Karnataka High Court
Smt.J.Pavithra vs K.R.Sudheeksha on 10 April, 2023
Bench: H.P.Sandesh
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RSA No. 1366 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1366 OF 2022 (POS)
BETWEEN:
1. SMT. J.PAVITHRA
W/O SURESH K.M.
AGED ABOUT 37 YEARS
2. SRI SURESH K.M.
S/O K. MUNIKRISHNAPPA
AGED ABOUT 47 YEARS
3. K S SRINIVASA
S/O SURESH K M
AGED ABOUT 14 YEARS
4. K S MOHAN PRIYA
D/O SURESH K M
AGED ABOUT 10 YEARS
Digitally signed
by SHARANYA T
Location: HIGH APPELLANT NOS.3 & 4 ARE MINORS
COURT OF
KARNATAKA AND REPRESENTED BY THEIR
NEXT FRIEND AND NATURAL GUARDIAN
I.E., 2ND APPELLANT
ALL ARE RESIDING AT
SOPPINA BEEDI, NANDI ROAD,
5TH DIVISION 20TH WARD
CHIKKABALLAPURA-562 101.
...APPELLANTS
(BY SRI. LOURDU MARIYAPPA A., ADVOCATE)
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RSA No. 1366 of 2022
AND:
1. K.R.SUDHEEKSHA
D/O K. KRISHNAREDDY
AGED ABOUT 29 YEARS
2. SMT. N.V. AMBUJAKSHI REDDY
W/O K. KRISHNAREDDY
AGED ABOUT 62 YEARS
RESPONDENT NOS.1 AND 2 ARE
RESIDING AT ASHWINI EXTENSION
NEAR NEW PUBLIC SCHOOL
CHINTAMANI TOWN-563 125
CHIKKABALLAPURA DISTRICT.
...RESPONDENTS
(BY SRI. S.N.ASWATHANARAYANA, SENIOR COUNSEL FOR
SRI S.A.SUDHINDRA, FOR C/R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 23.08.2022
PASSED IN RA.No.70/2021 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, CHIKKABALLAPURA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 15.11.2021 PASSED IN OS No.38/2021 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHIKKABALLAPURA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellants and the learned senior
counsel appearing for the caveators/respondent Nos.1 and 2.
RSA No. 1366 of 2022
2. This appeal is filed challenging the judgment and
decree dated 23.08.2022 passed in R.A.No.70/2021 on the file
of the Principal Judge, Family Court at Chikkaballapura.
3. The factual matrix of the case of the plaintiffs
before the Trial Court in O.S.No.38/2021 is that the plaintiffs
are the absolute owners in respect of plaint schedule property.
The plaintiffs have purchased the property under sale deed
dated 30.08.2014 executed by the defendants for valuable sale
consideration of Rs.32,00,000/- and the same has been
registered. In the said sale deed, there is a recital that physical
possession had been handed over by the defendants to the
plaintiffs. The defendants approached and requested the
plaintiffs that the defendants will be going to vacate ground
floor premises in part and parcel of schedule property and all
the house hold materials will be shifted immediately. On the
basis of assurance of defendants the plaintiffs have believed
that the defendants will vacate the ground floor premises, but
defendants have not at all vacated the ground floor premises
and handed over the same.
RSA No. 1366 of 2022
4. It is also their case that the defendants have filed a
frivolous suit before I Additional Senior Civil Judge,
Chikkaballapura in O.S.No.342/2014 for false relief of
cancellation of sale deed dated 30.08.2014 and for
consequential relief of permanent injunction. The said suit was
dismissed on 06.08.2019. In spite of several occasions, the
plaintiffs requested the defendants to vacate the ground floor
premises but by one or other reason claiming the property by
filing the suit. After dismissal of suit in O.S.No.342/2014 the
defendants preferred an appeal before this Court in
R.F.A.No.2008/2019. The plaintiffs want to evict the defendants
upon suit schedule property by due process of law. The very
plaintiffs are filing the suit for the relief of quit and deliver the
possession of the suit schedule property.
5. In pursuance of the suit summons, defendant Nos.1
and 2 are appeared before the Court and defendant Nos.3 and
4 are not appeared before the Court. Hence, they were placed
exparte. Defendant Nos.1 and 2 had not made any effort to file
the written statement.
RSA No. 1366 of 2022
6. The Trial Court based on the contentions of the
plaintiffs and the defendants framed two issues that whether
the plaintiffs are entitled for the relief as sought for and what
order or decree. In order to substantiate the plaintiffs' case,
plaintiff No.2 was examined as P.W.1 and got marked the
documents as Exs.P1 and P12. On the contrary, defendants
have not led any evidence.
7. The Trial Court after considering both oral and
documentary evidence available on record granted the relief as
sought in the plaint by considering the evidence of P.W.1 as
well as the documents - Exs.P1 to P12. The Trial Court taken
judicial notice of these facts. Ex.P7, is the order copy of this
Court in R.F.A.No.2008/2019. On perusal of the order it reflects
that the defendants could not be evicted without due process of
law. Exs.P8 to 12 are office copy of legal notice, postal receipts
and acknowledgements. On going through these documents it
reflects that the plaintiffs issued notice against defendants for
delivery of possession but inspite of service of notice they have
not delivered the possession. These facts are also not disputed
by the defendants and not filed the written statement and also
not led any rebuttal evidence. Hence, the Trial Court accepted
RSA No. 1366 of 2022
the case of the plaintiffs and decreed the suit and granted the
relief of permanent injunction in respect of the ground floor
premises and directed the defendants to quit and deliver vacant
possession of ground floor of suit schedule property in favour of
plaintiffs within 30 days from the date of the order. Being
aggrieved by the judgment and decree of the Trial Court, an
appeal was filed before the First Appellate Court, which is
numbered as RA No.70/2021, wherein, the grounds urged are
that defendant Nos.3 and 4 are placed ex-parte and defendant
Nos.1 and 2 are the natural guardians of defendant Nos.3 and
4. Defendant Nos.1 and 2 not opposed and taken care of the
interest of the minors. It is contended that on that ground
itself, the judgment and decree of the Trial Court is
unsustainable. It is also contended that the Trial Court grossly
erred in not taking into consideration the orders passed in
R.F.A.No.2008/2019 and the said matter is pending before the
High Court of Karnataka, wherein, it is specifically observed
that the defendants should not be evicted without due process
of law. In spite of it the Trial Court has committed an error.
Hence, the First Appellate Court had formulated the points that
whether the Trial Court has misinterpreted the Interim Order
RSA No. 1366 of 2022
passed by the Hon'ble High Court of Karnataka in
R.F.A.No.2008/2019, whether the Trial Court has not given
sufficient opportunity to the defendants to file their written
statement and whether the judgment and decree of the Trial
Court is apparent, illegal, perverse and capricious.
8. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record answered all
the points as negative and came to the conclusion that the Trial
Court has not committed an error in interpreting the order of
the High Court of Karnataka as well as an opportunity is given
to the defendants. In view of defendant Nos.1 and 2 did not
file any written statement, the First Appellate Court on re-
appreciation of both oral and documentary evidence placed on
record dismissed the regular appeal. Hence, the second appeal
is filed before this Court.
9. The main contention of the learned counsel
appearing for the appellants before this Court is that admittedly
defendant Nos.3 and 4 are the minors and they were aged
about 14 years and 10 years, respectively, when the suit was
filed. Though an application was filed for appointment of
RSA No. 1366 of 2022
guardian, no order had been passed by the Trial Court. The
learned counsel also would submit that before the First
Appellate Court also, though an application was filed, no order
had been passed for appointing the guardian to appellant Nos.3
and 4. The learned counsel would submit that both the Trial
Court and the First Appellate Court have not taken care of the
interest of the minors.
10. The learned counsel in support of his arguments, he
relied upon the judgment of the Apex Court in the case of
Nagaiah and Another v. Smt. Chowdamma (dead) by
LRs., and Anr. Reported in AIR 2018 SC 459. Relying upon
this judgment, the learned counsel brought to the notice of this
Court that the observation made by the Apex Court,
particularly, when the suit is filed against the minor defendants,
an observation is made in paragraph No.6 that in case, where
the suit is filed on behalf of a minor and where the suit is filed
against a minor, no permission or leave of the Court is
necessary for the next friend to institute the suit. Whereas if
the suit is filed against a minor, it is obligatory for the plaintiff
to get the appropriate guardian ad litem appointed by the Court
for such minor. A "guardian ad litem" is a special guardian
RSA No. 1366 of 2022
appointed by a Court in which a particular litigation is pending
to represent a minor/infant, etc. in that particular litigation and
the status of guardian ad litem exists in that specific litigation
in which appointment occurs. The learned counsel would
vehemently contend that when the decree is passed against the
minors and to protect their interest, at the most the Court can
remand the matter for fresh consideration.
11. Per contra, the learned senior counsel appearing for
the caveators/respondents would submit that defendants No.1
and 2 are none other than the parents of defendants No.3 and
4. The learned senior counsel also would submit that the suit is
filed against the parents, who are defendant Nos.1 and 2. The
defendant Nos.3 and 4 are minors, the suit summons issued
against them were acknowledged by defendant Nos.1 and 2.
Even defendant Nos.1 and 2 are also not contested the matter
and not filed any suit. The First Appellate Court also on re-
appreciation of both oral and documentary evidence placed on
record taken note of the fact that the service of the summons
and not disputes the fact that an application was filed before
the Trial Court while filing the suit seeking for an appointment
of guardian and also when they themselves have filed an
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RSA No. 1366 of 2022
appeal before the First Appellate Court and filed the necessary
application before the Court, they also did not get an order for
appointment of guardian on behalf of defendant Nos.3 and 4.
Now, the appellants cannot find fault with the Court with regard
to non appointment of guardian. Hence, the very contention of
the learned counsel appearing for the appellants cannot be
accepted and no dispute with regard to the fact that the
necessary applications are filed before the Trial Court seeking
for an appointment of guardian and also even not contested the
suit. In the second appeal, the appellants cannot raise such
objections.
12. Having heard the learned counsel appearing for the
appellants and the learned senior counsel appearing for the
respondents and on perusal of the material available on record,
it is the claim of the plaintiffs before the Trial Court that they
are the absolute owners. It is also their case that the plaintiffs
have purchased the property under Sale Deed dated
30.08.2014 executed by the defendants for valuable
consideration of Rs.32 Lakhs, the same has been registered. It
is also their case that the defendants have also filed a suit in
O.S.No.342/2014 for the relief of cancellation of Sale Deed and
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RSA No. 1366 of 2022
the consequential relief of permanent injunction. Admittedly,
the suit was dismissed and also an appeal was filed before this
Court and the same is numbered as R.F.A.No.2008/2019.
Learned senior counsel for the respondents brought to the
notice of this Court that while admitting the appeal and
granting an interim order, it is made clear that the appellants
can be evicted only under due process of law and accordingly
for invoking the due process of law, the suit in O.S.No.38/2021
was filed before the Trial Court.
13. It is not in dispute that the appellants have been
served with suit summons and also not in dispute that
defendant Nos.3 and 4 are the sons of defendant Nos.1 and 2
and this appeal is also filed by defendants No.1 to 4 along with
their minor children and no explanation with regard to non
filing of written statement and contesting the matter before the
Trial Court. Only contended that no order has been passed
when an application was filed for appointment of guardian and
the appellants also not dispute the fact that an application was
filed for appointment of guardian. Only contention was that no
order has been passed by the Trial Court. Even admittedly,
when they have filed an appeal against the judgment and
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RSA No. 1366 of 2022
decree, wherein, also they have filed an application for
appointment of guardian. In the First Appellate Court, no order
has been passed with regard to appointment of guardian. The
fact that they themselves have filed an appeal before the First
Appellate Court also not in dispute and they have not pressed
for any order even before the First Appellate Court on behalf of
their minor children. When such being the material available on
record, when defendant Nos.1 and 2, who are none other than
the natural guardians of defendant Nos.3 and 4, they have not
contested the matter. As observed by the Division Bench of this
Court in R.F.A.No.2008/2019, there was no any bar to proceed
and evict the appellants herein under due process of law and
accordingly under due process of law, they have filed the suit,
wherein, they have not contested the matter, even not filed the
written statement though represented through the Counsel.
Hence, the very contention of the learned counsel for the
appellants that the minors interest has not been protected,
cannot be accepted. They themselves have taken the notice in
respect of minor children also. Even they have not contested
the matter by filing written statement and in the second appeal
they have raised the technicality. In the second appeal, when
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RSA No. 1366 of 2022
they have not pleaded anything before the Trial Court and also
not made any efforts in the First Appellate Court for filing
necessary application or taking any permission to file written
statement, they cannot urge all these grounds. Hence, I do not
find any merit in the second appeal to admit and frame any
substantial question of law invoking Section 100 of CPC.
14. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
CP
