Smt C S Yashoda vs Vishwabharathi House
2022 Latest Caselaw 8702 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JUNE, 2022

                      BEFORE

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

            R.F.A. No.8 OF 2022 (DEC)
BETWEEN:

SMT.C.S.YASHODA,
W/O MR.KALYANA GOWDA.G,
AGED ABOUT 60 YEARS,
PRESENTLY R/O. BENAKA,
NO.15/226, 4TH MAIN, 4TH CROSS,
AVALAHALLI BDA EXTENSION,
BANASHANKARI III STAGE,
BANGALORE-85
                                         ... APPELLANT
(BY SRI AJAY J NANDALIKE, ADVOCATE FOR
    SRI K.MANU, ADVOCATE)

AND:

VISHWABHARATHI HOUSE
BUILDING CO-OPERATIVE SOCIETY LTD.,
NO.35, RATNAVILAS ROAD,
BASAVANAGUDI, BANGALORE-04
REPRESENTED BY ITS SECRETARY,
SRI.H.V.VADIRAJ
S/O H.V.VAMANA,
AGED ABOUT 36 YEARS,
HAVING OFFICE AT 35
RATNAVILAS ROAD,
BASAVANAGUDI,
BANGALORE-04.
                                      ... RESPONDENT
(BY SRI B.S.SRINIVAS, ADVOCATE FOR
   SRI B.L.SANJEEV, ADVOCATE)
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     THIS APPEAL IS FILED UNDER ORDER XLI RULE 1 R/W
SECTION 96 OF CPC 1908 AGAINST THE JUDGMENT AND
DECREE DATED 22.01.2020 PASSED IN O.S.NO.7458/2013
ON THE FILE OF THE XLIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR
DECLARATION.

     THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This appeal by the sole defendant in O.S.No.7458/2013

is directed against the impugned judgment and decree dated

22.01.2020 passed by the XLIV City Civil Judge, Bengaluru

(for short "the trial Court"), whereby the said suit for

declaration and other reliefs filed by the respondent-plaintiff

against the appellant-defendant in respect of the suit

schedule immovable property was decreed by the trial Court.

2. Heard learned counsel for the appellant and

learned counsel for the respondent and perused the material

on record.

3. The material on record discloses that the

respondent-plaintiff filed the aforesaid suit for declaration and

other reliefs against the appellant-defendant, who contested

the same by filing her written statement, pursuant to which

the trial Court framed issues and posted the case for trial.

The respondent-Society examined its Secretary as PW.1 and

documentary evidence at Exs.P-1 to Exs.P-5 were marked.

However, the appellant-defendant neither cross-examined

PW.1 nor adduced any oral or documentary evidence on her

behalf. Under these circumstances, the trial Court took into

account the unimpeached, uncontroverted and unchallenged

oral and documentary evidence of the respondent and

proceeded to decree the suit in its favour, aggrieved by

which, the appellant-defendant is before this Court by way of

the present appeal.

4. In addition to urging various contentions in

support its defence, it is contended by the appellant-

defendant that due to oversight and inadvertence coupled

with the covid-19 pandemic exigency and wrong

noting/entering of the date of hearing in the office of her

counsel, it was not possible for the appellant to appear before

the trial Court and take necessary steps to cross-examine

PW.1 and adduce evidence on her behalf. It is contended

that the appellant has a good case to urge on merits and the

balance of convenience is in her favour. In this appeal, the

appellant has filed an application, I.A.No.1/2022 under Order

XLI Rule 27 CPC seeking permission to adduce additional

evidence by producing several documents, which according to

her could not be produced before the trial Court in support of

her defence, despite exercise of due diligence on her part. It

is contended that the said document were relevant and

material for the purpose of establishing the defence of the

appellant and for the adjudication of the issues in controversy

between the parties and that the inability and omission on the

part of the appellant to effectively and properly defend the

suit before the trial Court and cross-examine PW.1 and

adduce evidence on her behalf was due to bonafide reasons,

unavoidable circumstances and sufficient cause. It is

therefore contended that another opportunity has to be

granted in favour of the appellant to defend the suit

effectively by permitting her to adduce evidence and cross-

examine PW.1 and other witnesses to be examined by the

plaintiff by allowing I.A.No.1/2022 and by setting aside the

impugned judgment and decree passed by the trial Court and

remitting the matter back to the trial Court for re-

consideration afresh in accordance with law.

5. Per contra, it is contended on behalf of the

respondent that despite sufficient opportunity, the appellant

did not diligently defend the suit before the trial Court, which

has proceeded to pass the impugned judgment and decree,

which is just, fair and proper and the same does not warrant

interference in this appeal, which is liable to be dismissed.

6. I have given my anxious consideration to the rival

contentions and perused the material on record.

7. The following points arise for my consideration:

            i.     Whether    I.A.No.1/2022          filed   by    the
                   appellant under Order 41 Rule 27 CPC
                   deserves to be allowed?

            ii.    Whether   the    impugned        judgment       and

decree passed by the trial Court warrants interference by this Court?

Re. Point Nos.i and ii:

8. As stated supra, it is the specific contention of the

appellant that she had filed a detailed written statement in

the suit not only controverting the plaint averments, but also

pointing out that the suit itself was not maintainable and that

she was the absolute owner in lawful and peaceful possession

and enjoyment of the suit schedule property and the plaintiff

did not have any manner of right, title, interest and

possession over the property and consequently, its claim was

liable to be rejected. It is also contended that despite

exercise of due diligence and due to oversight and

inadvertence coupled with the covid-19 pandemic exigency

and wrong noting/entering of the date of hearing in the office

of her counsel, it was not possible for the appellant to appear

before the trial Court and take necessary steps to cross-

examine PW.1 and adduce evidence on her behalf and as

such, the documents produced by the appellant along with

I.A.No.1/2022 are relevant and material for the purpose of

not only enabling the appellant to substantiate her defence

but also for effective adjudication of this appeal and the

issues in controversy between the parties.

9. In this context, a perusal of the written statement

and the documents produced by the appellant along with

I.A.No.1/2022 will clearly indicate that the said documents

are relevant and material to effectively adjudicate the present

appeal as well as to enable the appellant to substantiate her

defence. Under these circumstances, though several

contentions have been urged by both sides on the merits of

their respective claims, having regard to the nature of the

suit and the controversy involved between the parties as

borne out from the material on record and by adopting justice

oriented approach and without expressing any opinion on the

merits and demerits of the rival contentions, I deem it just

and proper to allow I.A.No.1/2022 and permit the appellant

to produce additional evidence. Accordingly, I.A.No.1/2022 is

allowed.

10. Consequent upon permitting the appellant to

adduce additional evidence and in view of the specific

assertion on the part of the appellant that her inability to

contest the suit before the trial Court by cross-examining

PW.1 and adduce oral and documentary evidence on her

behalf, I also deem it appropriate to set aside the impugned

judgment and decree passed by the trial Court and remit the

matter back to the trial Court for reconsideration afresh in

accordance with law.

Point Nos.i and ii are answered accordingly.

11. In the result, I pass the following:

ORDER

i. The appeal is hereby allowed.

ii. The impugned judgment and decree dated

22.01.2020 passed in O.S.No.7458/2013 by the

learned XLIV Additional City Civil and Sessions

Judge, Bengaluru (CCH-45) is hereby set aside.

iii. The matter is remitted back to the trial Court for

reconsideration afresh in accordance with law.

iv. Liberty is reserved in favour of the appellant to

cross-examine the plaintiff and its witnesses.

v. Liberty is also reserved in favour of the appellant-

defendant to adduce oral and documentary

evidence on her side.

vi. It is needless state that liberty is also reserved in

favour of the respondent - Society to adduce

further evidence and also cross-examine the

appellant-defendant and her witnesses.

vii. Registry is directed to transmit I.A.No.1/2022 and

documents produced along with same to the trial

Court.

viii. The trial Court is directed to dispose of the suit as

expeditiously as possible and preferably within six

months from the date of receipt of a copy of this

order.

ix. Both parties undertake to appear before the trial

Court on 04.07.2022 without awaiting further

notice from the Court.

x. All rival contentions are kept open and no opinion

is expressed on the same.

Sd/-

JUDGE

SSB