Smt P L Nagarathna vs Sri H K Suresh
2022 Latest Caselaw 11740 Kant

Citation : 2022 Latest Caselaw 11740 Kant
Judgement Date : 12 September, 2022

Karnataka High Court

Smt P L Nagarathna vs Sri H K Suresh on 12 September, 2022

Bench: V Srishananda

                             1




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 12TH DAY OF SEPTEMBER, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

             R.F.A.No.418/2011(DEC/INJ)

BETWEEN

SMT P L NAGARATHNA
W/O LATE K VARADARAJ
AGED ABOUT 58 YEARS,
NO.24/10, 5TH CROSS,
MANJUNATHNAGAR,
NEW GUDDADAHALLY,
MYSORE ROAD,
BANGALORE-560026
                                          ...APPELLANT

(BY SRI BASAVARAJ S. SAPPANNAVAR, ADVOCATE)

AND

1 . SRI H K SURESH
    S/O KEMPEGOWDA
    AGED ABOUT 39 YEARS,
    NO.1616, 1ST B CROSS,
    III MAIN, 1ST STAGE, II PHASE,
    CHANDRA LAYOUT
    BANGALORE-560040

2 . SRI GEVARCHAND
    S/O SAKAL CHAND
    AGED ABOUT 72 YEARS,
    R/O NO.5, MIKALAPPA LANE,
                                  2




   NAGARTHPET CROSS,
   BENGALURU-560 002
                                                 ...RESPONDENTS

(BY SRI K.R.KRISHNAMURTHY, ADVOCATE FOR R1;
R2 -SERVED)

      THIS RFA IS FILED U/S 96 R/W ORDER XLI RULE 1 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
04.12.2010 PASSED IN O.S.7459/2003 ON THE FILE OF THE
VIII-ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE
SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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

                          JUDGMENT

An application vide I.A.No.3/2022 is filed under

Order XLI Rule 25 read with Order XIV Rule 5 of CPC

with the following prayer:

"That for the reasons stated in the accompanying affidavit, it is most humbly prayed that this Hon'ble Court may be pleased to direct the Trial Court to frame the proposed issue as additional issue and to afford the sufficient opportunity to the appellant to lead her evidence on the said issue and to give its findings on the said issue after hearing the appellant and to submit the same to this Hon'ble Court, in the interest of justice and equity.

Proposed Additional Issue:

"Whether the plaintiff proves that the Judgment and decree dated 30.11.2002 passed in the suit in O.S.No.353/1991 on the file of VIII Addl. City Civil Court, Bengaluru is collusive, fraudulent, void and not binding upon him?"

2. I.A.No.3/2022 is supported by an affidavit of

P.L.Nagarathna-appellant. In the affidavit it is

contended that respondent No.1 filed O.S.No.7459/2003

against appellant and respondent No.2 for the relief of

declaration of title over the suit schedule property and

also to declare that Judgment and decree dated

30.11.2022 passed in O.S.No.353/1991 on the file of

VIII Additional City Civil Court, Bengaluru is collusive,

fraudulent, void and not binding upon the plaintiff and

for permanent injunction.

3. The defence taken by the defendant in the

said suit is that respondent No.2 has lead both oral and

documentary evidence on record and therefore per se

same is not a collusive decree.

4. Nevertheless, the trial court without framing

proper issue and without affording opportunity for the

parties to join the issue recorded a finding which is the

subject of this appeal.

5. The operative portion of the impugned

Judgment reads as under:

ORDER

"The suit is decreed. It is declared that the plaintiff is the absolute owner in possession of the suit schedule property. It is further declared that the Judgment and Decree passed in O.S.353/1991 on 30.11.2002 by this Court are void and that they are not binding on the plaintiff.

By way of Permanent Injunction, the defendant -1 is hereby restrained from interfering with the plaintiff's possession and enjoyment over the suit schedule property in any manner.

The defendants-1 and 2 shall bear their own costs of the suit and the defendant-2 shall pay the costs of the suit to the plaintiff."

6. In the absence of any issue being framed and

parties being directed to join the issue, trial court

passing the Judgment stating that decree passed in

O.S.No.353/91 dated 30.11.2002 is void and not binding

on the plaintiff is incorrect. Therefore impugned

Judgment cannot be sustained in the eye of law.

7. Having said thus, the application needs to be

allowed and parties be directed to lead evidence only on

the proposed additional issue by remanding the matter

for the trial court. But remand cannot be for retrial of

the case by affording second chance for the parties is

uncalled for having regard to the fact that parties have

sufficiently adduced their evidence on the remaining

issues and hence addressed their arguments. Therefore,

interest of justice would demand that the impugned

Judgment be set aside and parties be permitted to join

the issue on the proposed additional issue vide

I.A.No.3/2022. The proposed additional issue reads as

under:

"Whether the plaintiff proves that the Judgment and decree dated 30.11.2002 passed in the suit in O.S.No.353/1991 on the file of VIII Addl. City Civil Court, Bengaluru is collusive, fraudulent, void and not binding upon him?"

8. It is made clear that while setting aside the

impugned Judgment this court has not expressed any

opinion on the merits of the suit. Hence, the following:

ORDER

Appeal is allowed. Impugned Judgment is set

aside. Matter is remitted to trial court. Trial court shall

frame the proposed additional issue as referred to supra

and afford opportunity to the parties to adduce further

evidence if any only on the said additional issue and

thereafter consider the suit in O.S.No.7459/2003 afresh

in accordance with law.

Parties shall appear before the trial court without