Suresh Hegde Vs Huchappa

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR ENTIRE RECORDS FROM THE HON'BLE 8^TH ADDITIONAL DISTRICT AND SESSION JUDGE, BENGALURU RURAL AT BENGALURU IN R.A NO. 248/2011 IN RESPECT OF THE ORDER ON I.A NO. XVI AND XVII DATED 06.09.2025 ON THE FILE OF THE HON'BLE 8^TH ADDITIONAL DISTRICT AND SESSION JUDGE, BENGALURU RURAL AT BENGALURU AND ETC .

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HC-KAR

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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

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ORAL ORDER

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The petitioner, who is respondent No.17 in R.A. No.248/2011, is before this Court assailing the impugned order dated 06.09.2025, whereby the application in I.A. No.16 filed by the petitioner / respondent No.17 to discard the evidence / examination-in-chief of PW.1, the deceased appellant - Sri Huchappa, who expired on 02.11.2013 and another application in I.A. No.17 filed by the petitioner seeking permission to withdraw the earlier I.A. filed for recalling of PW.1 and for reopening the case were rejected by the First Appellate Court.

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Heard the learned counsel for the petitioner and learned counsel for respondent Nos.1 to 5.

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A perusal of the material on record will indicate that respondent Nos.1 to 5 are the legal representatives of late Sri Huchappa, who instituted a suit in O.S. No.1356/2008 against the petitioner / defendant No.17 and other defendants for partition and

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HC-KAR

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separate possession of their alleged share in the suit schedule properties and for other reliefs. After contest, the said suit was dismissed vide judgment and decree dated 30.06.2011 passed by the Trial Court. Aggrieved by the said judgment and decree passed

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by the Trial Court, Sri Huchappa preferred an appeal in R.A. No.248/2011. The said appeal was allowed by the First Appellate Court vide judgment and decree dated 29.03.2014. The petitioner who was arrayed as respondent No.17 in the said R.A. No.248/2011 claiming that he was not served with notice of the appeal, filed Misc. No.82/2022 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, 'the CPC') seeking setting aside of the judgment and decree passed by the First Appellate Court in R.A No.248/2011. The First Appellate Court vide order dated 07.03.2023, allowed the said miscellaneous petition and set aside the said judgment and decree dated 29.03.2014 and restored R.A No.248/2011 to the file of the First Appellate Court for disposal on merits. Meanwhile, during the pendency of the appeal, the original plaintiff – Sri Huchappa expired on 02.11.2013 and the respondents 1 to 5, who are his legal representatives approached

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HC-KAR

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this Court in C.R.P No.270/2023, which was disposed of by this Court vide final order dated 29.11.2023, which reads as hereunder:

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"The petitioners have challenged the order dated 07.03.2023 passed by the VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru (henceforth referred to as 'Appellate Court') in Misc.No.82/2022 by which, the petition filed under Order IX Rule 13 read with Section 151 of CPC was allowed and the ex-parte judgment and decree dated 29.03.2014 passed by the Fast Track Court - II, Bangalore Rural District, Bangalore (henceforth referred to as 'First Appellate Court') in R.A.No.248/2011 was set aside.

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2. The predecessor in title of the petitioners herein filed a suit in O.S.No.1356/2008 before the II Additional Senior Civil Judge, Bangalore Rural District, Bangalore, for partition and separate possession of his share in the suit schedule property. The said suit was dismissed in terms of the judgment and decree dated 30.06.2011. An appeal was filed by him in R.A.No.248/2011 before the First Appellate Court. The First Appellate Court noticed that respondent Nos.1 to 16 therein were absent and notice to respondent No.17 was held to be sufficient and consequently after hearing the parties concerned, allowed the appeal in terms of the judgment and decree dated 29.03.2014. The respondent No.17 in R.A.No.248/2011 claiming that he was not served with the notice of the appeal, filed Misc.No.82/2022 before the Appellate Court. The Appellate Court noticed that respondent No.17 in R.A.No.248/2011 was not served with the notice of the appeal and therefore, allowed the

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HC-KAR

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miscellaneous petition and set aside the judgment and decree dated 29.03.2014 passed in R.A.No.248/2011.

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3. Being aggrieved by the said order, the legal representatives of the deceased - plaintiff/appellant in R.A.No.248/2011 have filed this revision petition.

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4. The learned counsel for the petitioners contended that the decree in R.A.No.248/2011 was passed in the year 2014, while respondent No.17 therein has filed the present miscellaneous petition in the year 2022 and he did not satisfactorily explain the delay in filing the miscellaneous petition. He further contends that the notice of the appeal was served on respondent No.17 in R.A.No.248/2011 and that the Appellate Court erroneously held that he was not served with the notice. He further contends that a final decree proceedings was initiated based on the judgment and decree passed in R.A.No.248/2011 and by virtue of the belated miscellaneous petition filed by respondent No.17, he has thrown a spanner into the proceedings in FDP No.29/2014.

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5. Per contra, the learned counsel for respondent No.17 in R.A.No.248/2011 submits that respondent No.17 was not served with the notice of the appeal in R.A.No.248/2011. He further submits that the predecessor of petitioners, who filed R.A.No.248/2011 had expired on 02.11.2013 and therefore, the judgment and decree passed therein on 29.03.2014 was inexecutable as it was passed in favour of a dead person. He therefore, submits that the impugned order passed by the Appellate Court allowing Misc.No.82/2022 does not warrant interference in view of the peculiar facts and circumstances of this case.

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6. I have considered the submissions made by the learned counsel for the petitioners as well as the learned counsel for respondent No.17 in R.A.No.248/2011.

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7. As rightly contended by the learned counsel for the petitioners, the appeal filed in R.A.No.248/2011 was decreed on 29.03.2014. The cause-title of the judgment and decree shows that the notice to respondent No.17 was held to be sufficient. However, respondent No.17 long thereafter i.e., after nearly 8 years, filed Misc.No.82/2022 contending that he came to know of the decree passed in R.A.No.248/2011 after he received a notice in FDP No.29/2014. The Appellate Court proceeded to allow the miscellaneous petition and thereby set aside the decree passed in March, 2014. Though the conduct of respondent No.17 is unacceptable, yet this Court cannot ignore the fact that the predecessor of the petitioners had expired on 02.11.2013 and therefore, it was incumbent upon the petitioners to be impleaded in R.A.No.248/2011. Since that is not done, the decree passed on 29.03.2014 is non-est in the eyes of law.

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8. Therefore, without going into the merits of the contentions urged by the learned counsel for the petitioners, it is appropriate to dispose off this petition by directing the First Appellate Court to dispose off the appeal in R.A.No.248/2011 as expeditiously as possible at any rate within a period of six months from the date of receipt of a certified copy of this order. All contentions are left open.

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9. This petition is disposed off on the above terms.

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HC-KAR

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10. In view of disposal of this petition, pending I.As., if any, do not survive for consideration and the same stand dismissed."

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Subsequent to disposal of C.R.P No.270/2023 by this Court on 29.11.2023, the petitioner filed the instant two applications viz., I.A Nos.16 and 17 to discard the evidence of the original plaintiff / appellant - Sri Huchappa, examined as PW.1 and an application seeking to withdraw the earlier application and to reopen the case. The said applications having been opposed by the respondent Nos.1 to 5/legal representatives of the deceased appellant, the First Appellate Court proceeded to pass the impugned order rejecting both the applications, aggrieved by which, the petitioner / respondent No.17 is before this Court by way of the present writ petition.

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Though several contentions are urged by both sides in support of their respective claims as regards admissibility of evidence of the original plaintiff/appellant (Sri Huchappa – PW.1), having regard to the fact that the appeal in R.A No.248/2011 is still pending consideration, all rival contentions as regards admissibility, probative value, proof, relevance etc. of the evidence of PW.1 would necessarily lie in the realm of appreciation of evidence and

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HC-KAR

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the material on record at the time of final disposal of R.A No.248/2011 and not by way of an interlocutory application, which is impermissible in law.

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Under these circumstances, without expressing any opinion on the merits/demerits of the rival contentions on the evidence of PW.1 (Sri Huchappa), I deem it just and appropriate to dispose of this petition by clarifying that all rival contentions regarding evidence of PW.1 (Sri Huchappa) along with the other material on record would be considered by the First Appellate Court at the time of final disposal of the appeal - R.A. No.248/2011 in accordance with law, within a period of four months from the date of receipt of a copy of this order.

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Subject to the aforesaid clarification, the Petition

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stands disposed of. In view of disposal of the petition, interim applications, if any, stands dismissed.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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SMA/List No.: 2 Sl No.: 10

Suresh Hegde v. Huchappa

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Suresh Hegde v. Huchappa

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