Prakasha vs Mohamad Ashraf
2023 Latest Caselaw 6207 Kant

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                                                        NC: 2023:KHC:31361
                                                     RSA No. 2594 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 31ST DAY OF AUGUST, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.2594 OF 2017 (INJ)

                   BETWEEN:

                   PRAKASHA
                   S/O D R CHANDRASHEKAR
                   AGED ABOUT 40 YEARS
                   R/O CHANNAPURA, KUNDUR POST
                   ALUR TALUK
                   HASSAN DISTRICT
                   PRESENTLY R/A
                   C/O JYOTHI, NEAR HAMEED HOUSE
                   MADANI NAGAR, 3RD CROSS
                   KUTHAR LAYOUT, MUNNUR POST
                   MANGALURU-571408
Digitally signed                                             ...APPELLANT
by SHARANYA        (BY SRI PRAMOD R, ADVOCATE)
T
Location:
HIGH COURT         AND:
OF
KARNATAKA
                   1.    MOHAMAD ASHRAF
                         S/O AHAMAD
                         AGED ABOUT 39 YEARS
                         R/O D.NO.2-144-2
                         NAZIYA MANZIL
                         KUTTAR, SUBHASHNAGARA
                         MANGALURU-571408
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                                             NC: 2023:KHC:31361
                                           RSA No. 2594 of 2017




2.   NUSEEBA K A
     W/O MOHAMAD ASHRAF
     AGED ABOUT 36 YEARS
     R/O D.NO.2-144-2
     NAZIYA MANZIL
     KUTTAR, SUBHASHNAGARA
     MANGALURU-571408
                                               ...RESPONDENTS
(BY SRI K RAVISHANKAR, ADVOCATE)


     THIS RSA IS FILED U/S. 100 OF CPC. AGAINST THE
JUDGEMENT AND DECREE DTD 17.08.2017 PASSED IN
R.A.NO.16/2013 ON THE FILE OF THE III ADDL.SENIOR
CIVIL JUDGE AND JMFC, MANGALURU, D.K. AND ETC.

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


                       JUDGMENT

Heard the learned counsel appearing for the

respective parties.

2. The factual matrix of the case of the plaintiffs

before the Trial Court that they are in possession of 'A'

schedule property in pursuance of the agreement of sale

02.12.2008 entered into between the plaintiffs and

defendant No.1. It is also the contention that entire sale

consideration of Rs.2,80,000/- was paid by the plaintiffs to

NC: 2023:KHC:31361 RSA No. 2594 of 2017

defendant No.1 on the date of the execution of agreement

of sale and he was also put in possession. The notice

issued against the appellant herein was not served on him

and hence, paper publication was taken against him but he

did not appear before the Trial Court and hence, he placed

exparte and the Trial Court considering both oral and

documentary evidence placed on record dismissed the suit

of the plaintiffs. Being aggrieved by the said judgment

and decree of the Trial Court, an appeal was preferred

before the First Appellate Court. The First Appellate Court

having considered the grounds urged in the appeal,

formulated the point that whether the appellants/plaintiffs

have proved their settled possession and enjoyment of the

suit property as on the date of filing this suit and whether

the appellants/plaintiffs proves that the impugned

judgment of the Trial Court is against law, fact, evidence

and probabilities of the case and liable to be intervened by

this Court. The First Appellate Court on re-appreciation of

both oral and documentary evidence placed on record

comes to the conclusion that the possession is with the

NC: 2023:KHC:31361 RSA No. 2594 of 2017

respondents herein considering the document of sale

agreement and also other documents and allowed the

appeal and granted the relief of permanent injunction and

hence, the present appeal is filed before this Court by the

appellant/defendant.

3. The counsel appearing for the appellant would

vehemently contend that this Court has to frame the

substantial questions of law since there is a divergent

finding and also contended that when Ex.P7 agreement of

sale alleged to have been executed by the appellant and

the document have been impounded and ordered for

payment of penalty, the plaintiffs failed to comply the

order of Trial Court and when such being the position, First

Appellate Court was not justified in accepting the

inadmissible document and decreeing the suit of the

plaintiffs and the very finding of the First Appellate Court

is erroneous. The counsel also would vehemently contend

that no summons was served on the appellant before the

Trial Court and only based on the paper publication, he

NC: 2023:KHC:31361 RSA No. 2594 of 2017

was placed exparte and the said fact also not disputed by

the respondents counsel.

4. The counsel for the respondents would

vehemently contend that there is an agreement of sale

dated 02.12.2008 and possession was delivered and

rightly pointed out by the counsel for the appellant that

the validity of the very agreement has not been

considered by both the Courts.

5. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

on record it discloses that when the defence is also not

taken by the appellant herein before the Trial Court since

he was placed exparte based on the paper publication, it is

a fit case to remand the matter for consideration afresh

before the Trial Court in keeping open the grounds which

have been urged by both the counsel and hence, it

requires interference. Thus, the impugned judgment and

decree of the First Appellate Court requires to be set aside

and the matter has to be remanded to the Trial Court to

NC: 2023:KHC:31361 RSA No. 2594 of 2017

consider the issues involved between the parties afresh

since the appellant also claims possession based on the

unregistered sale agreement dated 02.12.2008. It is

appropriate to direct the Trial Court to expedite the matter

since this is a matter of the year 2009.

6. In view of the discussions made above, I pass

the following:

ORDER

The appeal is allowed.

The judgment and decree dated 17.08.2017 passed

in R.A.No.16/2013 is set aside and consequently, when

this Court comes to the conclusion that the matter

requires to be considered afresh, the judgment and decree

dated 04.01.2013 passed by the Trial Court in O.S.No.

823/2009 is also requires to be set aside and the same is

also set aside.

The respective parties are directed to appear before

the Trial Court on 03.10.2023 without expecting any

notice from the Trial Court and thereafter one week time is

NC: 2023:KHC:31361 RSA No. 2594 of 2017

granted to file the written statement by the appellant

herein and no further time shall be granted to the

appellant before the Trial Court to file written statement.

The Trial Court is also directed to dispose of the

matter within a period of six months from 03.10.2023y by

giving an opportunity to both the parties to lead their

evidence to substantiate their case.

Sd/-

JUDGE

SN