Allowed

Jolly Stephen v. Mr. Thomas Kuruvilla

Karnataka HC2 Apr 2026RFA/249/2023

Case brief

AI extract

What is this about?

First appeal against dismissal of a suit for perpetual injunction over exclusive possession of a terrace. The plaintiff's cross-examination had been closed after he failed to appear on 24.03.2021 owing to the Covid-19 pandemic and travel restrictions. The High Court accepted this as sufficient cause, allowed the appeal, set aside the decree, restored the suit to the trial court and directed expedi

What the court decided

AI extract

Jolly Stephen Vs Mr. Thomas Kuruvilla — Property and Title | Karnataka HC (2026)

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NC: 2026:KHC:18053 RFA No. 249 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF APRIL, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE R. NATARAJ REGULAR FIRST APPEAL NO.249 OF 2023 (INJ)

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BETWEEN:

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JOLLY STEPHEN S/O. K.J. STEPHEN AGED ABOUT 59 YEARS R/AT. APARTMENT NO.304 (3D) 3^RD FLOOR, "PRANAVAH APPLE BLOSSOM", BELLANDUR VILLAGE, VARTHUR HOBLI, BENGALURU SOUTH TALUK-560103.

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&APPELLANT

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(BY SRI. S. KALYAN BASAVARAJ, ADVOCATE)

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AND:

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Digitally signed by HEMALATHA J Location: HIGH COURT OF KARNATAKA

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MR. THOMAS KURUVILLA FATHER'S NAME NOT KNOWN AGED ABOUT 48 YEARS R/AT. APARTMENT NO.301, 3^RD FLOOR, "PRANAVAH APPLE BLOSSOM", BELLANDUR VILLAGE, VARTHUR HOBLI, BENGALURU SOUTH TALUK-560103.

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(BY SRI. THOMAS VIJAY PETER, ADVOCATE)

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&RESPONDENT

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.04.2022 PASSED IN O.S.NO.25242/2018 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDE, MAYOHALL UNIT BANGALORE, DISMISSING THE SUIT FOR INJUNCTION.

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NC: 2026:KHC:18053 RFA No. 249 of 2023

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL JUDGMENT

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The appellant has challenged the judgment and decree passed in O.S.No.25242/2018 dated 16.04.2022 by XIII Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Trial Court' for short) by which, the suit for perpetual injunction was dismissed.

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2 (i). The appellant filed O.S.No.25242/2018 for perpetual injunction restraining the respondent from using the schedule 'C' property. It appears that the schedule 'C' property is a terrace over the schedule 'A' property. The appellant claimed that he had exclusive access to the schedule 'C' property and that the same is in his exclusive possession and enjoyment from the date of purchase of the schedule 'A' property.

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(ii). He claimed that the respondent had no right, title or interest over the schedule 'C' property and that he was interfering with his possession. He therefore sought a decree of

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NC: 2026:KHC:18053 RFA No. 249 of 2023

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HC-KAR

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perpetual injunction restraining the respondent from interfering with his possession and enjoyment of the schedule 'C' property.

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(iii). The suit was contested by the defendant, who denied that the plaintiff was the owner of schedule 'C' property. He also denied that the plaintiff was in exclusive ownership and possession of schedule 'C' property and contended that the same forms part of the terrace and is therefore commonly owned by all the apartment owners.

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(iv). The Trial Court framed issues and set down the case for recording the evidence. The appellant was examined as PW.1 and the case was thereafter listed on 24.03.2021 for his cross-examination. However, the appellant was not present and hence his cross-examination was closed on 24.03.2021 and the case was posted for defendant's evidence. The defendant also did not lead any oral or documentary evidence and consequently, the Trial Court dismissed the suit in terms of its impugned judgment and decree.

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Being aggrieved by the same, the appellant is before this Court.

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NC: 2026:KHC:18053 RFA No. 249 of 2023

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HC-KAR

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The learned counsel for the appellant submits that the appellant could not appear before the Trial Court on 24.03.2021 due to the Covid-19 pandemic which was in the last leg, as he was residing in Kerala at that time. He therefore submits that the appellant could not be present before the Trial Court on 24.03.2021. However, he submits that if an opportunity is granted to the appellant, he would present himself for cross-examination.

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The learned counsel for the respondent, however, contended that even if the plaintiff's documents are taken into account, there is nothing to show that the plaintiff is the exclusive owner in possession and enjoyment of the schedule 'C' property. He contends that the schedule 'C' property is held in common by all the apartment owners and therefore, no useful purpose would be served in restoring the appeal.

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I have considered the submissions made by the

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learned counsel for the appellant and the learned counsel for the respondent.

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The only point that arises for consideration in this

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appeal is:

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NC: 2026:KHC:18053 RFA No. 249 of 2023

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HC-KAR

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"Whether the appellant deserves to be granted another opportunity to present himself for cross-examination and to pursue the suit on merits?"

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It is not in dispute that the appellant was examined as PW.1 and he marked a document as Ex.P1. The case was thereafter listed on 24.03.2021 for cross-examination. However, as rightly contended by learned counsel for the appellant, the country was gripped by the Covid-19 pandemic and during March 2021, restrictions were still in force. The appellant claims that he was residing in Kerala at that time and therefore, could not have travelled to Bengaluru to attend the Court. Therefore, the reason assigned for not presenting himself for cross-examination is just and proper and deserves to be considered favourably.

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In that view of the matter, the appeal is allowed and the impugned judgment and decree passed by the Trial Court in O.S.No.25242/2018 dated 16.04.2022 is set aside and the suit is restored on the file of the Trial Court.

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NC: 2026:KHC:18053 RFA No. 249 of 2023

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HC-KAR

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The parties shall appear before the Trial Court on 15.04.2026 . The appellant shall without fail present himself for cross-examination. The Trial Court shall take up the matter as expeditiously as possible, and dispose off the suit within a period of six months from the date of conclusion of the evidence.

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In view of disposal of main appeal, pending interlocutory applications, if any, do not survive for consideration and the same stand disposed of.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 21

Jolly Stephen v. Mr. Thomas Kuruvilla

Case brief

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Jolly Stephen v. Mr. Thomas Kuruvilla

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