Karnataka High Court
Sri Vijaykumar S/O. Guruling Bhandari vs Sri Maruti S/O. Guruling Bhandari on 26 February, 2024
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RFA No. 100425 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO.100425 OF 2023 (PAR/POS)
BETWEEN:
1. SRI VIJAYKUMAR
S/O. GURULING BHANDARI,
AGE: 52 YEARS,
OCC: COOLIE,
R/O: KUMBAR GALLI,
AMBEDKAR NAGAR,
HUKKERI,
TAL: HUKKERI,
DIST: BELAGAVI - 591 309.
2. SMT. VANDANA
W/O. VIJAYKUMAR BHANDARI,
AGE: 42 YEARS,
OCC: COOLIE,
Digitally
signed by
MANJANNA
R/O. KUMBAR GALLI,
MANJANNA E
E Date:
2024.03.01
15:05:03
AMBEDKAR NAGAR,
+0530
HUKKERI,
TAL: HUKKERI,
DIST: BELAGAVI - 591 309.
...APPELLANTS
(BY SRI RAJENDRA R. PATIL, ADVOCATE)
AND:
1. SRI. MARUTI
S/O. GURULING BHANDARI,
AGE: 53 YEARS,
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NC: 2024:KHC-D:4564
RFA No. 100425 of 2023
OCC: COOLIE,
R/O: KUMBAR GALLI,
AMBEDKAR NAGAR,
HUKKERI,
TAL: HUKKERI,
DIST: BELAGAVI - 591 309.
2. SRI MAHADEV
S/O. GURULING BHANDARI,
AGE: 54 YEARS,
OCC: COOLIE,
R/O: SAHARA NAGAR,
CHANDUR ABHAR PETH,
INCHALKARANJI, POST: RUHI,
TAL: HATAKANAGALA,
DIST: KOLHAPUR - 416 001,
STATE MAHARASHTRA.
3. SMT. TAYAWWA @ LAXMIBAI
W/O. MAHADEV NAROLKAR,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O: VANTAMURI COLONY,
NEAR SAI MANDIR,
BELAGAVI - 590 001
...RESPONDENTS
(BY SRI SUNANDA P. PATIL, ADVOCATE FOR R1;
R2 AND R3 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 CPC., 1908, AGAINST
THE JUDGMENT AND DECREE DATED 05.09.2022 PASSED IN
O.S.NO.25/2021 ON THE FILE OF SENIOR CIVIL JUDGE, HUKKERI
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING :
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RFA No. 100425 of 2023
JUDGMENT
1. Defendant Nos.2 and 4 in O.S.No.25/2021 on
the file of the Senior Civil Judge, Hukkeri, (hereinafter
referred to as "the Trial Court" for short) are impugning
the judgment and decree dated 05.09.2022 decreeing the
suit and allotting 1/4th share in favour of the plaintiff in
respect of 'A' scheduled property.
2. Heard Sri Rajendra R.Patil, learned counsel for
the appellants and Smt.Sunanda P.Patil, learned counsel
appearing for respondent No.1.
3. Learned counsel for the appellants contended
that appellants are arrayed as defendant Nos.2 and 4 in
O.S.No.25/2021 before the Trial Court seeking partition
and separate possession of the scheduled properties.
Defendant Nos.2 and 4 were contesting defendants. Even
though the plaintiff examined himself as PW.1, he could
not be cross-examined by learned counsel representing for
the appellants.
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4. Moreover, there were three more daughters to
Guruling and Parvathi and they are not impleaded as
defendants. In such circumstances, the impugned
judgment and decree passed by the Trial Court recording
that there was no cross-examination of PW.1 and when
defendants have not led any evidence in support of their
defence, the impugned judgment is to be set aside and
matter is to be remanded back to the Trial Court for
affording an opportunity to cross-examine PW.1 and to
examine defendant Nos.2 and 4 in support of their
defence. Accordingly prays for allowing the appeal and
remanding the matter to the Trial Court for a limited
purpose of cross-examining PW.1 and to examine
defendant Nos.2 and 4 in support of their defence.
5. Per contra, learned counsel for respondent
No.1-plaintiff opposing the appeal submitted that the
plaintiff filed the suit for partition and separate possession.
The appellants as defendant Nos.2 and 4 have filed their
written statement taking specific defence. The relationship
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between the parties is admitted in the written statement.
They have never raised any contention that, the suit was
bad either for non-joinder of necessary parties or for mis-
joinder parties. It is for the first time in this appeal such a
contention was raised.
6. Learned counsel placed reliance on Order I Rule
13 of CPC regarding objections as to non-joinder or mis-
joinder to contend that such defence are to be taken at
the earliest plausible opportunity i.e., before settling the
issues and if the same was not taken at the earliest
opportunity, the same is deemed to have been given up.
Therefore at present, the appellants cannot contend that
the suit is bad for non-joinder of necessary parties.
7. Learned counsel further submitted that the suit
was filed in the year 2021 seeking partition and separate
possession. PW.1 was examined on 25.05.2022. Even
after granting sufficient opportunity, the witness was not
cross-examined. Accordingly, the matter was posted for
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defendants' evidence. The appellants who are contesting
the suit were represented by their advocate. Learned
counsel representing the appellants had in fact appeared
before the Trial Court and sought referring the matter for
medication. Accordingly, the matter was even referred to
the mediation. Since the mediation failed, again it was
sent back to the Court. The Trial Court posted the matter
for defendants' evidence. Even then, no evidence was led
by the defendants. Thereafter the Trial Court proceeded to
hear the argument and finally decreed the suit on the
basis of the materials that are placed on record. Therefore,
she submitted that already reasonable opportunities have
already given to the appellants to cross-examine PW.1 and
also to lead their evidence they have not chosen to do so.
Under such circumstances, the contention of the
appellants seeking to remand the matter does not arise,
which will work out hardship to the plaintiff. Accordingly,
prays for dismissal of the appeal.
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8. Learned counsel for respondent No.1 in the
alternate submits that, since the appellants are seeking
remanding the matter for cross-examination of PW.1 and
for leading their evidence before the Trial Court,
exemplary costs may be imposed to be paid to PW.1 in the
interest of justice.
9. Perused the materials on record. The point that
would arise for my consideration is as under:
"The impugned judgment and decree
passed by the Trial Court calls for any
interference by this Court?"
10. My answer to the above point is in the
affirmative for the following:
REASONS
11. The materials on record disclose that
respondent No.1 as plaintiff filed the suit for partition and
separate possession of the schedule properties. Plaintiff
led evidence as PW.1. The order sheet of the Trial Court
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discloses that, PW.1 was first examined on 25.05.2022. It
was posted for cross-examination on 21.06.2022. But the
counsel for the appellants has not cross-examined the
witness. Therefore the cross-examination was taken as nil.
On 11.07.2022, the plaintiff side evidence was closed and
it was posted for defendants' evidence. Instead of leading
the evidence, the counsel representing the defendants
requested the Trial Court to refer the parties to the
mediation. Accordingly matter was referred to mediation
as per order dated 25.07.2022. As per order dated
10.08.2022, the mediation failed and matter was again
taken up by the Trial Court. The Trial Court again posted
the matter for defendants' evidence. However, no
evidence was led by the defendants and hence it was
posted for arguments and finally after hearing the learned
counsel for the plaintiff, the suit of the plaintiff came to be
decreed vide judgment and decree dated 05.09.2022.
12. If these sequence and dates and events are
taken into consideration, the contention of the learned
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counsel for the appellants that no reasonable opportunity
was given either for cross-examination of PW.1 or for
leading the evidence of defendants, cannot be accepted.
But the fact remains that the defendants or their counsel
were grossly negligent in conducting the case. For which,
they cannot blame either the plaintiff or the Trial Court.
But the fact remains that PW.1 was not cross-examined
nor the defendants have led in any evidence in support of
their defence.
13. Learned counsel for the appellants contended
that the suit is bad for non-joinder of necessary parties.
On going through the written statement filed by defendant
Nos.2 and 4 before the Trial Court, no such defence was
raised, as rightly contended by learned counsel appearing
for respondent No.1, a defence regarding non-joinder of
necessary parties should have been raised before settling
the issues. Even after settling the issue and even when the
matter was pending for plaintiff's evidence no such
defence was raised. It is for the first time, such defence
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was raised before this Court. Under such circumstances,
such contention regarding non-joinder of necessary parties
will have to be rejected.
14. In view of the above, I am of the opinion that
the matter may be remanded back to the Trial Court by
setting aside the impugned judgment and decree of the
Trial Court for affording an opportunity to the contesting
defendant Nos.2 and 4 to do the needful subject to
reasonable costs. Hence, I answer the above point in the
affirmative and proceed to pass the following:
ORDER
1) The appeal is allowed with costs.
2) The impugned judgment and decree dated
05.09.2022 passed in O.S.No.25/2021 on the
file of the Senior Civil Judge, Hukkeri is set
aside. As a result the suit O.S.No.25/2021 is
restored.
3) The matter is remanded back to the Trial
Court subject to the appellants paying costs
of Rs.25,000/- to PW.1.
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4) Both the parties are directed to appear before
the Trial Court on 26.03.2024 without waiting
for fresh notice/summons.
5) Plaintiff shall keep PW.1 present on the date
on which the Trial Court fixes for the same.
6) Defendant Nos.2 and 4 are directed to cross-
examine the witness on the very same day
after paying the costs, failing which, they are
not entitle to the benefit of this judgment and
the Trial Court may proceed to dispose of the
suit once again.
7) If defendant Nos.2 and 4 cross-examine PW.1
after paying the costs, proposed to examine
any of the witnesses, they shall keep them
present on the date on which, to be fixed by
the Trial Court, without seeking further
adjournment.
8) The Trial Court is directed to dispose of the
suit in accordance with law at-least within
three months from the date of receipt of copy
of the records.
Registry is directed to send back the Trial Court
Records along with copy of this judgment forthwith.
SD/-
JUDGE
