Mr James E David vs Smt K D Shameem Banu
2022 Latest Caselaw 8190 Kant

                             1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF JUNE, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               R.F.A.NO.140 OF *2022 (EJE)
BETWEEN
1.     MR. JAMES E DAVID,
       S/O JOHN NATHNIEL ELIAZER,
       AGED 55 YEARS,
       R/AT NO 71, 1ST FLOOR,
       M M ROAD, FRAZER TOWN,
       BANGALORE 560 005.

2.     SAMEER GAFFAR KHAN
       AGED ABOUT 43 YEARS
       SON OF LATE GAFFAR KHAN
       RESIDING AT FLAT NO.301, KHALIDIYA
       PLOT NO.26, W-4, ABU DHABI
       NOW PRESENTLY AT NO.71, 2ND FLOOR
       M.M.ROAD, FRAZER TOWN
       BENGALURU - 560 005
       (IMPLEADED V.C.O. DATED 06.06.2022)
                                                ...APPELLANTS
(BY SRI. S.A.WAJID, ADVOCATE)
  SRI. M.ALLAH BAKASH, ADVOCATE FOR
   IMPLEADING APPLICANT IN IA.2/2022

AND
SMT. K. D. SHAMEEM BANU,
W/O GAFFAR KHAN,
AGED 66 YEARS,
R/AT DOOR NO 71, GROUND FLOOR,
M M ROAD, FRAZER TOWN,
BANGALORE 560 005.
                                               ...RESPONDENT
       (BY   SRI. SRINIVAS BHAT, ADVOCATE)

       * Corrected vide chamber order dated: 24.06.2022
                           2


      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 22.12.2021
PASSED IN O.S.NO.862/2020 ON THE FILE OF THE XX
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE
CITY, DECREEING THE SUIT FOR EVICTION.
     THIS APPEAL COMING ON FOR ORDERS THIS DAY
THROUGH PHYSICAL HEARING, THE COURT DELIVERED THE
FOLLOWING:



                       JUDGMENT

This appeal by the defendant in

O.S.No.862/2020 on the file of XX Additional City Civil

and Sessions Judge, Bengaluru City, is directed

against the impugned judgment and decree dated

22.12.2021 whereby, the said suit for ejectment /

eviction and other reliefs in respect of the suit

schedule immovable property was decreed by the trial

court in favour of the respondent - plaintiff against

the appellant - defendant.

2. During the pendency of the appeal, one

Shri Sameer Gaffar Khan has filed an application in IA

No.2/2022 seeking his impleadment as appellant No.2

to the present appeal. The impleading applicant has

also filed I.A.3/2022 to I.A.5/2022 seeking various

reliefs.

3. Heard learned counsel for the appellant and

learned counsel for the respondent and also the

learned counsel appearing the impleading applicant

and perused the material on record.

4. A perusal of the material on record

including the impugned judgment and decree would

indicate that the respondent -plaintiff instituted the

aforesaid suit for eviction/ejectment of the appellant

from the suit schedule premises and for other reliefs.

The defendant having appeared before the trial court

did not file his written statement or contest the suit.

The plaintiff examined himself as PW-1 and

documentary evidence at Exs.P1 to P10 were marked

on his behalf. Accordingly, the trial court took into

account the unimpeached pleadings and evidence of

the plaintiff and decreed the suit in her favour,

aggrieved by which, appellant - defendant is before

this Court by way of the present appeal.

5. The specific contention urged by the

appellant in the suit as well as before this Court is

that due to bonafide reasons, unavoidable

circumstances and sufficient cause in particular, on

account of his health reasons which involved traveling

out of Bengaluru, the appellant was not in a position

to contact his advocate and give necessary

instructions to defend and contest the suit. It is

submitted that the appellant has a good defence to

urge on merits in the suit and had/at the balance of

convenience is in his favour. It is therefore contended

that if one more opportunity is granted in favour of

the appellant to contest the suit on merits and that

the appellant is ready to abide by the terms and

conditions to be fixed/imposed by this court.

6. Per contra, learned counsel for the plaintiff

submits that despite sufficient opportunity being

granted in favour of the appellant-defendant, he did

not chose to contest the suit and consequently, no

indulgence is to be shown in his favour and the trial

court was fully justified in decreeing the suit in favour

of the respondent-plaintiff by passing the impugned

judgment and decree which does not warrant

interference of this Court in the present appeal.

7. As stated supra, IA No.2/2022 is filed by

the applicant seeking impleadment in the appeal as

appellant No.2 inter alia contending that the

impleading applicant is none other than one of the

children of the respondent-plaintiff and it is submitted

that in addition to the current suit in O.S.No.862/2020

out of which the present appeal arises, there are other

disputes in relation to the suit schedule property

between the impleading applicant, his mother, i.e.,

the respondent herein and other siblings of the

impleading applicant. The details of the said

suits/cases are as under:

i) O.S.No.6849/2019 and Misc. No.1019/2019

- on the file of CCH-11.

ii) O.S.No.4232/2018 - on the file of CCH-53.

iii) O.S.No.8507/2017 on the file of CCH-61.

It is therefore submitted that the impleading applicant

is a proper and necessary party to the present appeal

and that the application in IA No.2/2022 deserves to

be allowed and the impleading applicant is permitted

to enter the array of parties as appellant No.2.

8. After having heard the learned counsel for

the parties and upon perusal of the material on

record, I am of the considered opinion that by

adopting a justice oriented approach and for the

purpose of enabling the appellant - defendant to put

forth his defence and contest the suit on merits,

without expressing any opinion on the merits /

demerits of the rival contentions, I deem it just and

proper to allow the appeal by setting aside the

impugned judgment and decree and by remitting the

matter back to the trial court for reconsideration

afresh in accordance with law.

9. So also, insofar as I.A.No.2/2022 for

impleadment is concerned, it would be just and proper

to dispose of the said application by reserving liberty

in favour of the impleading applicant to put forth his

claim before the trial court which would be considered

in accordance with law after providing an opportunity

to the other parties also.

10. Further, since the other litigations between

the parties are pending as stated supra, liberty would

also have to be reserved in favour of all the parties to

seek transfer of all the cases to a single court by

taking recourse to such remedies as available in law.

11. In the result, I pass the following:-

ORDER

1) The appeal is hereby allowed.

2) The impugned judgment and decree dated

22.12.2021 passed in O.S.No.862/2020 by

the XX Additional City Civil and Sessions

Judge, Bengaluru City, is hereby set aside.

3) The matter is remitted back to the trial court

for reconsideration afresh, in accordance with

law.

4) The parties undertake to appear before the

trial court on 27.06.2022 without awaiting

further notice from the trial court, which is

directed to dispose of the suit as expeditiously

as possible and preferably within a period of

six months commencing from 27.06.2022.

5) Liberty is reserved in favour of the impleading

applicant in I.A.2/2022 to file necessary

application (s) in the suit which shall be

considered and disposed of by the trial court

in accordance with law after providing an

opportunity to the plaintiff and defendant and

hearing them.

6) Liberty is also reserved in favour of all the

parties to seek transfer of all the pending

litigations including the instant

O.S.No.862/2020 to a single court for disposal

by taking recourse to such remedies as

available in law.

SD/-

JUDGE

Bsv/Srl.