Gangamma Vs Sharadamma

THIS RFA IS FILED U/SEC 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 02.9.2013 PASSED IN R.A.NO.259/2010 ON THE FILE OF THE II ADDL. SESSIONS AND SPECIAL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.06.2010 PASSED IN O.S.NO.1139/2004 ON THE FILE OF THE PRL. II CIVIL JUDGE (JR. DVN.) BANGALORE RURAL DISTRICT, BANGALORE.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 02.09.2013 passed in R.A.No.259/2010 by the learned II Additional District and Sessions Judge, Bangalore Rural District, Bangalore. (‘First Appellate Court’ for short).

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For convenience, the parties are referred to based on their rankings before the trial court. The appellant was the plaintiff and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for declaration and permanent injunction, declaring that the plaintiff is the legally wedded wife of the

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deceased Hanumantharayappa and restraining the defendants, her agents, etc from receiving the service benefits of the deceased Hanumantharayappa from defendant No.2.

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It is the case of the plaintiff that the plaintiff is the legally wedded wife of the deceased Hanumantharayappa and their marriage was performed on 07.05.1974 as per the customs prevailed in their community and they lived together as husband and wife. Hanumantharayappa joined the services of the police department as police constable and subsequently by virtue of promotion, he became the Sub-Inspector of police. During his service, as Sub-Inspector he served in various places, and lastly he was transferred to KGF. On 21.09.2004, he met with an accident and died leaving behind the plaintiff as her LR. After his demise, defendant No.1 came forward to claim that she was the wife of the deceased Hanumantharayappa and she claimed the

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entire service benefits i.e., family pension, death relief fund, etc. After coming to the notice of the said fact, the plaintiff filed an application before defendant No.2 narrating the factual aspects that the plaintiff is the legally wedded wife of the deceased Hanumantharayappa. It is contended that defendant No.1 is making a false claim that she is the wife of deceased Hanumantharayappa only with an intention to knock off the service benefits of the deceased Hanumanthrayappa. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction.

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Defendant No.1 filed a written statement denying the averments made in the plaint and it is contended that the plaintiff is not a legally wedded wife of the deceased Hanumantharayappa, and it is contended that defendant No.1 is the legally wedded wife of the deceased Hanumantharayappa and the plaintiff created the documents to knock of the terminal

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benefits. It is contended that defendant No.1 alone is

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entitle for the service benefits of the deceased Hanumantharayappa and they lived together at Doddabelavadi village and out of their wedlock they got three sons and name of defendant No.1 is shown as nominee in the service records of the deceased Hanumantharayappa. Hence, there is no cause of action to file the suit. The suit filed by the plaintiff is liable to be dismissed. Hence, on these grounds, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties framed the relevant issues and additional issues.

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i. Whether the plaintiff proves that she is the legally wedded wife of the deceased Hanumantharayappa?

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ii. Whether the plaintiff further proves that she is entitled for the service benefits of the deceased Hanumantharayappa from the 2^nd defendant?

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iii. Whether the plaintiff is entitled for the reliefs claimed?

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iv. What order or decree?

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Additional Issue No.1:

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i. Whether the plaintiff proves that the 1^st defendant is making efforts to get the service benefit of deceased Hanumantharayappa on the false ground that she is the legally wedded wife of Hanumantharayappa?

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The plaintiff to substantiate her case, examined herself as PW.1 and got examined 3 witnesses as PWs.2 to 4 and marked 20 documents as Exs.P1 to P20. In rebuttal, defendant No.1 was examined as DW.1, examined 4 witnesses as DWs.2 to 5 and marked 10 documents as Exs.D1 to D10.

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The trial Court after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 3 and additional issue No.1 in the affirmative, issue No.4 as per the final order.

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The suit of the plaintiff was decreed vide judgment dated 09.06.2010 declaring that the plaintiff is the legally wedded wife of the deceased Hanumantharayappa and defendant No.1, her agents, etc were restrained permanently from receiving the service benefits of deceased Hanumantharayappa from defendant No.2.

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Defendant No.1, aggrieved by the judgment and decree passed in O.S.No.1139/2004 preferred an appeal in R.A.No.259/2010 on the file of learned II Additional District and Sessions Judge, Bangalore Rural District, Bangalore.

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The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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i. Whether the 1^st defendant is able to prove that she is the legally wedded wife of H.Hanumantharayappa on the

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basis of additional evidence produced before this appellate Court?

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ii. Whether the impugned judgment and decree calls for interference by this Court?

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iii. To what order?

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During the pendency of the first appeal, the defendant filed an application for production of additional evidence. The said application was allowed

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by the first Appellate Court and recorded the evidence of DW.1 and got marked documents from Ex.D11 to D34 and also DW.6 was examined before the first Appellate Court. The first Appellate Court after reassessing the entire evidence on record answered point Nos.1 and 2 in the affirmative, point No.3 as per the final order.

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The appeal was allowed with costs and the judgment and decree passed in O.S.No.1139/2004 dated 09.06.2010 on the file of Principal Additional Civil Judge (Jr.Dn.) Bangalore Rural District, Bangalore,

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was set aside and consequently dismissed the suit of the plaintiff, with costs.

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The plaintiff, aggrieved by the judgment and decree passed in R.A.No.259/2010 dated 02.09.2013 on the file of learned II Additional District and Sessions Judge, Bangalore Rural District, Bangalore, filed this Regular Second Appeal.

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Heard the learned counsel for the plaintiff and learned Additional Government Advocate for the defendants.

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Learned counsel for the plaintiff submits that the first Appellate Court has erred in coming into a conclusion that Ex.D26 to 29 wherein the nominees, beneficiaries are shown as defendant No.1 and her 3 sons. Defendant No.1 filed the applications for production of additional evidence in I.A.Nos.2 and 3. The said applications came to be allowed vide order dated 20.09.2010 and 23.09.2010. The plaintiff

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aggrieved by the order passed on I.A.Nos.2 and 3 in

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R.A.No.259/2010, filed the writ petitions in W.P.No.37738-37739/2010. He submits that this Court, vide order dated 24.07.2012, set aside the order passed by the first Appellate Court in R.A.No.259/2010 and directed the first Appellate Court to reconsider I.A.Nos.2 and 3. He submits that the first Appellate Court dismissed I.A.Nos.2 and 3 for non-prosecution. He submits that thus, the first Appellate Court committed an error in relying upon those additional evidence, and the first Appellate Court could not have relied upon the documents i.e., Ex.D11 to D27. Hence, on these grounds, prays to allow the appeal.

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Per contra , learned counsel for defendant No.1 supported the impugned judgment and contended that defendant No.1 is the legally wedded wife of deceased Hanumantharayappa and the name of defendant No.1 and her sons were shown as nominee

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in the records. The first Appellate Court has rightly passed the impugned judgment, based on Exs.D11 to D27. Hence, on these grounds, prays to dismiss the appeal.

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Per contra , learned Additional Government Advocate prays to dispose of the appeal.

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This Court vide order dated 20.06.2016, admitted the appeal to consider the following Substantial questions of law:

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1. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court while relying upon the documents produced under Order 41 Rue 27 of CPC when the very application for additional documents is rejected on 31.03.2013?

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1. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court accepting the evidence of DW1, DW6 and material documents Ex.D16 to D34?

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1. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the present case?

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Reg. Substantial question of law No.1:

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The plaintiff filed a suit for declaration to declare that

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she is the legally wedded wife of the deceased Hanumantharayappa and for permanent injunction. The plaintiff got examined herself as PW.1 and she reiterated the plaint averments in the examinationin-chief and produced the documents marked as Ex.P1 to P20. Further the plaintiff also examined 3 witnesses as PWs.2 and 4, to prove that she is the

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legally wedded wife of deceased Hanumantharayappa.

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In rebuttal, defendant No.1 was examined as DW.1, she reiterated the written statement averments in the examination-in-chief and produced the documents Ex.D1 to D10. Defendant No.1 examined 4 witnesses as DW.2 to DW.5, to prove that she is

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the legally wedded wife of the deceased

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Hanumantharayappa and out of their wedlock 3 children were born.

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The trial Court, appreciating the entire evidence on record, decreed the suit of the plaintiff and declared that the plaintiff is the legally wedded wife of the deceased Hanumantharayappa and restrained the defendant No.1 from receiving the service benefits.

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Defendant No.1, aggrieved by the judgment and decree passed in O.S.No.1139/2004, preferred an appeal in R.A.No.259/2010 on the file of learned II Additional District and Sessions Judge, Bangalore Rural, Bangalore District.

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During pendency of the said appeal, defendant No.1 filed applications in I.A.Nos.2 and 3 for production of additional evidence. The said applications came to be allowed vide orders dated 20.09.2010 and 23.09.2010. The plaintiff aggrieved by the orders

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passed on I.A.Nos.2 and 3 preferred the writ petitions in W.P.No.37738-37739/2010. During the pendency of the writ petitions, the first Appellate Court recorded the evidence of DW.1 and DW.6 and marked Ex.D11 to D34. Subsequently, after recording the evidence, this Court vide order dated 24.07.2012 allowed the writ petition and set aside the orders on I.A.Nos.2 and 3 and directed the first Appellate Court to reconsider and rehear I.A.Nos.2 and 3 in accordance with law and pass an appropriate order, within 4 weeks from the date of receipt of copy of the order.

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The first Appellate Court posted the matter for rehearing on I.A.Nos.2 and 3 on 16.01.2013. The matter was listed on 16.01.2013, wherein the first Appellate Court dismissed I.A.Nos.2 and 3 for nonprosecution and thereafter heard the matter on 17.04.2013. The first Appellate Court allowed the appeal vide judgment dated 02.09.2013.

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From the perusal of the records of R.A.No.259/2010,

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it discloses that after dismissal of I.As, the first Appellate Court allowed the appeal and there is no interim order passed by this Court in the aforesaid writ petitions. The first Appellate Court recorded the evidence of DW.1 and DW.6 and got marked documents Ex.D11 to D34. Subsequently, this Court in W.P.Nos.37738-37739/2010 allowed the writ petitions dated 24.07.2012 and directed the first Appellate Court to rehear the applications I.A.Nos.2 and 3. The first Appellate Court has dismissed I.A.Nos.2 and 3 for non-prosecution. The first Appellate Court has relied upon the documents marked through DW.1 and DW.6. The first Appellate Court committed an error in relying upon the documents marked as Exs.D11 to D34, because the evidence was recorded based on the orders passed on I.A.Nos.2 and 3. When the order itself was set

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aside, any evidence recorded on I.A.Nos.2 and 3

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does not hold any water.

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The first Appellate Court committed an error in placing reliance on the documents and reversed the judgment and decree passed by the trial Court. The procedure adopted by the first Appellate Court is contrary to the orders passed by this Court in the aforesaid writ petitions. Hence, on these grounds, the impugned judgment is liable to be set aside. In view of the above discussion, I answer substantial question of law No.1 in the negative.

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Reg. Substantial question of law No.2:

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As the matter requires reconsideration by the first Appellate Court, the substantial question of law No.2 does not survive for consideration.

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Reg. Substantial question of law No.3:

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As observed above, in substantial question of law

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No.1 though the first Appellate Court committed an

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error in placing reliance on the additional documents, the applications I.A.Nos.2 and 3 came to be rejected. Hence, the judgment and decree passed by the first Appellate Court is perverse, accordingly, I answer the substantial question of law No.3 in the negative.

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Accordingly, I proceed to pass the following order:

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ORDER

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i. The Regular Second Appeal is allowed .

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ii. The judgment and decree dated 02.09.2013 passed in R.A.No.259/2010 by the learned II Additional District and Sessions Judge, Bangalore Rural District, Bangalore, is set aside.

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iii. R.A.No.259/2010 is restored to its original file.

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iv. The first Appellate Court is directed to

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pass the appropriate judgment without considering the documents marked through DW.1 and DW.6 in the appeal and

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pass an appropriate judgment in

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accordance with law.

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v. Liberty is reserved to defendant No.1 to make an application for recalling the order on I.A.Nos.2 and 3. If such an application is filed, the first Appellate Court is directed to consider the same and pass the appropriate orders in accordance with law.

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vi. All the contentions of the parties are kept open. vii. The parties are directed to appear before the first Appellate Court on 07.1.2026 , without awaiting further

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notice.

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viii. Office is directed to transmit the records to the first Appellate Court forthwith.

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