Karnataka High Court
Smt Bindhya R Kumar vs C R Channabasappa on 28 June, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:24260
RFA No. 1070 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR FIRST APPEAL NO.1070 OF 2014 (DEC/INJ)
BETWEEN:
SMT. BINDHYA R. KUMAR,
W/O SRI AELDRED D'COSTA,
AGED ABOUT 40 YEARS,
R/O NO.19, 8TH MAIN ROAD,
CENTRAL EXCISE LAYOUT,
VIJAYANAGAR, BANGALORE - 40.
...APPELLANT
(BY SRI RAGHUNANDANA M.S., ADVOCATE)
AND:
SRI C.R. CHANNABASAPPA,
S/O C. RAJAPPA SHETTY,
AGED ABOUT 55 YEARS,
R/O NO.34, 1ST CROSS,
NAGARABHAVI 2ND STAGE,
BANGALORE - 560 072.
...RESPONDENT
(BY SRI JAVEED S., ADVOCATE)
THIS RFA IS FILED U/SEC.96 OF CPC., AGAINST THE ORDER
DATED 15.0.2014 PASSED IN O.S.NO.25882/2013 ON THE FILE OF
Digitally signed by
GEETHAKUMARI THE XXVIII ADDL. CITY CIVIL JUDGE, MAYO HALL, BANGALORE,
PARLATTAYA S ALLOWING THE APPLICATION U/O-7, RULE-11(d) OF CPC.
Location: High
Court of Karnataka THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal was disposed of on 17.01.2017 by setting aside judgment and decree passed by trial Court and remanding matter back for fresh disposal. This Court had also directed refund Court Fee, if permissible. It was submitted that -2- NC: 2024:KHC:24260 RFA No. 1070 of 2014 after remand, trial Court records were not traceable and there was no progress in suit. In meanwhile, parties have settled matter outside Court. For recording of compromise and since trial Court records are not traceable, application is filed for recalling order dated 17.01.2017.
2. Application is not opposed.
3. Being satisfied with reasons stated, application is allowed.
4. A joint affidavit dated 28.06.2024 is filed by appellant as well as respondent, which read as under:
1. "It is submitted that, the Appellant had filed the suit against the Appellant in O.S.no.25882/2013, on the file of XXXVIII Addl. City Civil Judge, at Mayohall, Bengaluru for seeking cancellation of sale deed dated 08.08.2008 executed by the Appellant in favour of the Respondent. After the service of notice the Respondent had filed the Written Statement along with IA under Order 7 Rule 11 of CPC before the Trial Court.
2. The Hon'ble Trial Court without considering the merits of the case of the Appellant, the plaint in O.S.no.25882/2013 has rejected vide order dated 15.04.2014. Further the Appellant filed the instant Appeal challenging the order of the trial Court. After hearing of the matter that this Hon'ble Court was pleased to allowed the matter and remitted back to the trial Court for fresh consideration vide order dated 17.01.2017.
3. After obtaining the certified copy of the order dated 17.01.2017 passed by this Hon'ble Court in the instant appeal, the Appellant was approached -3- NC: 2024:KHC:24260 RFA No. 1070 of 2014 the Hon'ble Trial Court. Before the trial Court the records in O.S.no.25882/2013 is not found before the trial Court. After that the counsel for the Appellant before the trial Court is requested to the Registry as well as Registrar before the trial Court. After making the several request the records of the said file is not found.
4. Further the Appellant was filed an I.A.no.1/2023 in the instant appeal, under Section 151 of CPC for direction to the trial Court for tracing of the missing records in O.S.no.25882/2013. Further, during the pendency of the instant I.A.no.1/2023, the matter has been amicably settled between the parties.
5. The Appellant is humbly prays that this Hon'ble Court was pleased to the said joint affidavit may kindly be pleased to taken on record. That this Hon'ble Court may kindly be pleased to direct the Trial Court was pleased to refund the Court fees paid the Appellant before trial Court on O.S.no.25882/2013."
5. Learned counsel for parties submitted that there is settlement insofar as subject matter of suit/appeal and further, appellant stated that she does not want to pursue same.
6. Parties are present and are identified by their respective counsel.
7. On interaction, they have stated that terms of joint affidavit have been explained to them and after understanding same, they have affirmed same out of their free will and volition without there being any threat, coercion or undue influence from anybody.
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NC: 2024:KHC:24260 RFA No. 1070 of 2014
8. In view of above, appeal is disposed of in terms of compromise/joint affidavit. Trial Court to examine and refund admissible Court Fee.
Sd/-
JUDGE GRD List No.: 1 Sl No.: 53