:35473 MSA No. 4 of 2021

¶72

calling for interference by this Court by exercising the power vested by this Court under Order XLIII of Code of Civil Procedure.

¶73

Accordingly, the following:

¶74

ORDER

¶75

(i) Appeal is allowed to the extent that the 4^th defendant was denied the opportunity to file the written statement and contest the suit on merits.

¶76

(ii) Since the matter is already remitted to the Trial Court for permitting the plaintiffs to lead additional evidence and proceed with the Court, 4^th defendant is also permitted to file the written statement on the next date of hearing and contest the suit on merits in accordance with law.

¶77

(iii) It is made clear that this Court has not expressed any opinion on the merits of the matter.

¶78

Sd/(V SRISHANANDA) JUDGE

¶79

GVP List No.: 1 Sl No.: 39

C L Hanuman v. Poornima

Case brief

What is this about?

What did the court decide?

C L Hanuman v. Poornima

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

Coram

Case details

Similar cases

R Srinivas Vs Dr Venkatesh S

Shri R K Naidu Vs Shri Dastagir Khan

Vedagiri Vs Sri C Yathish

N Prakash Vs C Prakash

Sri. D. Narasegowda Vs Sri. L. N. Swamy

Mr Nagegowda Vs Mr G N Manju