Allowed

Sri. Y. Bheemanna v. Sri. Hanumantarayappa

Karnataka HC18 Sept 2024RFA/86/2024

Case brief

AI extract

What is this about?

Where the trial court decreed a permanent injunction suit on the basis that the defendants failed to cross-examine or rebut, but the order sheet showed the plaintiff and his counsel were repeatedly absent and no effective evidence was led, the High Court held there was total non-application of mind by the trial judge. Without expressing opinion on merits, the appeal was allowed and the matter remitted for fresh disposal from the stage of cross-examination of P.W.1.

What the court decided

AI extract

Sri. Y. Bheemanna Vs Sri. Hanumantarayappa — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:38427 RFA No. 86 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO.86 OF 2024 (INJ)

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BETWEEN:

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SRI. Y. BHEEMANNA AGED ABOUT 73 YEARS, S/O LATE VENKAPPA, NO.82, J.B. KAVAL, KHB COLONY, KRISHNANANDA NAGARA, NANDINI LAYOUT, BANGALORE - 560096

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…APPELLANT

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(BY SRI SATYANARAYANA, ADVOCATE)

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AND:

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SRI. HANUMANTARAYAPPA AGED ABOUT 69 YEARS, S/O LATE BYALAPPA NO. 83, J.B. KAVAL, KHB COLONY, KRISHNANANDA NAGARA, NANDINI LAYOUT, BANGALORE - 560096

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI R.VINAYAKA FOR SRI LAKSHMIKANTH K, ADVOCATES)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 7.10.2023 PASSED IN O.S.NO.8982/2019 ON THE FILE OF IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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

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NC: 2024:KHC:38427 RFA No. 86 of 2024

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Sathyanarayana, learned counsel for the appellant and Sri R. Vinayaka, learned counsel appearing on behalf of Sri Lakshmikanth K, counsel for the respondent.

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Defendant is in the appeal, challenging the validity of judgment passed in O.S.No.8982/2019 dated 07.11.2023, on the file of IX Additional City Civil and Sessions Judge at Bengaluru.

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Facts in brief which are utmost necessary for disposal of the appeal are as under:

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A suit for permanent injunction came to be filed by the plaintiff which was decreed. Learned counsel for the appellant/defendant has filed the copy of order sheet. The amendment was carried out to the plaint and plaintiff failed to amend the plaint. Thereafter the matter was adjourned from time to time and finally on 04.07.2023, the trial Court noted as under and posted the matter to 14.08.2023. The order sheet from 04.07.2023 to 05.09.2023 is culled out hereunder for ready reference;

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NC: 2024:KHC:38427 RFA No. 86 of 2024

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“Case is called at 11.33 a.m. Plaintiff and counsel for plaintiff are absent. No representation. Counsel for defendant is present. PW1 is absent. Case is passed over. Case is called at 03.25 p.m. Plaintiff and counsel for plaintiff are absent. No representation. Counsel for defendant is present. The name of the PW1 is called out in the open court. PW1 is absent. Hence, cross of PW1 is closed. The further evidence of plaintiff is closed. For defendant evidence. Call on 14.08.2023.

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Both parties and their counsels are absent. No representation. For defendant evidence. Call on 05.09.2023.

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Case is called at 11.37 a.m. Plaintiff and counsel for plaintiff are absent. No representation. Defendant is present.”

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When such is the factual aspect of the matter in the impugned judgment, in paragraph No.33, the learned Trial Judge has observed as under:

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“33. By perusing all the documents it is crystal clear that the plaintiff is the absolute owner of plaint schedule property through sale deed dated 12.06.2019 as per Ex.P.1 and the defendants interfered with the peaceful possession and enjoyment of the plaint schedule property of the plaintiffs and he has produced all the documents which are marked as Ex.P.1 to Ex.P.15 to prove his pleadings and defendants not cross-examined P.W.1 nor disputed the documents marked on behalf of the plaintiffs nor they have not given any rebuttal evidence nor produced any

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4 - NC: 2024:KHC:38427 RFA No. 86 of 2024

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documents. The oral and documentary testimony which was not rebutted by the defendants draws an inference that the plaintiffs have proved their case.”

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The very observation of the learned Trial Judge in the aforesaid factual aspects show that there is total inapplication of mind, much less the judicious mind, which calls interference by this Court under Section 96 of Code of Civil Procedure.

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Accordingly, without expressing any further opinion on the merits of the matter, the appeal needs to be allowed and matter needs to be remitted to the trial Court.

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Hence, following:

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ORDER

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(i) Appeal is allowed.

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(ii) Matter is remitted to the Trial Court for fresh disposal in accordance with law from the stage of cross-examination of P.W.1.

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(iii) Parties shall appear before the Trial Court without further notice on 15.10.2024.

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List No.: 1 Sl No.: 33

Sri. Y. Bheemanna v. Sri. Hanumantarayappa

Case brief

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Sri. Y. Bheemanna v. Sri. Hanumantarayappa

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