Karnataka High Court
Sri. D Subramanyam vs Sri. Jos Fransis on 10 March, 2023
Bench: S.R.Krishna Kumar
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RFA No. 338 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.338 OF 2021 (INJ)
BETWEEN:
SRI. D SUBRAMANYAM
S/O LATE D PAPA NAIDU
AGED ABOUT 80 YEARS,
RESIDING AT NO.116,
1ST MAIN, GANGAMMANAGUDI LAYOUT
BSK 1ST STAGE
BANGALORE-560 050.
...APPELLANT
(BY SRI. B C VENKATESH, ADVOCATE)
AND:
1. SRI. JOS FRANSIS
S/O LATE M V FRANSIS
AGED ABOUT 48 YEARS,
NO.159, 3RD CROSS
NM KAVAL, BYAPPANAHALLI
Digitally signed by BEHIND SWAMI VIVEKANANDA ROAD
CHANDANA B M METRO STATION , INDIRANAGARA
Location: High BANGALORE-560 038.
Court of Karnataka
NOW AT
NO.27, ALFA GARDEN
KODIGEHALLI MAIN ROAD,
K R PURAM, BENGALURU-560036
2. SRI SIMON FRANSIS
S/O LATE M V FRANSIS
AGED ABOUT 47 YEARS,
RESIDING AT NO.159, 3RD CROSS
NM KAVAL, BYAPPANAHALLI
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RFA No. 338 of 2021
BEHIND SWAMI VIVEKANANDA ROAD
METRO STATION, INDIRANAGARA
BANGALORE-560 038.
NOW AT
NO.27, ALFA GARDEN
KODIGEHALLI MAIN ROAD,
K R PURAM, BENGALURU-560 036.
3. VARGHESE M FRANSIS
S/O LATE M V FRANSIS
AGED ABOUT 51 YEARS,
NO.27, ALFA GARDEN
KODIGEHALLI MAIN ROAD
K R PURAM, BENGALURU-560 036.
4. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE - 560 020.
5. THE AIRCRAFT EMPLOYEES' CO-OPERATIVE SOCIETY LTD.,
NO. 15, 1ST CROSS, CKC GARDEN
OPPOSITE HGC HOSPITAL
K.H. ROAD, BENGALURU - 560 027.
...RESPONDENTS
(BY SRI.PRAVEEN S., ADVOCATE FOR R-1 TO R-3;
SRI. MURUGESH V. CHARATI, ADVOCATE FOR R-4;
R-5 SERVED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE
1 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED:
16.03.2021 PASSED IN OS.No.1825/2013 ON THE FILE OF THE I
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
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RFA No. 338 of 2021
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment and
decree dated 16.03.2021 passed in O.S.No.1825/2013 on the file
of the I Addl. City Civil & Sessions Judge, Bengaluru, whereby the
said suit filed by the appellant against respondent Nos.1 to 3 for
permanent injunction and other reliefs in relation to the suit
schedule properties was dismissed by the trial Court.
2. Heard learned counsel for the appellant and learned
counsel for respondent Nos.1 to 4. Respondent No.5 is served and
remained unrepresented.
3. A perusal of the material on record will indicate that
appellant / plaintiff instituted the aforesaid suit specifically
contending that he is the absolute owner in lawful and peaceful
possession and enjoyment of the suit schedule property bearing
Site No.1854 as described in the schedule to the plaint. The said
suit was opposed by respondent Nos.1 to 3, who are the legal
representatives of the original defendant interalia contending that
they are the owners of Site bearing No.1854 and that the appellant
RFA No. 338 of 2021
/ plaintiff does not have any right over Site No.1853 owned and
possessed by respondent Nos.1 to 3 / defendants.
4. After completion of the pleadings, the trial Court
framed the following issues:
1. Whether plaintiff proves his lawful
possession and enjoyment over the suit schedule
property as on the date of the suit?
2. Whether plaintiff proves alleged
interference by the defendant?
3. Whether plaintiff is entitled for permanent
injunction as sought for?
4. What order or decree?
5. The plaintiff examined himself as PW1 and Exhibits P1
to P34 were marked while the defendant examined himself as DW1
and Exhibits D1 to D34 were marked.
6. During the course of the suit proceedings, the
appellant / plaintiff had filed an application - I.A.14 under Order 26
Rule 9 CPC seeking appointment of the Court Commissioner and
the trial Court did not decide the said application before proceeding
to pass the impugned judgment and decree dismissing the suit filed
RFA No. 338 of 2021
by the appellant / plaintiff, who is before this Court by way of the
present appeal.
7. In addition to the same, the defendant also filed
application - I.A.18 to summon the Secretary of the respondent
No.5 - Society to tender evidence and the said application was
allowed by the trial Court, which did not take further steps in that
regard and evidence of the Secretary of the respondent No.5 -
Society was not available before the trial Court at the time of
passing the impugned judgment and decree, which is yet another
circumstance to indicate that presence of the Society is necessary
and proper to decide the issues in controversy between the parties.
8. A perusal of the material on record, including the
impugned judgment and decree will clearly indicate that apart from
the fact that the trial Court committed an error of law and
jurisdiction in not deciding I.A.14 filed by the appellant / plaintiff for
appointment of Court Commissioner particularly in the light of the
serious dispute as regards location, identity, measurement and
extent of Site No.1854 claimed by the appellant and Site No.1853
claimed by the defendant, the trial Court also erred in not
impleading either respondent No.4 - BDA or respondent No.5 -
RFA No. 338 of 2021
Society from whom both the appellant and respondent Nos.1 to 3
claim right in respect of their respective site and consequently,
presence of respondent No.4 - BDA and respondent No.5 -
Society would be just and necessary to effectively adjudicate and
decide the issues in controversy between the parties coupled with
the fact that the BDA and the Society have been impleaded as
parties to the present appeal, without expressing any opinion on
the merits / demerits of the rival contentions, I deem it just and
appropriate to exercise my powers under Order 41 Rule 23A r/w
Rule 33 & Section 107 CPC and set aside the impugned judgment
and decree and remit the matter back to the trial Court for
reconsideration afresh in accordance with law by leaving open all
contentions to be reconsidered by the trial Court.
9. In the result, I pass the following:
ORDER
(i) Appeal is hereby allowed.
(ii) Impugned judgment and decree dated
16.03.2021 passed in O.S.No.1825/2013 on the file of the
RFA No. 338 of 2021
I Addl. City Civil & Sessions Judge, Bengaluru, is hereby set
aside.
(iii) Matter is remitted back to the trial Court for
reconsideration afresh in accordance with law.
(iv) The trial Court is directed to implead BDA and
The Aircraft Employees Co-operative Society Ltd., as
additional defendants to the suit and proceed thereafter, in
accordance with law.
(v) All rival contentions on all aspects of the matter
are kept open and no opinion is expressed on the same.
(vi) Liberty is reserved in favour of the impleaded
defendants i.e., BDA and The Aircraft Employees Co-
operative Society Ltd., to file their written statement and
contest the suit.
(vii) Liberty is also reserved in favour of all parties to
adduce oral and documentary evidence in support of their
respective claims.
RFA No. 338 of 2021
(viii) Liberty is also reserved in favour of the parties to
file appropriate interlocutory applications before the trial
Court, which shall decide the same in accordance with law.
(ix) All parties undertake to appear before the trial
Court on 27.03.2023.
(x) The trial Court is directed to dispose of the suit
as expeditiously as possible and preferably within a period of
six months from 27.03.2023.
(xi) All parties are directed to maintain status-quo in
all respects in relation to the suit schedule property till
disposal of the suit.
Sd/-
JUDGE
SV
