Karnataka High Court
Sri Lakshmana vs Sri Thimmappa on 14 February, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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RFA No. 609 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 609 OF 2021 (RES)
BETWEEN:
1. SRI LAKSHMANA
SINCE DEAD DELETED
V/O DATED: 14.02.2024.
2. SRI GANESHA
S/O LATE BORAIAH
AGED ABOUT 65 YEARS
R/AT DOOR NO.649
KABIR KHAN ROAD
NAZARABAD MOHALLA
MYSURU-570 010.
3. SRI SURAYANARAYANA
S/O LATE KALAIAH
AGED ABOUT 48 YEARS
R/AT DOOR NO.386
Digitally signed
by HEMALATHA JETTIBEEDI, NAZARABAD MOHALLA
A MYSURU-570 010. ...APPELLANTS
Location: High
Court of
Karnataka (BY SRI. PRASANNA V R., ADVOCATE FOR A2 & A3
APPELLANT NO.1 ABATED V/O DATED: 14.02.2024)
AND:
1. SRI THIMMAPPA
S/O LATE BILIGERI
AGED ABOUT 68 YEARS
R/AT DOOR NO.160
KSRTC LAYOUT
T N PURA ROAD
MYSURU -570 028.
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RFA No. 609 of 2021
2. SRI SHANKAR
S/O LATE MANCHAIAH
AGED ABOUT 62 YEARS
R/AT DOOR NO.417
BESTARAGERI
NAZARABAD MOHALLA
MYSURU-570 010.
3. SRI M CHANDRA
S/O LATE MANCHAIAH
AGED ABOUT 55 YEARS
R/AT DOOR NO.417/2
BESTARAGERI
NAZARABAD MOHALLA
MYSURU-570 010 ...RESPONDENTS
(BY SRI. KRISHNAMURTHY G HASYAGAR., ADVOCATE
FOR C/R1, 2 & R3)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED 23.12.2020
PASSED IN OS.NO.2/2018 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, MYSURU, DECREEING THE
SUIT FOR APPOINTING OF TRUSTEES AND FURNISH
ACCOUNTS.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendants under Section
96 of Civil Procedure Code, challenging the order, dated
23.12.2020 passed by the Principal District and Sessions
Judge, Mysuru in O.S.No.2/2018, whereby the suit filed by
the plaintiffs is decreed.
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2. For the sake of convenience, the parties are
referred to as per their rankings before the trial court.
3. The brief facts of the case are that a Trust has
been established in the year 1944 in the name of 'Hatthu
Janagala Garadi'. The plaintiffs who are the beneficiaries
under the Trust have filed a Misc. Petition No.164/2015
under Section 92 of CPC seeking leave of the Court to file
a suit for settling the scheme and for re-constitution of the
Trust on the ground that there is a mis-management of
the Trust property. After obtaining the leave, they have
filed the present suit in O.S.No.2/2018. After service of
summons, defendants appeared through their counsel and
filed a detailed written statement contending that the suit
in the present form is not maintainable in the eye of law
and they have not impleaded necessary parties and sought
for dismissal of the suit. On the basis of the pleadings of
the parties, the trial court framed the following issues:
(1) Whether the plaintiffs prove that,
defendants indulged in illegal activities including
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dismantling the suit property, i.e., Garadi and
converting the same into shop premises and
misusing the funds of Garadi for their own use?
(2) Whether the plaintiffs prove that,
defendants failed to render and maintain proper
accounts in respect of suit property, i.e., Garadi?
(3) Whether the plaintiffs are entitled to seek
for framing a scheme for proper management of
Garadi by appointing Trustees?
(4) Whether the defendants are liable to be
restrained from converting suit Garadi premises
into commercial premises?
(5) Whether the plaintiffs are entitled for the
reliefs sought for?
(6) What order or decree?
4. To prove the case, plaintiff No.3 Thimmappa has
been examined as PW1 and got marked documents as Exs.
P1 to P11 and he has been cross-examined by the
defendants. Inspite of giving opportunity, the defendants
neither examined any witness nor produced any
documents. On the basis of the oral and documentary
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evidence, the trial court answered issue Nos. 1 to 5 in the
affirmative and decreed the suit. Being aggrieved by the
same, the defendants are before this Court.
5. Sri Prasanna V.R., the learned counsel appearing
for the appellants/defendants has raised the following
contentions:
(i) Firstly, the defendants were not mis-managing
the Trust and properties of the Trust and they have not
dismantled the Garadi situated in Trust property. The
commercial complex has been constructed without
dismantling the Garadi. The trial court has not given
opportunity to the defendants to defend their case.
(ii) Secondly, since there was no proper
communication between the defendants and their counsel,
inspite of the trial court granting several opportunities, the
defendants were unable to adduce the evidence and
produce the necessary documents. They have also filed
an application before this Court and produced additional
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documents. If this Court gives one more opportunity, they
will establish their case. Hence, sought for allowing the
appeal.
6. Per contra, Sri Krishnamurthy G.Hasyagar,
learned counsel appearing for the respondents/plaintiffs
has raised the following contentions:
(i) Firstly, there is a specific allegation against the
defendants that they are trying to dismantle the existing
Garadi and to construct a commercial complex. They have
also produced corporation records to show that
commercial complex has been constructed in the property
which belongs to the Garadi.
(ii) Secondly, the defendants have mis-managed the
properties of the Garadi and also mis-managing the
income of the Garadi and they have not furnished the
accounts. Therefore, in the interest of Garadi, the plaintiffs
have filed a suit for settlement of scheme and re-
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constitution of the Management Trust and also sought for
a direction to furnish the accounts to the Court.
(iii) Thirdly, the trial court has granted more than 23
times opportunity to the defendants, but the defendants,
neither produced any document nor examined any
witnesses. There is no other alternative for the trial court
but to consider the evidence of PW1 and documents
produced by the plaintiff and the trial court rightly decreed
the suit. Pursuant to the said decree, the Tahasildar had
constituted a new trust and now the new trustees are
managing the Trust.
(iv) Fourthly, this Court, by order, dated 20.01.2022,
held that all steps initiated by the Tahasildar, Mysuru
pursuant to the judgment and decree, dated 23.12.2020,
in O.S.No.2/2018, is subject to the result of the appeal.
Hence, he sought for dismissing the appeal.
7. Heard the learned counsel for the parties.
Perused the judgment and decree and the original records.
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8. The only point that arises for consideration in
this appeal is, 'Whether the judgment and decree passed
by the trial court is perverse, arbitrary and calls for
interference of this Court'?
9. The plaintiffs are the persons interested and the
beneficiaries of the Garadi. They filed a Misc. Petition
No.164/2015 before the Principal District & Sessions
Judge, Mysuru under Section 92 of CPC, seeking leave of
the Court to file a suit being a scheme suit. The Misc.
Petition has been allowed by order, dated 26.03.2018 and
plaintiffs filed a suit in O.S.No.2/2018 for re-constitution of
the Trust management by appointing new trustees and
also a direction to the respondents to furnish the accounts
to the Court on the ground that the respondents have mis-
managed the fund and properties of the Garadi.
10. I have gone through the original records and
the order sheet. Inspite of granting sufficient opportunity,
the defendants, except filing the written statement and
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cross-examinig PW1, have not adduced any evidence and
not produced any document. Now, for the first time,
before this Court, they filed an application with some
additional documents.
11. Learned counsel for the appellants/defendants
submitted that since there was no proper communication
from their advocate, the defendants have not properly
prosecuted their case. The trial court, on the basis of the
evidence of PW1 and the documents produced by the
plaintiffs, has decreed the suit. Pursuant to the decree,
the Tahasildar appointed new trustees and the trust is also
registered on 21.09.2023. Now, the new management is
managing the Garadi. Even though several opportunities
have been given to the defendants, they have not
produced any document and examined the witnesses.
Therefore, to give one more opportunity, I am of the
opinion that the matter requires to be remitted back to the
trial court for fresh consideration. The point framed by
this Court is answered accordingly.
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12. In view of the above, , I pass the following
order:
(1) The appeal is allowed.
(2) The judgment and decree dated 23.12.2020
passed in O.S.No.2/2018 by the Principal District and
Sessions Judge, Mysuru is set aside.
(3) The matter is remitted back to the trial
court with a direction to re-consider the matter afresh,
in accordance with law, from the stage of evidence of
the defendants, with liberty to the parties to adduce
additional evidence and produce additional documents.
(4) It is made clear that the Committee already
constituted, as per the judgment and decree, dated
23.12.2020, will be continued, but the same is subject
to the result of the suit.
and 3 shall furnish the accounts to the court within
three months from the date of certified copy of this
order. If they have not furnished the accounts within
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the stipulated time, the trial court shall confirm the
judgment and decree dated 23.12.2020.
(6) The parties are directed to be present before
the trial court on 20.03.2024, without any further
notice and the trial court is directed to dispose of the
suit, as expeditiously as possible, at any rate, within
six months from the date of appearance of the parties.
(7) In view of disposal of the main appeal, all the
pending applications do not survive for consideration.
Sd/-
JUDGE
CM
