Karnataka High Court
Sri.Kiran S/O Dattatrey Aswale vs Smt.Kirti Rajendra Gore on 20 February, 2024
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RFA No. 100503 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100503 OF 2018 (PAR/POS)
BETWEEN:
SRI.KIRAN S/O DATTATREY ASWALE
AGED ABOUT 46 YEARS, OCC:PRIVATE SERVICE
RESIDENT OF PLOT NO.29, RS NO.125/A2
BASAVESWAR CO-OPERATIVE SOCIETY
VIDYAGIRI BAGALKOT.
...APPELLANT
(BY SRI. KISHOR SUTAR AND
MISS. SHEBA A. KHANAPUR, ADVOCATES)
AND:
SMT.KIRTI RAJENDRA GORE
AGED 41 YEARS, OCC:HOUSEHOLD WORK
RESIDENT OF A/2/41, KALPAKALYAN SOCIETY
BIBIWADI PUNE VIDYAGIRI,
RS NO.125/A2, PLOT NO.29 OF MURNAL
Digitally signed BASAVESWAR CO-OPERATIVE SOCEITY
by
SHIVAKUMAR VIDYAGIRI BAGALKOT-587101.
HIREMATH
Date: ...RESPONDENT
2024.02.23
13:17:25 +0530 (BY SRI. H.R. DESHAPANDE, ADVOCATE)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF
THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR RECORDS
AND SET ASIDE THE JUDGMENT AND DECREE DATED 20.10.2018
PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC.,
BAGALKOT IN O.S.NO.12/2013 AND CONSEQUENTLY DISMISS THE
SUIT FILED BY THE PLAINTIFF CONSIDERING THE FACTS AND
CIRCUMSTANCES OF THE CASE WITH EXEMPLARY COSTS AND SET
ASIDE THE ORDER DATED 20.10.2018 PASSED BY THE 1ST
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., BAGALKOT ON I.A.
NO.10 IN O.S.NO.12/2013 IN THE INTEREST OF JUSTICE AND
EQUITY.
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RFA No. 100503 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:
JUDGMENT
This first appeal is filed by the appellant challenging the
judgment and preliminary decree dated 20.10.2018, passed by
the I Addl. Senior Civil Judge, Bagalkot (hereinafter referred to
as 'trail court') in O.S No.12/2013, wherein the learned trial
Court has decreed the suit in favour of the respondent herein.
2. For the sake of convenience, the parties herein are
referred to as per their rankings before the trial Court.
Appellant is the defendant and respondent is the plaintiff before
the trial Court.
3. Brief facts of the plaintiffs case are as under -
Plaintiff has filed a suit for partition and separate
possession contending that, plaintiff is the daughter of the
propositus Sri. Dattatrey, who expired intestate, leaving behind
his wife, plaintiff and defendant. Thereafter, the mother of the
plaintiff and defendant i.e., the wife of the propositus also died
on 11.12.2020. Subsequently, a survivor certificate was issued
by the Tahasildar, Bagalkot in the name of plaintiff and
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defendant, as they are the legal heirs of the deceased
Dattatrey. Further, plaintiff plead that, the propositus had
owned a property in Ward No.7, CTS No. 284A of Bagalkot city
and after the property was acquired in the Upper Krishna
Project, as per the scheme of rehabilitation, the Government
allotted the land in Sector No. 20, Plot No.14 and because the
defendant was managing the family affairs, the title deeds of
the said plot was registered in the name of the defendant.
4. Further, plaintiff has pleaded in her plaint that, as
the deceased propositus was a professor in Basaveshwar
Engineering College and as such, he had made huge savings
from his earnings and after the death of the propositus, the
same fell into the possession of defendant. Further, as
defendant was taking care of the mother of plaintiff and
defendant, after her death in the year, 2010 all the gold and
silver of the parents of the plaintiff, i.e., propositus and his wife
Sarala, was in the possession of the defendant and accordingly,
out of the said source, defendant purchased a site in Sector
No.20 Plot No. A-43. Similarly, both mother of the plaintiff
along with defendant also purchased another non-agricultural
plot at Simikeri, Pune, bearing R.S.No.33/B, Plot No.21 out of
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the income generated from the properties of the propositus.
They also purchased another plot No. 29 in non-agricultural
property bearing R.S.No. 125/A2 of Murunal situated at
Vidyagiri Bagalkot which, after the death of the propositus, was
mutated in the name of plaintiff and defendant.
5. Further, the plaintiff pleads that, the defendant has
obtained signatures from her on the blank sheets and got
deleted her name from the record of rights of R.S.No.125/A2 so
also Plot No.29. Further, the above mentioned properties being
obtained from the income and self-acquired properties of the
deceased propositus, plaintiff pleads that, she is entitled for a
share in the suit schedule 'B' properties. Plaintiff also further
pleads that, the deceased propositus and his wife had opened a
locker in BDCC Bank, Bagalkot Branch, Bagalkot i.e, Locker
No.38, and had kept their savings so also the gold and silver
articles in them and after their demise, the defendant behind
the back of the plaintiff has taken them and used it for his own
purposes. As such, when she came to know about the behavior
of the defendant, she, along with her husband, approached
defendant seeking for the share in the properties and when the
defendant denied the same, aggrieved by which, plaintiff has
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filed the suit praying for a decree of partition be passed in her
favor to effect an equitable partition in the suit schedule 'B'
properties by metes and bounds and the plaintiff be awarded
her legitimate half share in those properties with possession.
Plaintiff has also prayed to call for the accounts pertaining to
joint family income and to award her legitimate half share in
the said income.
6. After issuance of summons, the defendant has
appeared through his counsel and filed the written statement
and by denying the averments made by the plaintiff, contended
that, the propositus, being the lecturer in the Basaveshwar
Science College, Bagalkot, has no other source of income, apart
from the salary he was getting from his job. Further, the
propositus, out of his salary income has also made efforts to
provide good education to his children i.e., plaintiff and
defendant, so also performed the marriage of plaintiff at the
cost of Rs.3 lakh and to her marriage, he has also given more
than 25 tolas of gold and cash of Rs.2,00,000/- to the husband
of the plaintiff. It is also contended in the written statement
that, the gold and cash were also given to the plaintiff and her
husband during festivals like Nagara Panchami, Deepavali etc.
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Plaintiff has completed her B.Ed and B.L.D Education in Bijapur
college and the expenses of the same were born by the
deceased propositus himself.
7. Defendant in his written statement has further
contended that, the deceased propositus, being the member of
the Basaveshwar Co-Operative Society, from the savings made
in the said society, purchased the plot No. 29 in non-
agricultural property bearing R.S.No. 125/A2 of Murnal situated
at Vidyagiri Bagalkot. Further, after the death of propositus,
defendant has quit his job in Pune and joined as lecturer in
Basaveshwar Polytechnic College, Bagalkot and thereafter, the
above plot that was purchased by the father to construct the
house, was mutated in the name of defendant and plaintiff and
so also in the name of Sarala i.e., the mother of the plaintiff
and defendant
8. The defendant further contend that, the plaintiff
approached the defendant seeking for financial assistance to
purchase a house in Pune and for which, she promised that she
will give-up the right over the suit schedule properties and
accordingly, defendant paid Rs.1,50,000/- by way of cash and
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on 30.11.2000, he has again paid Rs.1,95,000/- by way of
demand draft drawn in the name of husband of the plaintiff.
Further, in this connection, plaintiff has executed a writing on
29.04.2000, in favour of Defendant and his mother-sarala;
stating that, she has no right and share in the suit schedule
properties situated at Vidyagiri. The defendant further contends
that, after taking the financial aid from him, plaintiff has
purchased the plot apartment bearing No.A/2/41 in Kalpakalya
Society Bibiwadi, Pune with the money received from the
plaintiff. Accordingly, the defendant deleted the name of the
plaintiff from the record of rights of the property situated at
Vidyagiri i.e., plot No. 29 in non-agricultural property bearing
R.S.No. 125/A2 of Murnal situated at Vidyagiri Bagalkot.
9. He has further contended in his written statement
that, plot No.43 in sector 20 at Navnagar, has been granted by
the Government of Karnataka to the defendant and he has paid
the consideration amount of Rs.5,400/- to the B.T.D.A.
Bagalkot and he, in the year 2004, out of his own earning, has
constructed the house in the said property and he is in
possession and enjoyment of the same and defendant also
avers that, the plot No. 14 in Sector 20 allotted to the deceased
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propositus is standing in the name of the deceased propositus
itself.
10. Further he would contend in his written statement
that, the property in plot No. 21 in non-agricultural land
bearing R.S. No.33/B of Simikeri Village, was purchased by the
mother of the defendant and after her death, the property has
been mutated in the name of both plaintiff and defendant.
Further, when the mother of the defendant fell ill, she
distributed her ornaments to the plaintiff and wife of the
defendant and accordingly, the wife of the defendant, kept the
same in the B.D.C.C Bank, Bagalkot Branch and as such,
plaintiff is no-way concerned to the items kept in the locker and
would contend that, the ornaments in the locker would belong
only to him.
11. Further, plaintiff again approached the defendant,
seeking financial assistance and accordingly, in the year 2012,
defendant, by way of cash, has given the amount of
Rs.1,00,000/- and also 50,000/- to plaintiff and her husband
respectively and in return, it was the understanding between
the plaintiff and defendant that, plaintiff has given-up the rights
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in the property bearing plot No. 21 in non-agricultural land
bearing R.S.No.33/B of Simikeri village. Defendant has also
contended in his written statement that, the plaintiff is not in
possession of the suit schedule properties and hence, the
valuation made by the plaintiff is also not maintainable under
the law. Accordingly, he prayed for dismissal of the suit.
12. The trial Court on the basis of the pleadings of the
parties framed the following issues:
i. Whether plaintiff proves that, all the suit properties
are joint family properties of plaintiff & defendant
and they have half share each in there?
ii. Whether defendant proves that, he paid
Rs.4,00,000/- in 2000 another Rs.1,50,000/- in 2012
to plaintiff and lieu of it, plaintiff relinquished her
right, title and interest in suit properties in favour of
defendant?
iii. Whether defendant further proves that, without
putting plot No.A-2/41 of Kapakalyan society
Bibiwadi Pune, in the common hotch-pot this suit is
not maintainable?
iv. Whether the defendant further proves that, plot
No.43 in sector No.20 of Navanagar is self-acquired
property of himself.
v. Whether defendant further proves that, all the gold
ornaments of deceased Sarala distributed any
plaintiff and wife of defendants. Therefore, plaintiff
has no share in there?
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vi. Whether defendant proves that, Court fee paid is
insufficient?
vii. Whether defendant proves that, plaintiff has no
cause of action to file this suit?
viii. Whether plaintiff is entitled for the relief sought for?
ix. What order or decree?
13. The plaintiff in support of her claim has got herself
examined as P.W.1 and got marked 4 documents as Ex.P.1 to
Ex.P.4. The defendant has neither examined any witnesses nor
got marked any documents in support of his defense since, trial
Court, after giving three opportunities to lead defense
evidence, the defendant failed to lead any evidence and hence,
trial Court closed the defendant evidence as Nil.
14. Subsequently, learned trial judge after assessment
of oral and documentary evidences produced, was pleased to
answer the issue Nos.1 and 8 in affirmative and issue Nos.2 to
7 in the negative and issue No. 9 as per the Final Order and
was pleased to decree the suit filed by the plaintiff, by declaring
that, the plaintiff is having 1/4th notional share in the suit
schedule 'B', item Nos. 1,3 to 5 properties and also held that
put the plaintiff in the possession of her 1/4th notional share in
item 1, 3 and 4 of suit schedule 'B' properties. The trial Court
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also held that, the plaintiff is having ½ share in suit schedule
item No.2 property and put the plaintiff in the possession of her
½ share in suit scheduled 'B', item No.2 property and effect the
partition by metes and bounds in the suit schedule 'B' item
Nos.1 to 4 properties so also held that, the plaintiff is having
her 1/4th share in the item No.5 of suit schedule 'B' properties
by filing separate petition under probate and succession Act.
Aggrieved by the same, this appeal is filed by the defendant
questioning the correctness of the impugned Judgment and
preliminary decree passed by the trial Judge.
15. Heard learned counsel Sri. Kishor Sutar and Sri.
Sheba a Khankapur for Sri. Sunil S Desai, learned counsel for
the defendant and learned counsel Sri. H. R. Deshpande,
learned counsel for defendant No.1 and caveator/defendant
Nos.2. Defendant Nos. 3 to 5 though notice is served, they
remained unrepresented.
16. Learned counsel for the defendant/appellant would
contend that, the judgment under appeal suffers from
infirmities as the learned trial Judge has failed to consider the
case in right perspective by properly appreciating the material
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evidences available on record. He would also contend that, the
trial judge has not awarded sufficient opportunity for the
defendant to lead his side of the evidence and also produce the
documents in justification of his defense. He would also
contend that, though the learned trial Judge while appreciating
the evidence of PW.1, has observed that, PW.1 has admitted
that she had received the consideration amount to relinquish
the suit schedule properties, but has proceeded to answer the
issue raised in that regard negatively.
17. Further, learned counsel contend that, though
Thasiladar, Bagalkot was examined by trial Court as a witness,
but the trial Court has failed to consider and also appreciate the
documents and evidences produced by Tahasildar, during the
course of his evidence. Further, the property in M.E.No.9101,
has been certified in the year 2000-2001 itself and trial Court
erred in not considering the fact that, the plaintiff till the date
of filing the suit, has not challenged the said mutation; though
she was aware of the same and hence, learned counsel for the
appellant/ defendant would contend that the learned trial Judge
has erred in considering the evidence produced before him in
the right perspective.
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18. Learned counsel for the defendant would further
submit that, plaintiff was given nearly 4 years to lead her
evidence and on the other hand, learned trial Judge has failed
to consider the fact that the defendant has sought for time to
lead the evidence on the ground that, the original documents
were in the custody of his friend, who resides in Bagalkot and
also on the ground that defendant was not well to give
sufficient instructions to his counsel and to lead evidence.
Further, learned counsel also contend that, the defendant is not
aware of the Kannada language and in order to know the
procedures and understand the proceedings before entering
into witness box, the defendant had sought for time, by filing
an Interim Application No. 10 and the learned trial Judge
without appreciating the fact above mentioned, proceeded to
dismiss the same on 20.10.2018.
19. Further, the learned counsel would also vehemence
his arguments contending that, the trial Court framed nine
issues and except the issue No.1, the burden to prove all other
issues were on the defendant and hence, it was very much
necessary to allow the defendant to lead his evidence by
producing necessary documents in support of his case and for
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this reason, he would contend that the trial Court has hurriedly,
without giving the sufficient opportunity for the defendant to
present his side of the case, proceeded to pass the judgement
and decree in favour of the plaintiff. On these grounds, the
defendant/appellant prays for setting-aside the judgment and
decree passed by the learned trial Judge so also to set-aside
the order dated 20.10.2018, on Interim Application No.10,
passed by the learned trial Judge.
20. Per contra, learned counsel for the plaintiff in
support of the findings recorded by the learned trial Judge,
reiterated the contentions urged in his plaint and vehemenced
his submission that, learned trial judge has passed the
impugned judgement and decree after examining all the
evidences and documents made available by the plaintiff in
support of her claim. He would further contend that, the
defendant has purchased all the properties out of the income
that was arrived from the suit schedule 'B' properties and
plaintiff is entitled to claim, equal share in all the suit schedule
properties. He would also submit that, the trial Court after
appreciation of the evidence produced before it has rightly
found that the ornaments and cash kept in the locker i.e., item
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No.5 suit schedule 'B' properties, requires to be divided among
the plaintiff and defendant as per metes and bounds for the
reason, the same belongs to their mother and accordingly, held
that, she can proceed in accordance with law to obtain the
same. Hence on these grounds plaintiff prays for dismissal of
the appeal by confirming the judgement and preliminary decree
passed by the learned trial Judge.
21. Having heard the respective parties and on perusal
of the records made available before this Court. The points that
would arise for our consideration are that;
"i. Whether the defendant has proved that, he
was not given sufficient opportunities to lead his
evidence before the trial Court to prove his
defense in his case?
ii. Whether, the learned trial judge is justified in
passing the judgment and preliminary decree in
favour of the plaintiff relying on the evidence of
the plaintiff alone?
iii. Whether the judgment and preliminary
decree passed by the trail Court suffers from
perversity, arbitrariness, unjustness and illegality
thereby requiring the interference of this Court?
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iv. What Order?
22. Point Nos.(i) and (ii): Since both these
points are interlinked with each other, they are taken up
together for common discussion to avoid repetition of facts.
Accordingly, on perusal of the evidences produced before
the trial Court, in order to prove the case of the plaintiff, she
herself has stepped into the witness box as PW.1 and reiterated
the contents of the plaint and deposed that, she is the daughter
of the propositus Sri. Dattatrey, who expired intestate leaving
behind his wife, herself and the defendant. Thereafter, the
mother of the plaintiff and defendant i.e., the wife of the
propositus also died on 11.12.2020. Subsequently, a survivor
certificate was issued by the Tahasildar, Bagalkot, in her name
and in the name of defendant as they are the legal heirs of the
deceased Dattatrey. Further, the propositus had owned a
property in Ward No.7, CTS No. 284A of Bagalkot city and after
the property was acquired in the Upper Krishna Project, as per
the scheme of rehabilitation, the Government allotted the land
in Sector No. 20, Plot No.14 and because the defendant was
managing the family affairs, the title deeds of the said plot was
registered in the name of the defendant. Plaintiff has, in his
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evidence, also stated that, as the deceased propositus was a
professor in Basaveshwar Engineering College, he had made
huge savings from his earnings and after the death of the
propositus, the defendant took care of the same. Further, as
defendant was taking care of the mother of plaintiff and
defendant, after her death in the year, 2010 all the gold and
silver of the parents, are also in the possession of the
defendant and accordingly, out of the said source, defendant
purchased a site in Sector No.20 Plot No. A-43. Similarly, both
mother of the plaintiff along with defendant also purchased
another non-agricultural plot at Simikeri, Pune, bearing
R.S.No.33/B, Plot No.21 out of the income generated from the
properties of the propositus. Further, they have also purchased
plot No. 29 in non-agricultural property bearing R.S.No. 125/A2
of Murunal situated at Vidyagiri Bagalkot which, after the death
of the propositus, was mutated in the name of plaintiff and
defendant.
23. Further, the defendant has obtained signatures
from her on the blank sheets and got deleted her name from
the record of rights of R.S.No.125/A2 so also Plot No.29.
Further, she states that the deceased propositus and his wife
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had opened a locker in B.D.C.C Bank, Bagalkot Branch,
Bagalkot i.e, Locker No.38, and had kept their savings so also
the gold and silver articles in them and after their demise, the
defendant behind the back of the plaintiff, has taken them and
used them for his own purpose. Therefore, when she came to
know about the behavior of the defendant, she, along with her
husband approached defendant seeking for the share in the
properties and when the defendant denied the same,
aggrieved, plaintiff has filed the suit. In support of her evidence
she has produced the RTC records pertaining to the item Nos. 1
and 2 of suit schedule 'B' properties as per Ex.P1 and Ex.P2 and
she has also produced the death certificate of the propositus
and his wife as per Ex.P3 and Ex.P4.
24. On the other hand, the defendant, though have
contested the case by filing his written statement, but has
failed to examine the documents or the witnesses in support of
his claim. Further, after going through the order sheets of the
trial Court, we find that, trail Court after completion of the
evidence of the plaintiff on 14.09.2018, has posted the suit on
25.09.2018, 05.10.2018 and 09.10.2018 for the defendant
evidence. But neither the counsel nor the defendant were
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present on the said dates and hence, the learned trial Judge
has proceeded to pass the judgment and preliminary decree in
favor of the plaintiff.
25. After examining the evidences and pleading of the
plaintiff so also the written statement of the defendant along
with the issues framed, we find that, the issue No.1 puts the
burden on the plaintiff to prove that the suit schedule
properties are the joint family properties and in support of the
same she has produced the RTCs of the item Nos. 1 and 2 of
the schedule 'B' properties. And on this sole ground, the trial
Court has proceeded to decree the suit filed by the plaintiff.
26. On the other hand, all the other issues, which, the
trial Court has framed shifts the burden on the defendant to
prove his defense pleaded in the written statement by leading
cogent evidences i.e., defendant shall prove by producing
cogent evidences that, the suit schedule 'B' properties are the
properties either owned by defendant from his own earning or
the properties relinquished by the plaintiff in favour of the
defendant. In order to prove the same, though the defendant
did not appeared on the date specified above, he has appeared
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before the trial Court on the future date and filed an application
for re-calling the order dated 09.10.2018, citing the reasons
that, the original documents were in the possession of his
friend in Bagalkot and he was unwell to give proper instructions
to the counsel and he has also stated he is not a resident of the
Karnataka State and he is unaware of the language and
procedures of the proceedings. However, the trial Court
proceeded to dismiss the application and proceeded to decree
the suit. Which in our opinion, is in violation of principles of
natural justice. As we find, the reasons accorded in the
application was justifiable, for the reason that, a fair
opportunity would have been provided to the defendant, to put-
forth his defense before the trial Court. This Court would also
rely upon the decision of the Hon'ble Apex Court in
Parmanand v. Bajrang, reported in (2001) 7 SCC 705,
wherein, the Hon'ble Apex Court in paragraph No.5 has held as
under -
"5. We have heard learned counsel and perused the
record. It was for Defendant 1 to prove that the sale
agreement, execution whereof was admitted by him,
in fact, was not intended to be a real sale agreement
and it was only a security for the loan advanced to him
by the plaintiff. Defendant 1 could not lead any
evidence as adjournment to produce the evidence was
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denied to him. Whether there was any pressure on
Defendant 1 and/or the sale agreement was executed
only as a security for loan, it was for him to prove. We
do not wish to say anything more lest it may prejudice
the case of any of the parties. As earlier noticed,
Defendant 1 in his appeal before the High Court
sought remand of the suit to the trial court for an
opportunity to lead evidence. On the facts and
circumstances of the case, the relief that could be
given to Defendant 1 was to grant an opportunity to
him to lead evidence before the trial court instead of
recording a finding as above without any evidence and
on that basis dismissing the suit. Counsel for the
appellant has no objection if an opportunity is granted
to respondent-Defendant 1 to adduce evidence in the
suit."
(Emphasis supplied by Us)
27. Hence, even in the case on hand, as discussed
supra, we feel that, in order to prove all the issues and to
arrive at a reasonable conclusion, the evidence of defendant is
a must and in our opinion, trail Court has erred in not
considering the application filed by the defendant and not
providing the opportunity for the defendant to put forth his
evidence, when he has contended in his written statement that
the suit schedule properties purchased by him in his salaried
income. As such, we answer the above raised point Nos.(i) and
(ii) in the affirmative.
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28. Point No.(iii): For the discussion made
hereinabove, we find that, the defendant has not been given
sufficient opportunity to lead the evidences in support of the
case. In our opinion, the trial Court ought not have dismissed
the I.A.No.10 filed by the defendant for the reason that, the
cause shown in the said application is in our opinion is a
bonafide one. When the dispute involves the question of title of
the property, trail Court would not have rushed to pass an
order of preliminary decree in favour of the plaintiff, without
even providing opportunity to defendant to lead his evidence.
Hence, we are of the considered opinion that, the judgment
passed by the trial Court, without giving sufficient opportunity
to the defendant is arbitrary and unreasonable and requires
interference. Accordingly, we answer the above raised point
No.(iii) in the affirmative.
29. Point No.(iv): In view of the above discussion, we
proceed to pass the following -
ORDER
i. First appeal is allowed.
ii. Impugned judgment and preliminary
decree dated 20.10.2018 passed by Addl.
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Senior Civil Judge and JMFC, Bagalkot in
O.S.No.12/2013 is set-aside, subject to
payment of cost of Rs.50,000/- payable by
the defendant to the plaintiff on the date of
appearance before the trial Court;
iii. The suit is restored;
iv. Matter is remitted to trial Court for fresh
disposal in accordance with law;
v. All the contentions of both parties are kept
open;
vi. It is clarified that there is no opinion is
expressed on merits;
vii. The trial Court is directed to provide an
opportunity to the defendant to lead their
evidence and the defendants shall conclude
the evidence within one month from the
date of appearance, as the suit is of the
year, 2013;
viii. Opportunity is also reserved to the plaintiff
to lead further evidence, if so desired;
ix. Parties to appear before trial Court without
awaiting for fresh notice on 11.03.2024;
x. In case no evidence is led on the date
specified by the trial Court, the trial Court
to consider evidence already on record,
hear both parties and pass judgment
afresh on merits in accordance with law
forthwith;
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xi. In case, the evidences are lead, it shall
record the same and thereafter dispose of
the suit as expeditiously as possible;
xii. In case, if the defendants failed to deposit
the cost as on the date of appearance, the
defendants are not entitled for the benefit
of this Judgment.
xiii. Since appeal is remitted, appellant would
be entitled for refund of full court fee as
per Section 64 (1) of Karnataka Court Fees
and Suits Valuation Act;
Registry is directed to communicate the copy of this
Order to learned trial Judge and also to return the trial Court
records forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
PJ
