Ravikumar vs Smt. Swati Priya
2021 Latest Caselaw 409 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF JANUARY, 2021

                        BEFORE

    THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO

                  R.F.A.No.390/2020

BETWEEN:

1. RAVIKUMAR
S/O KRISHNA REDDY,
AGED ABOUT 45 YEARS.

2. SRI UMESH
S/O KRISHNA REDDY,
AGED ABOUT 43 YEARS.

3. SMT. YELLAMMA
W/O KRISHNA REDDY,
AGED ABOUT 63 YEARS.

4. SRI NARAYANA REDDY
S/O ABBAIAH REDDY,
AGED ABOUT 78 YEARS.

ALL APPELLANTS R/A No.1603,
DEVARACHIKANAHALLI MAIN ROAD,
NEAR VIJAYA BANK LAYOUT,
CHEEMASANDRA,
BENGALURU - 560 076.                  ..APPELLANTS

(BY SRI NIKHIL S.K, ADVOCATE)

AND:

1. SMT. SWATI PRIYA
                              2


W/O MANOJ KUMAR,
AGED ABOUT 37 YEARS,

2. SRI SATISH KUMAR
S/O RAMESH KUMAR,
AGED ABOUT 31 YEARS,

BOTH R/A BO.24,
MANNAT, BTM RESIDENCY
PHASE-2, YELCHENAHALLI
AKSHAYA NAGAR,
BENGALURU - 560 062.                        ..RESPONDENTS

(BY SRI H R SANJEEVE GOWDA, ADVOCATE)


     THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2019
PASSED IN O.S.No.4484/2019 ON THE FILE OF THE XLIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR
PERMANENT INJUNCTION.

     THIS RFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

With the consent of the learned counsel

appearing for the parties, appeal is taken up for final

disposal.

2. Appeal is directed against the Judgment and

decree dated 16.12.2019 passed in O.S.No.4484/2019

by the XLIII Additional City Civil and Sessions Judge,

Bengaluru, wherein the suit of the plaintiffs for

permanent injunction came to be partly decreed and

defendants were permanently restrained from

interfering with the physical peaceful possession and

enjoyment of the suit schedule property by the

plaintiffs. Suit Schedule property is as under:

All that piece and parcel of the residential vacant site property bearing site No.98, presently bearing BBMP Khatha No.351/98, formed by BDA, in Sy.No.50/4, measuring East to West: 18.28 Mtrs. or 60 ft. and North to South: 9.14 Mtrs. or 30 ft., in all measuring 167.07 sq. mtrs., or 1,800 sq. ft. situated in 2nd block, BTM 4th stage of BDA layout and within the limits of BBMP, Bilekahalli Ward No.188, Bengaluru and bounded on the East by : Road

West by : Site No.97 North by: Site No.97/A South by: Site No.99

3. Being aggrieved by the said Judgment and

decree the defendants are in appeal under Section 96

CPC.

4. In order to avoid confusion and overlapping

parties are addressed in accordance with the rankings

held by them in the trial court.

5. The substance of the case is that the schedule

property was allotted to one B.Shivaraja, S/o

Basavaraju by BDA on 14.03.2018. Subsequently,

BDA executed registered sale deed dated 26.03.2018

in respect of the schedule property in favour of

B.Shivaraja. Subsequently possession certificate was

issued by BDA to the allottee and other relevant

entries in the documents are made in the name of

allottee. The said Shivaraja executed registered sale

deed on 12.07.2018 in favour of the plaintiffs and

delivered possession. In this connection, the plaintiffs

claimed being the owners in possession of the

property they apprehended threat from defendants

and sought for injunction. The matter was not

challenged as per the records seen. The written

statement of the defendants not forthcoming nor

plaintiffs were cross examined nor defendants had

their sworn testimony. However to confirm the same

certified copy of the order sheet is not filed.

6. Learned counsel for appellants submit that no

opportunity was given to the defendants. The matter

is decided without the pleadings or evidence of

defendants and submits if opportunity is not given

defendants would suffer irreparable loss and hardship.

7. Learned counsel for respondents would submit that

the defendants have not availed the opportunity

granted to them and planning to drag on the

proceedings.

8. It is not becoming factor to file the incomplete

papers and documents to the court. From reading of

the Judgment it is revealed that the pleadings or

evidence of the plaintiffs is not challenged by

defendants nor defendants adduced evidence. In the

ends of natural justice opportunity may be granted to

the defendants to contest the matter on merits,

however not without imposing cost. Judgment and

decree dated 16.12.2019 passed in O.S.No.4484/2019

is liable to be set aside.

Hence, the following:

ORDER

Appeal is allowed with costs. Judgment and

decree dated 16.12.2019 passed in O.S.No.4484/2019

is set aside. Matter is remanded to trial court. Cost of

Rs.5,000/- to be paid by defendants to plaintiffs

within seven days.

In order to avoid wastage of judicial time parties

are directed to appear before the trial court on

06.02.2021 without waiting for further notice from the

court. The defendants shall file written statement if

any on the first date of hearing and learned trial Judge

shall dispose of the matter as expeditiously as

possible.

Learned counsel for respondent-plaintiffs

submits that there may be direction for early disposal

as the matter is urgent because of the proposal of

construction and raising price of construction

materials.

Considering his submission, learned trial Judge

shall dispose of the matter within an outer limit of six

months.

Sd/-

JUDGE

SBN