Smt Mariyamamma vs Smt Koramamma
2023 Latest Caselaw 3651 Kant

                                             -1-
                                                    NC: 2023:KHC:21861
                                                       MSA No. 56 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 23RD DAY OF JUNE, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    MISCELLANEOUS SECOND APPEAL NO.56 OF 2023 (RO)

                   BETWEEN:

                   SMT MARIYAMAMMA
                   W/O LATE CHANNAIAH
                   AGED ABOUT 85 YEARS
                   RESIDENT OF BEESANAHALLI
                   HEBBUR HOBLI, TUMKUR TALUK
                   TUMKUR DISTRICT 572101
                   REPRESENTED BY
                   GPA HOLDER
                   B C KRISHNAMURTHY
                   S/O LATE CHENNAYYA
                   AGED ABOUT 58 YEARS
                   RESIDENT OF BEESANAHALLI
Digitally signed
by SHARANYA T      HEBBUR HOBLI, TUMKUR TALUK
Location: HIGH     TUMKUR DISTRICT 572101
COURT OF
KARNATAKA

                                                            ...APPELLANT
                   (BY SRI. MALLIKARJUNA DODDA
                   BASAVARAJAPPA RYAKHA, ADVOCATE)

                   AND:

                   1.    SMT KORAMAMMA
                         W/O LATE GOVINARASIMHAIAH
                         AGED ABOUT 66 YEARS,
                         -2-
                               NC: 2023:KHC:21861
                                  MSA No. 56 of 2023




2.   H G RANGARAJU
     S/O LATE GOVINARASIMHAIAH
     AGED ABOUT 52 YEARS

3.   H G KEERTHI
     S/O LATE GOVINARASIMHAIAH
     AGED ABOUT 50 YEARS

4.   H G ANANDAKUMAR
     S/O LATE GOVINARASIMHAIAH
     AGED ABOUT 48 YEARS

5.   H G KRISHNAMURTHY
     S/O LATE GOVINARASIMHAIAH
     AGED ABOUT 46 YEARS

6.   JAGADEESH @ H G JAGADEESH
     S/O LATE GOVINARASIMHAIAH
     AGED ABOUT 44 YEARS

7.   VENKATAPPA
     S/O LATE NARASIMHAIAH @ AJJAIAH
     AGED ABOUT 57 YEARS

8.   RANGANARASAIAH
     S/O LATE NARASIMHAIAH @ AJJAIAH
     AGED ABOUT 55 YEARS

9.   KRISHNAIAH
     S/O LATE RANGANARASAIAH
     AGED ABOUT 61 YEARS

10. RANGASWAMI
    S/O LATE RANGANARASAIAH
    AGED ABOUT 59 YEARS
                             -3-
                                   NC: 2023:KHC:21861
                                        MSA No. 56 of 2023




    ALL ARE R/AT PARVATHIPURA
    HEBBUR HOBLI, TUMKURU TALUK
    TUMKURU DISTRICT 572101


                                          ...RESPONDENTS
(BY SRI NAVEEN KUMARA N, ADVOCATE)


     THIS MSA IS FILED UNDER SECTION 43 RULE 1 OF
THE CPC., AGAINST THE JUDGMENT AND DECREE DATED
28.02.2023 PASSED IN R.A.NO.254/2019 ON THE FILE OF
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
TUMAKURU AND ETC.


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

                    JUDGMENT

This miscellaneous second appeal is filed challenging

the judgment and decree dated 28.02.2023 passed in R.A.

No.254/2019 on the file of the III Additional District and

Sessions Judge, Tumakuru.

2. This appeal is listed for admission. Heard the

learned counsel appearing for the respective parties.

3. The First Appellate Court taken note that

though engaged the counsels, written statement was not

NC: 2023:KHC:21861 MSA No. 56 of 2023

filed and the counsels also not cross-examined the

witnesses and also taken note of the claim made by the

appellants/respondents that they have purchased the

property long back and all revenue records are standing

from 1968 till 2003 in the name of Narasaiaha S/o

Ghattaiah and the defendants and their ancestors have

filed requisition for change of khatha but due to the

objection raised by the plaintiff, khatha has not been

changed. Having considered this aspect, the First Appellate

Court comes to the conclusion that the matter requires to

be considered on merits and allowed the regular appeal

filed by the appellants/defendants under Section 96 read

with Order 41 rule 1 and 2 of CPC with cost of Rs.5,000/-,

when the relief is sought for declaration. But the records

discloses that the counsels are changed but not filed

written statement and even when the case was posted for

defendant's evidence on 17.07.2017, but on that day, the

counsel for the defendants was absent and defendants'

evidence was taken as nil and pronounced the judgment in

the month of November 2017 and till date, not made any

NC: 2023:KHC:21861 MSA No. 56 of 2023

efforts by the respondents. The First Appellate Court fails

to take note that the respondents are not active and an

opportunity was given to the respondents herein to

engage the counsel and not cross-examined the witnesses

even though vakalath was filed in the year 2013 and

allowed the appeal of the appellants imposing the cost of

Rs.5,000/- only which is very meager.

4. But the counsel for the appellants would

vehemently contend that in the affidavit they have stated

that they have not engaged the counsel and the said

affidavit is filed only with regard to the condonation of

delay application and separate order has been passed on

condonation of delay application and the said order has

not been questioned and the same attained its finality but

the matter is considered on the merits. When such being

the case, it is appropriate to give an opportunity to the

respondents. However, the order of the First Appellate

Court has to be modified and directed the respondents to

pay the cost of Rs.25,000/- on 30.06.2023 as against

NC: 2023:KHC:21861 MSA No. 56 of 2023

Rs.5,000/- imposed by the First Appellate Court. With this

observation, this miscellaneous second appeal is disposed

off.

Sd/-

JUDGE

SN