Karnataka High Court

Rajeev Ramesh Padwalkar vs Smt. Rekha Ramesh Padwalkar on 5 November, 2024

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                                                      MSA No. 100137 of 2024




                                IN THE HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH

                            DATED THIS THE 5TH DAY OF NOVEMBER, 2024

                                             BEFORE

                             THE HON'BLE MR. JUSTICE C.M. POONACHA

                      MISCELLANEOUS SECOND APPEAL NO.100137 OF 2024

                   BETWEEN:

                   SRI RAJEEV RAMESH PADWALKAR,
                   AGED ABOUT 45 YEARS,
                   OCC: PRIVATE SERVICE,
                   R/O: BINAGA, KARWAR.
                                                                     ...APPELLANT
                   (BY SRI LINGESH V. KATTEMANE, ADVOCATE FOR
                   SRI S. G. KADADAKATTI, ADVOCATE)

                   AND:

                   SMT. REKHA RAMESH PADWALKAR,
                   SINCE DECEASED BY HER LRS.,

                   SRI ROHIT RAMESH PADWALKAR,
                   AGED ABOUT 43 YEARS,
                   OCC: BUSINESS, R/O: BINAGA, KARWAR.
                                                                 ...RESPONDENT
Digitally signed
by SAROJA
HANGARAKI
Location: High           THIS MISCELLANEOUS SECOND APPEAL IS FILED U/O.43 RULE
Court of
Karnataka          1(U) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO, CALL
                   FOR RECORDS. SET ASIDE THE JUDGMENT AND DECREE DATED
                   12.09.2024 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND
                   CJM COURT KARWAR AT UTTARA KANNADA IN R.A NO. 11/2023 BY
                   SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.04.2023
                   PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC-II IN KARWAR IN
                   O.S NO. 222/2016 BY ALLOWING THE APPEAL IN THE ENDS OF
                   JUSTICE AND EQUITY AND ETC.,

                       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                   ORDER WAS MADE THEREIN AS UNDER:

                   CORAM:    THE HON'BLE MR. JUSTICE C.M. POONACHA
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                                                              NC: 2024:KHC-D:16172
                                                           MSA No. 100137 of 2024




                                   ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present appeal is filed under Order XLIII Rule

1(4) of the Code of Civil Procedure, 19081 challenging the

order dated 12.09.2024 passed in R.A.No.11/2023 by the

Principal Senior Civil Judge and CJM, Karwar at Uttara

Kannada2.

2. The relevant facts in nutshell leading to

the present appeal are that the appellant instituted a suit

in O.S.No.222/2016 in the Court of the Principal Civil

Judge and JMFC-II, Karwar3, whereunder he arrayed his

mother as the defendant. The said suit was filed for

declaration and injunction. The defendant entered

appearance in the said suit and contested the same. The

Trial Court by its judgment and decree dated 21.04.2023

decreed the suit and ordered as follows:

"The suit is hereby decreed with costs.

Hereinafter referred to as "CPC"

Hereinafter referred to as "the First Appellate Court"

Hereinafter referred to as "the Trial Court"

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The Gift deed No.2016/16-17 registered before the Sub-Registrar, Karwar is not binding on the plaintiff.

Further the defendant, her men, agents or anybody claiming under her are hereby restrained by an order of Permanent Injunction from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property."

3. Being aggrieved, the respondent herein as

the legal representative of deceased original defendant

preferred R.A.No.11/2023. The appellant herein, who was

arrayed as respondent in the said appeal, entered

appearance before the First Appellate Court and contested

the same. The First Appellate Court by its judgment dated

12.09.2024 allowed the appeal and ordered as follows:

The appeal filed by the appellant/defendant under the provisions of under Section 96 R/w Order 41 Rule 1 of C.P.C., is hereby allowed and the judgment and decree passed by the Trial Court learned Prl. Civil Judge and J.M.F.C. Karwar, on 21-04-2023 in O.S.No.222/2016 is hereby set aside and the matter is remanded to the

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Trail Court to consider the matter afresh after providing an opportunity to both the parties to lead oral and documentary evidence in accordance with law and then to decide the case on merits.

Both the parties are directed to appear before the Trial Court on 30-10-2024 through their respective counsels without expecting any suit summons or notice from the Trial Court.

Costs are made easy.

Office to send the TCR to the Trial Court along with copy of this judgment forthwith.

Draw decree accordingly.

4. Being aggrieved, the present appeal is

filed.

5. Learned counsels Sri. S. G. Kadadakatti

and Sri. Lingesh Kattemani appearing for the appellant,

assailing the order of the First Appellate Court vehemently

contends that the respondent immediately consequent to

filing of R.A.No.11/2023 has filed O.S.No.34/2023 for

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declaration and partition. That, having regard to the

subsequent suit for declaration filed, the respondent who

is the appellant before the First Appellate Court, ought not

to be permitted to pursue parallel remedies and hence, the

impugned order being erroneous is liable to be set aside.

6. It is forthcoming that the First Appellate

Court while considering the appeal filed by the respondent

has noticed that the original defendant was bedridden due

to various health ailments and was in coma for more than

six months and expired on 26.06.2023. It was further

noticed that before the Trial Court, PW1 was partly cross-

examined and despite the matter having been posted for

further cross-examination of PW1, since there was no

cross-examination, the cross-examination of PW1 was

taken as nil and the matter was posted for defendant

evidence. It was further noticed by the First Appellate

Court that before the Trial Court the counsel for the

defendant appeared on 23.02.2023 and made a

submission that the defendant was discharged from

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hospital and evidence will be led on the next date of

hearing but subsequently, the counsel for the defendant

filed a retirement memo along with notice sent to the

defendant, which was returned with an endorsement as

'door locked'. Subsequently, the matter was posted for

judgment. The First Appellate Court has noticed that

consequent to death of the original defendant, the

appellant before the First Appellate Court preferred an

appeal as a legal heir of deceased defendant, who is

interested in the result of the decree. Further, the First

Appellate Court, after noticing the factual matrix, has

recorded the following findings:

"23. The judgment and decree of the Trial Court discloses that the case has been not decided on merits. Though the appellants / defendant might have been in possession of documents to establish his case, there is no opportunity given to the defendant to adduce oral and documentary evidence. As far as the aspects of income of the plaintiff / defendant and the business of petrol pump and how it is run and how the

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profits are shared will have to be decided in the course of trial. The impugned judgment is passed in favour of the plaintiff since the oral and documentary evidence of PW-1 had remained unchallenged and uncontested. The impugned judgment clearly has mentioned that the defendant has failed to complete the cross examination of plaintiff and she has failed to lead evidence on her behalf. It is also observed that when the defendant has not chosen to participate in the case and to contest the suit then the case of the plaintiff will have to be excepted and hence these observations made it clear that the case is not decided on merits.

24. On perusal of the judgment of the Trial Court, the Trial Court has not decided the suit on merits. Hence there is necessity for re-appreciation of evidence after recording the evidence of witnesses intended by the appellant to be examined in this case. The Trial Court has not decided all the issues on merits. In the light of the fact that the Appellant intends to come on record and contest the suit it is just and proper to remand the case to the Trial Court and to give an opportunity to both

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parties to lead oral and documentary evidence on their behalf and to reappreciate the oral and documentary evidence and to decide the suit on merits in all aspects.