Karnataka High Court
Smt.Mayamma vs Smt.T.Lalitha on 3 September, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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RFA No. 1825 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 1825 OF 2014 (PAR)
BETWEEN:
1. SMT MAYAMMA,
W/O LATE J C THIMMARAYAPPA
AGED ABOUT 80 YEARS
R/AT NO.62, OLD MADRAS ROAD
BEHIND HOTEL SHREE UPHAAR
OPP: CAUVERY COMPLEX
ULSOOR, BANGALORE-560008,
APPELLANT NO.1 DIED
APPELLANT NO.2 AND
RESPONDENT NOS.2 TO 4 ARE THE
LR'S OF APPELLANT NO.1.
(AMENDMENT CARRIED OUT AS
PER ORDER DATED: 23.07.2024)
Digitally
signed by
BHARATHI S 2. SRI T GIRIRAJ,
Location: S/O LATE J C THIMMARAYAPPA,
HIGH COURT
OF AGED ABOUT 58 YEARS,
KARNATAKA R/AT NO.6, 3RD MAIN,
NEXT TO MANRATH
ENTERPRISES (HP GAS)
DOMLUR 2ND STAGE,
BANGALORE-560071.
3. SRI T JAGADISH,
S/O LATE J C THIMMARAYAPPA,
AGED ABOUT 50 YEARS,
R/A NO.3415, 2ND CROSS,
10TH 'A' MAIN, OPP. INDIRANAGAR,
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RFA No. 1825 of 2014
WATER TANK,
BANGALORE-560038.
...APPELLANTS
(BY SRI D.R RAVISHANKAR, SR. ADVOCATE FOR
SRI RAMESH H.E., ADVOCATE)
AND:
1. SMT.T.LALITHA,
D/O LATE J C THIMMARAYAPPA,
& W/O SRI VISWANATH,
AGED ABOUT 56 YEARS,
R/A 568-MIG 707 SFC,
4TH CROSS, 4TH PHASE,
YELAHANKA NEW TOWN,
BANGALORE-560054.
2. KUM. T. NEERAJAKSHI,
D/O LATE J C THIMMARAYAPPA,
AGED ABOUT 60 YEARS,
R/A #62, OLD MADRAS ROAD,
BEHIND HOTEL SHREE UPHAAR,
OPP: CAUVERY COMPLEX, ULSOOR,
BANGALORE-560008.
3. SRI T SOMASHEKAR,
D/O LATE J C THIMMARAYAPPA,
C/O KODANDARAMA REDDY,
AGED ABOUT 63 YEARS,
R/AT. NO.815, 10TH CROSS
INDIRANAGAR, 2ND STAGE,
BENGALURU -560038.
4. SRI T VENUGOPALA,
S/O LATE J C THIMMARAYAPPA,
AGED ABOUT 48 YEARS,
R/AT. #62, OLD MADRAS ROAD,
BEHIND HOTEL SHREE UPHAAR,
OPP: CAUVERY COMPLEX,
ULSOOR, BENGALURU-560008.
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RFA No. 1825 of 2014
5. SRI R NARAYANAPPA,
S/O T RANGAPPA,
AGED ABOUT 48 YEARS,
R/AT MAHIMA NILAYA,
CHIKKABIDARAKALLU,
NAGASANDRA POST,
BANGALORE-560073.
6. SRI DEVARAJ,
S/O LATE CHANNAPPA,
AGED ABOUT 51 YEARS,
R/A PLEGAMMA TEMPLE ROAD,
SRIKATAPURA (ANCHEPALYA),
NAGASANDRA POST,
BANGALORE-560073.
...RESPONDENTS
(BY SRI NISHCHAL DEV, ADVOCATE FOR R3 & R4,
SRI B. RAVINDRA PRASAD, ADV. FOR R6,
R1 AND R5 SERVED,
R2 - NOTICE HELD SUFFICIENT V/O/DT: 06.08.2024)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 28.11.2013
PASSED IN OS.NO.423/2009 (OLD OS NO.849/06) ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NELAMANGALA,
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT)
1. Defendant Nos.1, 3 and 4 in O.S.No.423/2009
on the file of the Senior Civil Judge and JMFC,
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Nelamangala are in appeal under Section 96 of Code of
Civil Procedure questioning the judgment and decree
dated 28.11.2013, by which the suit of plaintiffs i.e.,
respondent Nos.1 and 2 herein is decreed holding that the
plaintiffs are entitled for 1/7th share each in the suit
schedule properties by metes and bounds. It is also
declared that the sale deed dated 21.03.2005 executed by
defendant Nos.1 to 5 in favour of defendant Nos.6 to 8 are
not binding on the plaintiffs' share and defendant Nos.6 to
8 are also restrained from alienating the suit schedule
properties.
2. Heard Sri D.R. Ravishankar, learned Senior
counsel for Sri Ramesh H.E., learned counsel for the
appellants, Sri Nishchal Dev, learned counsel for
respondent Nos.3 and 4 and Sri B. Ravindra Prasad,
learned counsel for respondent No.6-purchaser. The
respondent Nos.1 and 5 are served and unrepresented.
Notice to respondent No.2 is held sufficient vide order
dated 06.08.2024.
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3. Sri D.R. Ravishankar, learned Senior counsel
appearing for the appellants i.e., defendant Nos.1, 3 and
4, submits that the respondent Nos.1 and 2 i.e., the
plaintiffs, filed suit for partition which was decreed
declaring that the plaintiffs are entitled for 1/7th share in
the suit schedule properties without affording any
opportunity to the appellants to participate in the
proceedings. Learned Senior counsel would submit that
suit was initially filed before the Principal Civil Jude
(Sr.Dn.), Bangalore Rural District, Bangalore and the suit
was numbered as O.S.No.849/2006. The suit was
transferred to Nelamangala on establishment of Court of
the Senior Civil Judge and JMFC at Nelamangala. The suit
was called at Bangalore Rural Court till 17.06.2009. Under
order dated 02.07.2009, the suit stood transferred to
Senior Civil Judge and JMFC, Nelamangala. Upon transfer,
suit was renumbered as O.S.No.423/2009. On transfer,
the suit was called on 20.08.2009. On the said date,
notice was ordered only to defendant Nos.2 and 5 and no
notice was ordered to other defendants.
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4. Learned Senior counsel for the appellants would
submit that the defendant No.3 had filed written
statement. Subsequently under order dated 02.06.2011,
in respect of defendant No.5, service is held sufficient in
terms of Order 5, Rule 9(3) of CPC. Thus, learned Senior
counsel would submit that, as no notice was issued, the
appellants had no opportunity to participate in the
proceedings in the above said suit before the Senior Civil
Judge and JMFC, Nelamangala. Further learned Senior
counsel would point out from the order sheet that on
03.02.2010, defendant No.2 was placed exparte. Further
it is also submitted that, on behalf of plaintiffs, P.Ws.1 and
2 were examined and there was no cross-examination by
the defendants and defendants had no opportunity to lead
their evidence. Thus, learned Senior counsel would pray
that opportunity be provided to the appellants i.e.,
defendant Nos.1, 3 and 4 to participate in the proceedings.
Thus, he prays for setting aside the judgment and decree
and to allow the appeal.
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5. Though the notice is served on respondent
Nos.1 and 2 i.e., plaintiff Nos.1 and 2 before the Trial
Court, they have remained absent. Learned counsels
appearing for respondent Nos.3 and 4 and respondent
No.6 have no objection to allow the appeal and to set
aside the judgment and decree to provide an opportunity
to the appellants to participate in the proceedings.
6. Having heard the learned counsel for the parties
and on perusal of the records in O.S.No.423/2009 on the
file of the Principal Civil Judge (Sr.Dn.) Nelamanga, we are
of the considered opinion that the judgment and decree
needs to be set aside to provide an opportunity to the
appellants as well as other defendants to participate in the
proceedings.
7. Admittedly, the suit is for partition filed by the
plaintiffs i.e., respondent Nos.1 and 2 herein before the
Principal Civil Judge (Sr. Dn.), Bangalore Rural Court,
Bangalore and the same was numbered as
O.S.No.849/2006. On establishment of the Court of the
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Senior Civil Judge and JMFC, Nelamangala, the suit got
transferred under order dated 02.07.2009 and it was
renumbered as O.S.No.423/2009. A careful perusal of the
order sheet indicates that no notice was ordered to other
defendants, except defendant Nos.2 and 5 and service of
notice to respondent Nos.2 and 5 is held sufficient and the
defendant Nos.2 and 5 are placed exparte. The plaintiffs
examined two witnesses as P.Ws.1 and 2. There was no
cross-examination, since no notice was issued to other
defendants to participate in the proceedings. The
defendant Nos.3, 4, 6 to 8 had filed written statement and
contested the suit of the plaintiffs. The
defendants/appellants herein had no opportunity to lead
their evidence as notices were not served on them.
8. The suit schedule properties consist of two
items of immovable properties. The valuable rights of the
parties are involved in the suit. Therefore, as the
appellants and other defendants had no opportunity to
participate in the proceedings, we deem it appropriate to
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set aside the judgment and decree passed in
O.S.No.423/2009 on the file of the Senior Civil Judge and
JMFC at Nelamangala and to remit the matter back to the
Trial Court for fresh consideration.
submits that they had not filed written statement and
seeks leave to file written statement. Since the matter is
being remitted back to the Trial Court for fresh
consideration, defendant Nos.2 and 5 could be provided an
opportunity to file written statement with a condition that
the defendant Nos.2 and 5 shall file written statement on
the date of appearance before the Trial Court.
10. Hence, the following:
ORDER
(i) The judgment and decree dated
28.11.2013 in O.S.No.423/2009 on the
file of Senior Civil Judge and JMFC at
Nelamangala is set aside. The matter is
remitted back to the Trial Court for fresh
consideration.
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(ii) The parties shall appear before the Trial
Court on 14.10.2024.
(iii) The defendant Nos.2 and 5 shall file
written statement on 14.10.2024.
(iv) The Registry shall return the records
forthwith.
(v) The Trial Court shall proceed further in
the suit in accordance with law after
providing an opportunity to the parties to
participate in the proceedings. The Trial
Court shall issue fresh suit summons to
the parties, who are not represented in
this appeal.
(vi) All contentions of the parties are left
open.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
ST
