Sri Ravi vs Smt Sunitha M
2023 Latest Caselaw 6897 Kant

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                                                   NC: 2023:KHC:35743
                                                 RFA No. 1180 of 2017




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                     DATED THIS THE 3RD DAY OF OCTOBER, 2023
                                       BEFORE

                      THE HON'BLE MR. JUSTICE K.NATARAJAN

                      REGULAR FIRST APPEAL NO. 1180 OF 2017

             BETWEEN:

             1.    SRI RAVI
                   S/O MUNIRAJU,
                   AGED ABOUT 27 YEARS,
                   R/AT NO 1078/1, PRS LANE,
                   NAGARTHPET CROSS,
                   BANGALORE - 560 002.

             2.    SMT SAVITHRAMMA
                   W/O ANJANI,
                   AGED ABOUT 50 YEARS,
                   R/AT NO 1078/3,
                   PRS LANE, NAGARTHPET CROSS,
                   BANGALORE - 560 002.

             3.    SMT. RATHNAMMA
Digitally          W/O RAMESH,
signed by
SHAKAMBARI         AGED ABOUT 48 YEARS,
Location:
HIGH COURT         R/AT NO. 1078/2,
OF
KARNATAKA          PRS LANE, NAGARTHPET CROSS,
                   BANGALORE 560 002.
                                                        ...APPELLANTS
             (BY SRI. K SOMASEKHAR REDDY., ADVOCATE)
             AND:

             1.    SMT SUNITHA M
                   W/O LATE GOVINDAPPA,
                   AGED ABOUT 39 YEARS,
                   R/AT NO 1078/25,
                   PRS LANE, NAGARTHPET CROSS,
                   BANGALORE - 560 002.
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                                      NC: 2023:KHC:35743
                                   RFA No. 1180 of 2017




2.   SRI NAVEEN G
     S/O LATE GOVINDAPPA,
     AGED ABOUT 19 YEARS,
     R/AT NO 1078/25,
     PRS LANE, NAGARTHPET CROSS,
     BANGALORE - 560 002.

3.   MASTER NANDAKUMAR G
     S/O LATE GOVINDAPPA,
     AGED ABOUT 16 YEARS,
     MINOR, HE IS REPRESENTED BY HIS MOTHER AND
     NATURAL GUARDIAN SMT SUNITHA M,
     R/AT NO 1078/25,
     PRS LANE, NAGARTHPET CROSS
     BANGALORE - 560 002.

4.   SMT MUNIVENKATAMMA
     W/O LATE VENKATARAMANAPPA,
     AGED ABOUT 89 YEARS,
     R/AT NO. 1078/1, PRS LANE,
     NAGARTHPET CROSS,
     BANGALORE - 560 002.
                                      ...RESPONDENTS

(BY SRI. N A MOHAN FOR R1., ADVOCATE (ABSENT)
R2 AND R4 SERVED
R3 IS MINOR REP. BY R1 (ABSENT))

      THIS RFA FILED UNDER SEC.96 OF CPC, 1908, AGAINST
THE JUDGMENT AND DECREE DATED 24.03.2017 ON THE FILE
OF XI ADDL. CITY CIVIL JUDGE, BANGALORE CITY, IN
O.S.NO.2004/2012.

      THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                              NC: 2023:KHC:35743
                                            RFA No. 1180 of 2017




                           JUDGMENT

This appeal is filed by the appellants under Section 96 of

the Code of Civil Procedure, 1908 (for short 'CPC') for setting

aside the judgment and decree passed by the XI Addl. City Civil

Judge, Bengaluru in O.S. No.2004/2012 dated 24.03.2017.

2. Heard the learned counsel for the appellants.

No representation on behalf of respondents.

3. The appellants were the defendants and the respondents

were the plaintiffs before the trial Court. The rank of the

parties before the Trial Court is retained for the sake of

convenience.

4. The case of the plaintiffs before the trial Court was that

the plaintiffs filed suit for permanent injunction restraining

defendants from interfering with the peaceful possession and

enjoyment in respect of the property bearing Sy. No.1078/25

situated at Nagarthpet, Bengaluru, measuring East to West 12

square feet and North to South 27 square feet (hereinafter

referred to as 'suit schedule property').

NC: 2023:KHC:35743 RFA No. 1180 of 2017

5. It is further contended that, the 2nd and 3rd plaintiffs are

the children of the 1st plaintiff and grand children of 1st

defendant, 2nd defendant is also grand son of 1st defendant,

3rd and 4th defendants are the sister-in-laws of the 1st

plaintiff. 1st plaintiff's father-in-law late Venkataramanappa

i.e., husband of 1st defendant executed a "Will" in favour of his

sons late Krishnamurthy and V.Govindappa @ Govindraj,

husband of the 1st plaintiff, in respect of suit schedule

property. In the said "Will" there is a specific recital that his

son Krishnamurthy is suffering from Tuberculosis disease and

also unmarried. Accordingly, he is having only life interest over

the property and another son Govindappa shall look after

Krishnamurthy regarding his treatment and other aspects. The

1st plaintiff's father-in-law died in the year 1997 and

subsequently, her husband Govindappa also passed away and

thereafter, 1st plaintiff's husband and father of plaintiff Nos.2

and 3 were in the possession of the property and the

defendants are interfering for the suit schedule property.

Plaintiffs have asserted that husband of 1st plaintiff informed

about the existence of the "Will' and came to know about their

legitimate right, possession and ownership over the suit

NC: 2023:KHC:35743 RFA No. 1180 of 2017

schedule property, but the defendants trying to take possession

over the schedule property and causing interference. Hence,

the plaintiffs filed the suit for reliefs.

6. Summons were issued to the defendants and 1st

defendant appeared and filed her written statement asserting

that, plaintiffs are neither the owners nor they are in

possession of any portion of the suit schedule property and one

M.Manjula, was the absolute owner and defendant Nos.2 to 4

were in possession of the suit schedule property along with her.

7. Based upon these pleadings, the trial Court framed the

following issues:-

1. Whether the plaintiffs prove that they are in possession of the suit schedule property?

2. Whether the plaintiffs prove that, the interference of the defendants?

3. Whether the plaintiffs are entitle for relief as sought for?

4. What order or decree?

8. The 1st plaintiff herself examined as PW.1 and got

marked 7 documents as per Exs.P.1 to P.7 and matter was

NC: 2023:KHC:35743 RFA No. 1180 of 2017

posted for cross-examination but the plaintiff not appeared for

cross examination and the evidence of the plaintiff taken as

discarded by order dated 23.03.2016. Later, the matter was

posted for defendants' evidence, accordingly, 2nd defendant

got examined himself as DW.1 and marked 2 documents as per

Exs.D1 and D2. Subsequently, the trial Court proceeded to

pass decree by decreeing the suit which is under challenge.

9. The learned counsel for the appellants contended that the

plaintiffs though got examined but later not appeared before

the Court. Therefore, the trial Court discarded the evidence of

PW.1 as on 23.03.2016 and no further evidence was led by the

plaintiffs.

10. In spite of non-examination of any witnesses on behalf of

the plaintiffs and there being no evidence of plaintiffs, the trial

Court posted the matter for evidence of defendants and without

the evidence of plaintiffs, the suit came to be decreed, which is

barred in law and even otherwise, the schedule property was

ancestral property and the property is not directed to

Venkatarmanappa, whose 'Will' has not been proved and there

is no grounds to decree the suit.

NC: 2023:KHC:35743 RFA No. 1180 of 2017

11. Upon hearing the arguments of the learned counsel for

the appellants, the point that arises for consideration is:

1) Whether the judgment of the trial Court call for interference?

12. On hearing the arguments of the learned counsel for the

appellants and on perusal of the judgment at paragraph No.9,

it is clearly mentioned that though 1st plaintiff examined

herself as PW.1 and got marked 7 documents and later not at

all subjected herself for cross-examination and hence, her

evidence came to be discarded by the trial Court vide order

dated 23.3.2016 and also the plaintiff did not even lead any

further evidence. On the other hand, the defendants led

evidence and marked documents. However, the trial Court

proceeded to pass decree in favour of the plaintiff. On perusal

of the entire judgment, it runs about 3 to 4 pages mentioning

the pleadings and the reason given on merits even though the

plaintiffs' evidence was discarded and considered as 'Nil

evidence' as of plaintiffs. When the plaintiff approaches the

Court making some allegations against the defendants, the

plaintiffs to prove their case regarding lawful possession and

NC: 2023:KHC:35743 RFA No. 1180 of 2017

enjoyment of the property, the interference caused by the

defendant and show that they are entitled for the decree and

the injunction against them.

13. On perusal of the documents establishes the judgment of

the trial Court, the trial Court categorically held that the

examination-in-chief of PW.1 i.e., 1st plaintiff was expunged or

discarded from the record that means there is "Nil evidence" of

the plaintiff, in the case. When there is no evidence of plaintiffs,

the trial Court has committed an error in posting the case for

defendants' evidence instead of dismissing the suit for non-

prosecution.

14. Even otherwise, the Order XVII Rule 3 of CPC when party

does not appear, if the maximum evidence is adduced by the

party, the Court can proceed with the case, but, here in this

case, the trial Court expunged the evidence of plaintiffs by

discarding from the record, such being the case as it was taken

as 'nil evidence' or 'no evidence' of the plaintiff. Therefore,

decreeing suit is illegal and therefore, the judgment of the trial

court is liable to be set aside.

NC: 2023:KHC:35743 RFA No. 1180 of 2017

15. Accordingly, the appeal is allowed.

The judgment and decree passed by XI Addl. City Civil

Judge, Bengaluru in O.S. No.2004/2012 dated 24.03.2017 is

hereby set aside. The suit of the plaintiffs is hereby dismissed.

Sd/-

JUDGE

PSJ