Sri.L. Srinivasa Rao Vs Smt. Asha Singh

SMT. ASHA SINGH W/O SRI. P.R. AMARNATH SINGH AGED ABOUT 61 YEARS, R/AT NO.37, II FLOOR, 7^TH CROSS, SOMESHWARAPURA, CAMBRIDGE LAYOUT, ULSOOR, BENGALURU - 560 008.

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…RESPONDENT

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(VIDE ORDER DATED: 03.07.2024, SERVICE OF NOTICE TO RESPONDENT IS HELD SUFFICIENT)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 11^TH SEPTEMBER, 2019 PASSED IN ORIGINAL SUIT NO.25390 OF 2019 ON THE FILE OF THE LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-73), DISMISSING THE SUIT FILED FOR DECLARATION.

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

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NC: 2025:KHC:9393 RFA NO.2211 OF 2019

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CORAM: HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR

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ORAL JUDGMENT

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This appeal is preferred by the unsuccessful plaintiff in O.S.No.25390/2019 pending on the file of LXXII Addl. City Civil and Sessions Judge, Bengaluru, challenging the judgment and decree dated 11.09.2019, whereby the said suit filed by the appellant/plaintiff for declaration that the plaintiff was the exclusive owner entitled to use the suit schedule 'B' property exclusively for himself and other reliefs was dismissed by the trial court.

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Heard learned counsel for the appellant and perused the material on record. The respondent having been served with the notice of the appeal has chosen to remain absent and unrepresented and not contested the appeal.

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In this context, it is relevant to state that the respondent who was the defendant before the Trial Court remained ex-parte in the suit also and did not contest the suit.

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A perusal of the material on record will indicate that the appellant/plaintiff instituted the aforesaid suit for declaration that the plaintiff was exclusive owner entitled to use the suit schedule

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NC: 2025:KHC:9393 RFA NO.2211 OF 2019

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'B' property and for other reliefs. As per the plaint averments, the appellant/plaintiff purchased the residential apartment of ground floor as per registered Sale Deed dated 18.01.2017 and 3^rd Floor and terrace rights as per registered Sale Deed dated 25.05.2017 executed by the respondent/defendant in Sy.No.24/4 situated at Haudin Road, Ulsoor, Bengaluru. It was contended that though the respondent/defendant had actually conveyed/sold the residential apartments together with car parking area which is described as schedule 'B' property as indicated in the Sale Agreement dated 07.07.2010 (Exhibit-P4), due to oversight and inadvertence, the said car parking area described as schedule 'B' property was not mentioned in the aforesaid two registered Sale Deeds executed by the respondent-defendant in favour of the appellant/plaintiff. It is specifically contended that the appellant/plaintiff has actually purchased the two residential apartments together with the car parking area and since, the same was not mentioned in the Sale Deeds due to oversight and inadvertence and as such, the appellant/plaintiff instituted the aforesaid suit for declaration of his title, ownership and possession over the car parking area by describing the same as schedule 'B' property in the plaint.

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NC: 2025:KHC:9393 RFA NO.2211 OF 2019

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The appellant/plaintiff examined himself as PW-1 and got

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marked 9 documents as Exs.P1 to P9. The respondent/defendant having remained ex-parte as stated above, neither cross-examined PW-1 nor adduced any oral or documentary evidence.

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The Trial Court, after hearing the appellant/plaintiff had framed the following three points for its consideration:

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"Point No.1: Does the Plaintiff proves that, he is the owner in possession of the suit schedule B property?

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Point No.2: Does the Plaintiff is entitled for the relief of declaration?

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Point No.3: What Order or Decree?"

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After hearing the appellant, the trial court proceeded to dismiss the suit of the appellant – plaintiff by passing the impugned judgment and decree which is assailed in the present appeal.

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The only point that arises for consideration in the present appeal is, whether the impugned judgment and decree passed by the trial court warrants interference by this Court in the present appeal.

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A perusal of the findings recorded by the Trial Court in the impugned judgment and decree will indicate that the sole

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ground on which the Trial Court dismissed the suit of the plaintiff for declaration was by coming to the conclusion that there is no mention about the transfer and sale of the schedule 'B' property being the car parking area in favour of the appellant/plaintiff. Further, during the pendency of the present appeal, the respondent/defendant had purportedly leased out the schedule 'B' property in favour of one Mr. Zahid Shaik Sab, Aged about 46 years, No.5102, Purvankara Fountain Square, Marathahalli, Bengaluru-560037. Under these circumstances, the appellant/ plaintiff had filed application I.A.2/2022 under Order I Rule 10 read with Order XXII Rule 10 CPC seeking impleadment of the aforesaid Mr. Zahid Shaik Sab as additional respondent/defendant to the present appeal as well as the suit.

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So also, the appellant/plaintiff filed an application I.A.3/2022 under Order VI Rule 17 CPC seeking amendment of the plaint by incorporating additional pleadings and reliefs. A perusal of the affidavit filed in support of I.A.No.3/2022 will clearly indicate that having regard to the detailed reasons and particulars contained in the affidavit filed in support of IA.No.3/2022, I am of the considered opinion that the proposed amendment is relevant

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NC: 2025:KHC:9393 RFA NO.2211 OF 2019

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and necessary for the purpose of adjudication of the issues in controversy between the parties as enunciated by the Apex Court in the case of LIFE INSURANCE CORPORATION OF INDIA vs.

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SANJEEV BUILDERS PRIVATE LIMITED AND ANOTHER - AIR 2022 SC 4256 . Under these circumstances, I.A.No.3/2022 deserves to be allowed.

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The next point that arises for consideration is the procedure to be followed for the purpose of disposal of the appeal upon allowing I.A.3/2022.

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As stated supra, the proposed amendment was not part of the plaint at the time of impugned judgment and decree passed by the trial court. However, in view of allowing application I.A.3/2022 as stated above, it would be just and necessary to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh and in accordance with law.

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Insofar as the application I.A.2/2022 for impleadment of the proposed additional defendant No.2 – Zahid Shaik Sab is concerned, in view of allowing of I.A.3/2022 and the matter being

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NC: 2025:KHC:9393 RFA NO.2211 OF 2019

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remitted back to the trial court for reconsideration afresh in accordance with law, it would be necessary to transmit I.A.3/2022 to the trial court for consideration and disposal in accordance with

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law.

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In the result, I pass the following:

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ORDER

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(i) Appeal is hereby allowed.

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(ii) The impugned judgment and decree dated 11.09.2019 passed in O.S.No.25390/2019 pending on the file of LXXII Additional City Civil and Sessions Judge, Bengaluru is hereby set aside;

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(iii) The matter is remitted back to the Trial Court for reconsideration afresh in accordance with law;

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(iv) Application I.A.No.3/2022 filed by the appellant for amendment of the plaint is hereby allowed and Trial Court is directed to permit the appellant/plaintiff to carryout amendment to the plaint as sought for by him in the application IA.3/2022 and proceed further in accordance with law;

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(v) Application I.A.No.2/2022 filed by the appellant for impleadment of Mr. Zahid Shaik Sab as additional defendant No.2 is hereby transmitted/remitted back to the Trial Court, which shall

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consider and pass appropriate orders on I.A.No.2/2022 in accordance with law.

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(vi) The appellant shall appear before the Trial Court without awaiting further notice on 26.03.2025.

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(vii) Registry is directed to send back the Trial Court Records along with applications IA Nos.2/2022 and 3/2022 to the Trial Court forthwith without any delay.

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(viii) The Trial Court shall dispose of the suit as expeditiously

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as possible;

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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ARK/SRL List No.: 1 Sl No.: 22

Sri.L. Srinivasa Rao v. Smt. Asha Singh

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Sri.L. Srinivasa Rao v. Smt. Asha Singh

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