C Motilal vs Ansar
2022 Latest Caselaw 9063 Kant

                              -1-



       IN THE HIGH COURT OF KARNATAKA, BENGALURU

          DATED THIS THE 17TH DAY OF JUNE, 2022

                            BEFORE

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

                   RFA NO.53/2021(POS)


BETWEEN:

C MOTILAL
S/O CHANDANMAL,
AGED ABOUT 57 YEARS,
PORP: JANANIKA,
NO.1, GROUND FLOOR,
GURIKAR RAMANAIK LANE,
S.P.ROAD CROSS,
BENGALURU 560002
                                            ...APPELLANT

(BY SRI. VEDACHALA M V, ADVOCATE)


AND:

ANSAR
(SINCE DEAD BY LRs,
i.e., PLAINTIFFS 2,4 TO 7
ALREADY ON RECORD)

1.     SMT AHMEDUNNISA,
       D/O LATE SYED HUSSIAN,
       AGED ABOUT 62 YEARS,

       SMT HAMEEDUNNISA
       (SINCE DEAD BY LRS
       i.e., PLAINTIFFS 2,4 TO 7
       ALREADY ON RECORD)
                            -2-



2.    SYED MAHMOOD,
      S/O.LATE SYED HUSSAIN,
      AGED ABOUT 58 YERS,

3.    SMT NOORUNNISA
      D/O LATE SYED HUSSAIN
      AGED ABOUT 45 YEARS,

4.    SMT. GHOUSEUNNISA
      D/O LATE SYED HUSSAIN,
      AGED ABOUT 42 YEARS

5.    JAMEEL
      S/O LATE SYED HUSSAIN
      AGED ABOUT 45 YEARS

      ALL ARE R/AT NO.2
      GURIKAR RAMANAIK LANE
      S.P.ROAD CROSS,
      BENGALURU
                                          ...RESPONDENTS

(BY SRI. D.G. CHINNAPPA GOWDA, ADVOCATE
     FOR C/R1, R3 TO R5;
     V/O/DT. 12.1.2022, IT IS NOTED THAT R2
     IS DEAD AND LRs ARE ALREADY ON RECORD)


      THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ
WITH SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 10.03.2020 PASSED IN OS.No.1349/2017 ON
THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE
SUIT FOR POSSESSION AND DAMAGES.


      THIS RFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
                                    -3-




                            JUDGMENT

This appeal by the defendant in O.S.No.1349/2017 is

directed against the impugned judgment and decree dated

10.03.2020 passed by the XLIII Addl. City Civil & Sessions

Judge, Bengaluru, whereby the said suit for possession,

damages and other reliefs in respect of suit schedule

immovable properties was decreed in favour of respondents-

plaintiffs and against appellant-defendant.

2. Heard Sri.M.V.Vedachala, learned counsel

appearing for appellant-defendant and Sri.D.G.Chinnappa

Gowda, learned counsel appearing for respondents-plaintiffs.

Perused the material on record.

3. The material on record disclose that respondents-

plaintiffs instituted the aforesaid suit seeking possession,

damages, etc., in respect of suit schedule immovable

properties against the appellant-defendant. Despite having

entered appearance in the suit and filing written statement,

defendant did not pursue the suit further and never cross

examined the plaintiffs and their witnesses nor adduced any

oral or documentary evidence. Trial court took into

consideration the unimpeached, uncontroverted and

unchallenged pleadings & evidence of the respondents-

plaintiffs coupled with the fact that appellant-tenant did not

adduce any legal or acceptable evidence, decreed the suit in

favour of respondents.

4. Though several contentions have been urged by

both sides in support of their respective claims, it is relevant

to state that the suit is one for possession, damages and

other reliefs in relation to suit schedule immovable properties,

which would affect the valuable rights of the parties over the

suit schedule property. In the light of specific assertion of the

appellant that inability and omission on the part of the

appellant to contest the suit on merits was due to bonafide

reasons, unavoidable circumstances and sufficient cause,

without expressing any opinion on merits/demerits on the

same, this Court is of the view that one more opportunity is to

be granted to the appellant to contest the suit on merits by

imposing exemplary costs and directing the trial court to

dispose of the suit within a period of six months. Under the

circumstances by adopting a justice oriented approach, I

deem it just and proper 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. In the result, I pass the following:

ORDER

(1) Appeal is allowed.

(2) Impugned judgment and decree dated

10.03.2020 passed in O.S.No.1349/2017 by

the XLIII Addl. City Civil & Sessions Judge,

Bengaluru, is hereby set aside and matter is

remitted back to the trial court for

reconsideration afresh in accordance with

law subject to appellant paying a cost of

Rs.20,000/- to the respondent within a

period of four (4) weeks from today.

(3) Both the appellant and respondents

undertake to appear before the trial court

on 08.07.2022 awaiting further notice from

the trial court and also undertake to

cooperate with the trial court which is

hereby directed to dispose of the suit on

merits as expeditiously as possible and

preferably on or before 16.12.2022.

(4) All rival contentions of both parties are kept

open and no opinion is expressed on the

same.

Sd/-

JUDGE

DR