Dismissed

Sri Ravindranath Mane v. Smt. Meera Satyananda Nikam

Karnataka HC20 Dec 2024RFA/1744/2022

Case brief

AI extract

What is this about?

This first appeal against a regular first appeal challenged a trial court's order for division of property by metes and bounds. The High Court found that sufficient opportunities were given to the appellants to file objections to the main petition and the Commissioner's report, which were not availed. The High Court upheld the trial court's order, dismissing the appeal.

What did the court decide?

The appeal was dismissed; the trial court's order for division of property by metes and bounds was upheld.

Sri Ravindranath Mane Vs Smt. Meera Satyananda Nikam — Partition | Karnataka HC (2024)

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NC: 2024:KHC:52905 RFA No. 1744 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 1744 OF 2022 (PAR)

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Between:

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Sri Ravindranath Mane S/o Late J.Athmaram Mane, Since deceased by his LRS,

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Smt. Devika Bai, W/o Late Ravindranath Mane, Aged about 59 years,

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Sri Roopesh Mane S/o Late Ravindranath Mane, Aged about 33 years,

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Sri Shreyas Mane S/o Late Ravindranath Mane, Aged about 25 years,

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Digitally signed by VEERENDRA KUMAR K M Location: HIGH COURT OF KARNATAKA

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All are residing at No.36, Anajaneya Temple 1^st Street, Sheshadripuram, Bengaluru -560020.

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…Appellants

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(By Sri Amaresh A.Angadi, Advocate)

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And:

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Smt. Meera Satyananda Nikam W/o Sri Satyananda Nikam D/o Late J.Athmaram Mane, Aged about 65 years, No.131, 3^rd Main, 3^rd Block, 3^rd Stage, Basaveswara Nagar, Bengaluru - 560079.

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Mr. Babu Laxminarayana Rao Mane S/o Late J.Athmaram Mane Since deceased represented by LRS,

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Mrs. Shantha Rao, W/o Late Babu Laxminarayana Rao Mane, Aged about 69 years,

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Mr. Prashanth Mane S/o Late Babu Laxminarayana Rao Mane, Aged about 48 years,

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Mr. Vijay Mane S/o Late Babu Laxminarayana Rao Mane, Aged about 46 years,

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Mrs. Poonam Ashwathnarayana D/o Late Babu Laxminarayana Rao Mane, Aged about 38 years,

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Respondents No.2 to 5 are Residing at No.73, 7^th Main, 1^st 'C' Cross, 2^nd Phase, 4^th Block, Banashankari 3^rd Stage, Bengaluru -560085.

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Mr. Babu Vishwanath Mane Since deceased by LRS

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Smt. Shyamala Bai, W/o Late Babu Vishwanath Mane, Aged about 61 years,

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Gyaneshwara Kiran Mane, S/o Late Babu Vishwanath Mane , Aged about 36 years,

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Praveen Mane S/o Late Babu Vishwanath Mane, Aged about 34 years,

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Respondents No.6 to 8 are Residing at No.441, 3^rd Cross, 3^rd Block, 3^rd Stage, BEML Layout, R.R.Nagar, Bengaluru - 560098.

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…Respondents

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(By Sri M.R.Rajagopal, Senior Counsel for Sri H.N.Basavaraju, Advocate for R1; v/o dated 13.11.2024, notice to R2 to R8 is dispensed with)

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This RFA is filed under Order 41 Rule 1 read with section 96 CPC against the order dated 29.08.2022 passed in FDP No.69/2016 on the file of the I Additional City Civil and Sessions Judge, Bengaluru, allowing the petition filed under section 54 of CPC.

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This RFA, coming on for orders, this day, judgment was delivered therein as under:

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed by the appellants (respondents 1(a) to 1(c) in FDP No.69/2016) under Section 96 of CPC for setting aside the order passed by the I Additional City Civil and Sessions Judge, Bengaluru in FDP No.69/2016 dated 29.08.2022 by making the order for division of property.

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NC: 2024:KHC:52905 RFA No. 1744 of 2022

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Heard the arguments of learned counsel for appellants and the learned Senior Counsel for respondent No.1.

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The case of the appellants before this court is that, the respondent No.1/plaintiff has filed a suit in O.S.No.4849/2002 for partition and separate possession. The said suit was decreed. Later on, an appeal was filed before this court which also came to be dismissed and during the pendency of the appeal, the plaintiff has filed FDP proceedings before the trial court, and during pendency of the appeal, an application for appointment of Commissioner was filed by the plaintiff/petitioner and subsequently after passing judgment by this court in RFA No.666/2016, without giving an opportunity to the respondents/appellants, the trial court passed the impugned order. It is further contended that even the Commissioner without visiting the spot,

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prepared the report, which was blindly accepted by the trial court and passed the final order. It is also contended by the appellants that on perusal of the impugned order at Para 4(a), 4(b), 13, 15 and 16 of the impugned order are all not pertaining to the present case and is nothing to do with the case. But the trial court wrongly passed the order

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by referring some other matter and allowed the petition. Therefore the appellants are before this court for setting aside the same.

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Learned Senior Counsel for respondent No.1/plaintiff contended that though some reference was made by the trial court in the impugned order, but that will not come to the aid of the appellants and the same will not prejudice the case of the appellants. The notice has been issued by the Commissioner which was returned unserved. Even the notice issued through RPAD was also returned unclaimed. When the

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Commissioner visited the spot, the appellants have not filed objections to the application filed by the respondent No.1/petitioner for appointment of commissioner. Opportunity has been given, which was not availed by the appellants and thereafter order was passed. Even after passing of the order, the appellants have not filed memo of instructions to the Commissioner in spite of giving opportunity and thereafter even after filing the Commissioner report, opportunity was given to the respondents to file objections to Commissioner’s report. But they did not availed the opportunity. Therefore it is contended that sufficient opportunity has been given which was not availed and the appellants were dragging the matter. Hence the trial court finally passed the order and accepted the commissioner report for division of property by metes and bounds. It is also contended by the learned Senior Counsel that even if the order is perused, there is no prejudice caused to the

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NC: 2024:KHC:52905 RFA No. 1744 of 2022

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appellants in the impugned order. Therefore prayed for dismissal of the appeal.

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Having heard the learned counsel for the appellants and learned Senior Counsel for respondent No.1, the following points would arise for consideration:

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POINTS

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i) Whether the trial court committed error in referring the averments made in Para 4(a), 4(b), 13, 15 and 16 which caused prejudice to the case of the appellants?

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ii) Whether the order of the trial court call for interference for not providing opportunity to the appellants?

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iii) What order?

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On perusal of the records, it is an admitted fact that the respondent No.1/plaintiff filed a suit in O.S.No.4849/2002 which came to be decreed on 20.01.2016. Feeling aggrieved by the same, the appellants were before this court in RFA

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NC: 2024:KHC:52905 RFA No. 1744 of 2022

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No.666/2016 which came to be dismissed and confirmed the judgment of the trial court in respect of preliminary decree.

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During the pendency of the appeal, the respondent No.1/plaintiff filed FDP before the trial court which was pending consideration in view of staying the proceedings by this court in the first appeal. Subsequently this court has dismissed the appeal on 12.11.2021.

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It is seen from the order sheet of the trial court that an application for appointment of commissioner has been filed prior to passing of the judgment by this court on 12.11.2021. However, after passing the judgment, copy of the judgment has been produced before the trial court on 09.12.2021.

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Thereafter the trial court given opportunity to the respondents’ counsel, where the respondents’ counsel remained absent. It is seen

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from the trial court order sheet that the matter was adjourned to 11.01.2022, where the respondents who are appellants herein have appeared before the court through a new advocate called ‘PC’ by filing NOC vakalat and at the request the case was adjourned. Again the case was came before the court on 25.01.2022, the counsel for the petitioner files memo proposing the name of the Court Commissioner and again the matter was adjourned for filing objections by the respondents.

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Again when the case has been called on 14.03.2022, the counsel for the petitioner (respondent No.1 herein) was present, but there is no representation on the side of the respondents (appellants herein). Once again the case was called out and adjourned to 28.03.2022.

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Again on 28.03.2022, Advocate for the petitioner was present. The respondents’ counsel requested for filing objections. Again the case was

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adjourned by the trial court for filing objections by the respondents (appellants herein).

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The matter was again taken up on 08.04.2022. Once again the case was adjourned for filing objections. Again on 13.04.2022, where Advocates for both sides i.e., petitioner’s counsel and the respondents’ counsel were present and the trial court passed the order stating that sufficient time given to the respondents (appellants) and they have taken more than four years for filing objections. Therefore prayer for filing objections is rejected and objection is taken as not filed and the I.A. filed by the petitioner (respondent No.1 herein) for appointment of Commissioner has been allowed. The trial court also ordered to issue a Commissioner warrant.

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Subsequently on 22.04.2022, the

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Commissioner’s fee has been deposited by the petitioner and the petitioner’s counsel filed memo

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NC: 2024:KHC:52905 RFA No. 1744 of 2022

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of instructions, but the respondents’ counsel present on the day and filed I.A. for recalling the order dated 13.04.2022 for appointment of Court Commissioner. Even on that day, the respondents have not chosen to file objections to the Commissioner’s report and also not filed any memo of instructions to the Commissioner.

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Subsequently the case was adjourned for

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two dates and later on, on 16.07.2022, the ADLR report has been opened in the open court, where the respondents’ counsel (appellants’ herein) sought time for filing objections on the Commissioner’s report. Again the trial court granted time twice from 16.07.2022 to 25.07.2022 and thereafter again the case was adjourned to 03.08.2022, where the petitioner’s counsel was present and the respondents’ (appellants) counsel was remained absent and not filed any objections to the Commissioner’s report. Thereafter on

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11.08.2022, the respondents’ counsel prayed time for filing objections, which was rejected by the trial court and thereafter the order came to be passed after three dates of hearing.

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Even on the date of hearing, the

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respondents’ counsel has not chosen to file any objections to the Commissioner’s report. Even there is no objections filed to the main petition itself. Thereafter the arguments of the learned counsel for the petitioner was heard and the respondents’ counsel filed written arguments and once again the arguments on both sides was heard by the trial court on 28.07.2022 and thereafter the impugned order came to be passed.

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On careful perusal of the impugned order which clearly reveal that the trial court has given sufficient opportunity to the appellants for filing objections to the main petition. Thereafter time was granted for filing objections on the application

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for appointment of Commissioner. Thereafter even after appointing the Commissioner an opportunity was given to the appellants for filing objections to the Commissioner’s report but it was not availed by the appellants. Even otherwise the appellants have also failed to file memo of instructions to the Commissioner.

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The order of the trial court reveal sufficient opportunity given by the trail court for filing objections, but it was not utilized by the appellants’ counsel in the trial court. That apart the impugned order passed by the trial court also reveals that as per the Commissioner’s report, the Commissioner also issued notice to the present appellants, which was returned ‘unclaimed’ and thereafter the Commissioner visited and verified the spot and prepared report and submitted to the court.

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On perusal of Para 18 of the impugned order, it is clearly revealed that the notice has been issued to the appellants by the Commissioner inspite of the same, they have not claimed the notice and not participated during visit by the Commissioner at the spot while inspecting the spot by the Commissioner.

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On perusal of these facts, which clearly shows that sufficient opportunity was given by the trial court as well as the Commissioner. But the same has not availed by the appellants before the trial court. Therefore the contention of the appellants’ counsel cannot be accepted. Though sufficient opportunity given to the appellants for challenging the application filed for appointment of Commissioner, to file memo of instructions and to file objections to the Commissioner’s report.

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As regards another contention raised by

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the learned counsel for the appellants in respect of

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averments made in Para 4(a), 4(b), 13, 15 and 16 of the trial court order, which reveals ofcourse there was some error committed by the trial court had discussed the some other cases i.e., O.S.No.5873/1999, RA No.209/2010 and O.S.No.4747/2012 and the matter went up to Supreme Court in SLP and was confirmed etc. But these averments nothing to do with the present case. The said mistake may be occurred due to ‘ copy and paste’ of the order by the trial court. However, whether these averments made in the impugned order which prejudice the case of the appellants as contended by the counsel for the appellants.

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On careful reading of Para 4(a), 4(b), 13, 15 and 16 are nothing to do with this case. However, the averments made in para 3 and 14 are pertaining to this case. The remaining discussions are half of para 16 were pertaining to

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this case. Therefore para 16 is also pertaining to this case. On perusal of the same, even some unnecessary averments made in the impugned order that will not prejudice the case of the appellants, since that is noting to do with this case.

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In remaining paragraphs, the trial court discussed in detail and given sufficient opportunity to the appellants and passed the impugned order. Once the appellants have sought time to file objections to the main petition and have not chosen to file objections to the application filed for appointment of Commissioner and even opportunities given were not availed for filing memo of instructions to the Commissioner and after giving opportunity for filing objections on the Commissioner’s report, now the appellants cannot take such a contention in order to set aside the impugned order.

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On careful reading, there is no prejudice caused to the appellants’ case in view of some unnecessary averments made in the impugned order. On the other hand, the trial court after considering the Commissioner’s report and the memo of instructions filed by the respondent No.1/plaintiff’s counsel, order has been passed and therefore this court did not find any error in passing the impugned order while accepting the Commissioner’s report and division of property by metes and bounds. Therefore the appeal filed by the appellants is devoid of merits. Accordingly appeal is dismissed .

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In view of dismissal of the main appeal, pending IA’s, if any, stand disposed of, as they do

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not survive for consideration.

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SD/(K.NATARAJAN) JUDGE

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KMV List No.: 1 Sl No.: 9

Sri Ravindranath Mane v. Smt. Meera Satyananda Nikam

Case brief

What is this about?

What did the court decide?

Sri Ravindranath Mane v. Smt. Meera Satyananda Nikam

Case brief

What is this about?

What did the court decide?

What the court decided

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