Shri.Bhimagouda S/O Baburao ... vs Smt.Shobhatayi @ Shweta W/O ...
2023 Latest Caselaw 7613 Kant

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                                                      NC: 2023:KHC-D:13045-DB
                                                     RFA No. 100164 of 2020




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                         DATED THIS THE 8TH DAY OF NOVEMBER, 2023
                                          PRESENT
                            THE HON'BLE MR JUSTICE H.P.SANDESH
                                             AND
                      THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                  REGULAR FIRST APPEAL NO.100164 OF 2020 (PAR/POS)


                 BETWEEN:
                 SHRI. BHIMAGOUDA S/O. BABURAO PATIL
                 AGE: 42 YEARS, OCC: AGRICULTURE,
                 R/O: NAGANUR K.S.-591 313,
                 TALUKA: HUKKERI, DIST: BELAGAVI.
                                                                 ...APPELLANT
                 (BY SRI. NAVEEN CHATRAD, ADVOCATE)

                 AND:
                 1.    SMT. SHOBHATAYI @ SHWETA
                       W/O. SADANAND PATIL,
                       AGE: 40 YEARS,
                       OCC: HOUSEHOLD/AGRICULTURE,
                       R/O: SULAKUD-416 216,
                       TAL: KAGAL, DIST: KOLHAPUR.
SAROJA
HANGARAKI
HIGH COURT OF
KARNATAKA
                 2.    SHRI. NAGOUDA S/O. BABURAO PATIL,
DHARWAD
BENCH                  AGE: 43 YEARS, OCC: AGRICULTURE,
2023.11.10
05:44:12 +0000         R/O: NAGANUR K.S.-591 313,
                       TAL: HUKKERI, DIST: BELAGAVI.
                                                             ...RESPONDENTS
                 (BY SRI. S.M.TONNE, ADVOCATE FOR R1;
                     SRI.PRASHANT MATHAPATI, ADVOCATE FOR R2)

                       THIS RFA IS FILED UNDER SEC. 96 R/W U/O XLI RULE 1 OF
                 CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.01.2020
                 PASSED IN O.S.NO.101/2018 ON THE FILE OF THE SENIOR CIVIL
                 JUDGE, HUKKERI, ITINERARY COURT, SANKESHWAR, DECREEING
                 THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
                       THIS RFA, COMING ON FOR ADMISSION, THIS DAY,
                 H.P. SANDESH, J., DELIVERED THE FOLLOWING:
                                 -2-
                                          NC: 2023:KHC-D:13045-DB
                                         RFA No. 100164 of 2020




                           JUDGMENT

Heard the appellant's counsel and also the counsel

appearing for the respondents.

2. The factual matrix of case of the plaintiff before the

Trial Court while seeking the relief of partition and separate

possession contended that the plaintiff and defendants are the

members of Hindu undivided family and suit schedule

properties are their ancestral as well as joint family properties

and claimed the share.

3. Defendant No.2 appeared and filed written

statement contending that suit is bad for non joinder of

necessary parties and also it is the contention that plaintiff

relinquished her right in favour of defendants. Hence, the Trial

Court has framed the issues and allowed the parties to lead

evidence.

4. Accordingly, plaintiff has been examined as PW1

and got marked the documents Exs.P1 to P14 and posted the

matter for defendants evidence and on the very same day

taken as no evidence and heard the matter and posted the

NC: 2023:KHC-D:13045-DB RFA No. 100164 of 2020

matter for judgment and passed the judgment. Hence, the

present Regular First Appeal is filed before this Court.

5. The main contention of the counsel appearing for

the appellant that no opportunity is given to lead evidence and

on the very same day the Trial Court has taken as no

defendants evidence and comes to the conclusion that no

ground is made out and prayer is rejected and defendants

evidence is taken as 'Nil', heard the arguments of the plaintiff

and arguments of the defendants is taken as 'Nil' and posted

the matter for judgment. The very approach of the Trial Court

is erroneous.

6. The counsel also vehemently contend that when

defendant No.2 has filed written statement, ought to have

given an opportunity. The counsel also would submit that PW1

was examined before the Trial Court on 5.12.2019 and counsel

for the respondents has sought time and matter was deferred

to cross examination on 13.12.2019 and on 13.12.2019 PW1

was present and defendant No.1 was absent and hence, taken

as no cross of PW1. The counsel for DW2 was present and he

prayed for time and adjourned on cost of Rs.100/- and posted

NC: 2023:KHC-D:13045-DB RFA No. 100164 of 2020

the matter to 03.01.2020. On 03.01.2020 when PW1 was

present, counsel for defendants was absent and no

representation and hence, cross examination is taken as nil and

posted the matter for defendants evidence. Referring the order

sheet the counsel would vehemently contend that, in a hurried

manner, the Trial Court has passed the judgment and matter

requires to be remanded to the Trial Court.

7. Per contra, the counsel appearing for the

respondents vehemently contend that even though an

opportunity is given to cross examine the PW1, both the

counsel for defendant No.1 and defendant No.2 have not cross

examined the PW1 and even adjournment was also given to

cross examine the witness on cost when the defendant No.2

made the submission before the Trial Court and matter was

adjourned and on that day also not cross examined the PW1

and PW1 was very much present before the Trial Court in all

the dates of hearing i.e. on 5.12.2019, 13.12.2019 and

03.01.2020 and not cross examined PW1. The counsel also not

disputes the fact that when the case was set down for

defendants' evidence, on the same day taken as no defendants

evidence and Trial Court having taken note of non-cross

NC: 2023:KHC-D:13045-DB RFA No. 100164 of 2020

examination of PW1 in spite of opportunity was given, closed

the case of the defendants and hence, no need to remand the

matter.

8. Having heard the appellant's counsel and also the

counsel appearing for the respondents and also on perusal of

the material available on record, suit is filed in the year 2018

and also defendants appeared through counsel after taking

steps both through Court, RPAD and also after the affixtures

and only after the affixtures, memo of appearance was filed for

defendant No.1 and also posted the matter for filing written

statement and written statement was not filed and posted the

matter for plaintiff's evidence and plaintiff was examined on

30.08.2019 and thereafter when the case of the plaintiff was

closed, posted the matter for arguments since, both defendant

Nos.1 and 2 have not filed written statement, thereafter, on

13.09.2019, an application was filed along with statement of

objections and the same was allowed on cost and Court has

framed the issues and thereafter posted the matter for

evidence and ultimately PW1 was examined on 05.12.2019 and

in spite of an opportunity was given, defendants have not cross

NC: 2023:KHC-D:13045-DB RFA No. 100164 of 2020

examine the PW1 and hence taken as no cross and thereafter

posted the matter for defendants' evidence.

9. Having perused the entire order sheet it clearly

discloses that, the defendant has not appeared before the Court

from 2018 till 2019, and only appeared after the affixtures and

also not filed the written statement and only after examination

of PW1 and when case was set down for arguments, an

application was filed under Order 9 Rule 7 of CPC along with

written statement of defendant No.2. The same was also

allowed on payment of cost and in spite of time was given to

cross examine the PW1, not cross examined the PW1 and

hence it is clear that appellant is not pursuing the matter

diligently and subjected the respondent/plaintiff for

harassment.

10. No doubt, the Trial Court also committed an error in

giving only one opportunity for leading defendants' evidence

and on the very same day taken as nil and also heard the

counsel and reserved the matter for judgment and the very

approach of the Trial Court is erroneous and it also discloses

that the Trial Court proceeded to pass the judgment on

NC: 2023:KHC-D:13045-DB RFA No. 100164 of 2020

09.01.2020 itself, it shows the hasty attitude of the Presiding

Officer proceeding in the matter without giving an opportunity,

it is nothing but violation of principles of natural justice.

11. Admittedly, defendant No.2 has filed the written

statement before the Court and though the said statement filed

belatedly after examination of the plaintiff, but an opportunity

would have been given to lead evidence and no such

opportunity was given except giving one date. Having

considered the attitude of the appellant as well as considering

the hasty attitude of the Presiding Officer in disposing of the

matter, it is a case of remanding the matter with a time bound

direction to dispose of the matter by giving an opportunity.

12. In view of the discussions made above, we pass the

following:

ORDER

i) The appeal is allowed.

ii) The impugned judgment and decree is set aside subject to, cost of Rs.10,000/- payable by the appellant to plaintiff before the Trial Court on the very next date of hearing i.e. on 4.12.2023.

NC: 2023:KHC-D:13045-DB RFA No. 100164 of 2020

iii) If the appellant fails to pay the cost of Rs.10,000/-

to the plaintiff on that day, question of reconsidering the matter afresh does not arise.

iv) The Trial Court is also directed to dispose of the suit within two months by giving an opportunity to the appellant to lead defence evidence and on the very same day of examination, the counsel for the plaintiff is also directed to cross examine the witness and assist the Trial Court in disposal of the case within two months from 4.12.2023.

v) The parties are directed to appear before the Trial Court on 4.12.2023 without expecting any notice from the Trial Court.

vi) Both the parties and respective counsels are directed to assist the Trial Court in disposal of the case within the time bound limit.

Sd/-

JUDGE

Sd/-

JUDGE

AP