Ramesh vs Chinnakkamma
2022 Latest Caselaw 9486 Kant

                            -1-



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF JUNE, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.2472/2016 (CPC)

BETWEEN:
1.   RAMESH
     S/O. MUNIYAPPA,
     AGED ABOUT 47 YEARS,

2.     SRI. PRAKASH
       S/O. MUNIYAPPA,
       AGED ABOUT 43 YEARS,

3.     SRI. MANJUNATH
       S/O. MUNIYAPPA,
       AGED ABOUT 40 YEARS,

       ALL ARE RESIDING AT
       BASAVANAPURA VILLAGE,
       BEGUR HOBLI,
       BANGALORE SOUTH TALUK - 560 076.
                                     ... APPELLANTS
(BY SRI.R.S. MANJUNATHA, ADVOCATE)

AND:

1.     CHINNAKKAMMA
       W/O. H. KRISHNAPPA,
       D/O. BYANNA,
       AGED ABOUT 65 YEARS,
       R/AT NO. 327, BHAGAVATHI LAYOUT,
       HULIMAVU VILLAGE,
       BEGUR HOBLI,
       BANGALORE SOUTH TALUK - 560 076.
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2.   GOWRAMMA
     W/O. VENKATANARAYANA,
     AGED ABOUT 70 YEARS,
     R/AT CHIKAHINDLAVADDI,
     ANEKAL TALUK,
     BANGALORE DISTRICT - 562 106.

3.   MUNIYAPPA
     S/O. LATE KONDAPPA,
     AGED ABOUT 80 YEARS,

     R/AT BASAVANAPURA VILLAGE,
     BEGUR HOBLI,
     BANGALORE SOUTH TALUK - 560 076.

                                  ... RESPONDENTS
(BY SMT. VIDYA SELVAMARY, ADVOCATE FOR
    M/S. NAG ASSOCIATES, ADVOCATE FOR R1;
   SRI. LAKSHMI PATHI, ADVOCATE FOR R3;
   VIDE ORDER DATED 25.10.2018 NOTICE TO R2
   IS DISPENSED WITH)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(d) OF CPC SET ASIDE THE
ORDER DATED 18TH DECEMBER 2015 PASSED BY THE
PRL. SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT
BANGALORE IN MISC PETITION NO. 28/2013 AND GRANT
THE RELIEFS PRAYED THEREIN BY ALLOWING THIS
APPEAL.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                        JUDGMENT

The appellants' application under Order IX Rule

13 read with Section 151 of the Code of Civil Procedure,

1908 (CPC) in Misc.N.28/2013 on the file of Principal

Senior Civil Judge, Bengaluru Rural District (for short,

'the civil Court') is dismissed by the impugned order

dated 18.12.2015. The civil Court has also rejected the

appellants' application (IA No.1) under Section 5 of the

Limitation Act, 1963 for condonation of delay and the

petition.

The first respondent's suit in O.S.No.377/2011 for

partition is decreed ex-parte by the civil Court on

02.04.2012 and the first respondent has instituted final

decree proceedings in FDP No.42/2012. It is after the

initiation of this final decree proceedings, the appellants

have filed their application under Order IX Rule 13 of

the CPC along with an application for condonation of

delay.

The civil Court has rejected the applications for

condonation of delay and for restoration of the suit

primarily because it is opined that the appellants' case

that they came to know about the suit in

O.S.No.977/2011 only with the service of notice in the

final decree proceedings is doubtful. The civil Court has

observed that the appellants' witness, contrary to the

appellants' case, has stated that they came to know

about initiation of the suit and the subsequent decree

upon service of notice by the surveyor. The civil Court

has concluded that the appellants cannot contend that

they had no knowledge of the suit because the certified

copy of the order sheet in the original proceedings

would indicate that they have refused service of notice

by the registered post with acknowledgment.

The relationship amongst the parties is not

disputed. The parties are ad idem that the propositus -

Muniyamma - had two sons, - Sri Kondappa and

Sri.Byanna. The first respondent - plaintiff is the

daughter of Sri Byanna and the appellants are the

grand children of Sri Kondappa. The final decree

proceedings are still at the initial stage and the first

respondent has not taken effective measures for early

conclusion. Significantly, the Final Decree Court has

not called for a survey report for partition by metes and

bounds. If the witness has referred to the notice from a

surveyor instead of notice of the Final Decree

proceedings, the same should be considered in the

aforesaid admitted circumstances.

It is settled law that the Court must not take a

hyper technical approach and must lean in favour of the

decision on merits when the bona fides are established

and third-party rights are not created in the subject

property. This Court must opine that the civil Court has

indeed taken a hyper technical approach in deciding the

suit. For these reasons, and because the questions

such as whether there was partition between

Sri.Kondappa and Smt.Muniyanna, and whether

Sri.Byanna has transferred the property allotted to him

in such partition, will have to be decided to hold that

the first respondent could be entitled for a share, the

appeal will have to be allowed. However, the appellants'

must be put to terms to ensure that balance is managed

between the appellants and the respondents. Hence,

the following:

ORDER

1) The appeal is allowed, and the

impugned orders dated 18.12.2015 in

Mis.No.28/2013 and ex parte judgment and

decree dated 2.4.2021 in O.S.No.377/2011

on the file of the Principal Senior Civil Judge,

Bengaluru, are set aside and the suit in

O.S.No.377/2011 is restored for decision on

merits;

2) The parties shall appear before

the civil Court without further notice on

25.7.2022, and the appellants shall file their

written statement on the first date of hearing

or within the next thirty days;

3) The appellants shall also pay cost

of `30,000/- to the first respondent on the

date of such first appearance;

4) The parties shall assist the Civil

Court in expeditious disposal of the suit and

the civil Court shall endeavor to decide the

suit within an outer limit of nine months

from the date of first appearance.

SD/-

JUDGE

SA Ct:sr