Karnataka High Court

Sri.L. Srinivasa Rao vs Smt. Asha Singh on 5 March, 2025

Author: S.R. Krishna Kumar

Bench: S.R. Krishna Kumar

                                              -1-
                                                          NC: 2025:KHC:9393
                                                       RFA NO.2211 OF 2019




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 05TH DAY OF MARCH, 2025

                                           BEFORE
                        THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                        REGULAR FIRST APPEAL NO.2211 OF 2019 (DEC-)

                BETWEEN:

                SRI. L. SRINIVASA RAO
                S/O SRI. L.V. SATHYANARAYANA
                AGED ABOUT 52 YEARS,
                R/AT NO.24/4, TERRACE FLOOR,
                HAUDIN ROAD CROSS,
                ULSOOR,
                BENGALURU - 560 042.
                                                               ...APPELLANT
                (BY SRI. B.S. RADHANANDAN, ADVOCATE)

                AND:

                SMT. ASHA SINGH
                W/O SRI. P.R. AMARNATH SINGH
                AGED ABOUT 61 YEARS,
                R/AT NO.37, II FLOOR, 7TH CROSS,
Digitally       SOMESHWARAPURA,
signed by       CAMBRIDGE LAYOUT,
LEELAVATHI
SR              ULSOOR, BENGALURU - 560 008.
Location:
High Court of                                                ...RESPONDENT
Karnataka
                (VIDE ORDER DATED: 03.07.2024, SERVICE OF NOTICE
                TO RESPONDENT IS HELD SUFFICIENT)

                     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
                OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
                AND DECREE DATED 11TH SEPTEMBER, 2019 PASSED IN
                ORIGINAL SUIT NO.25390 OF 2019 ON THE FILE OF THE LXXII
                ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
                (CCH-73), DISMISSING THE SUIT FILED FOR DECLARATION.

                    THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
                JUDGMENT WAS DELIVERED THEREIN AS UNDER:
                                    -2-
                                                  NC: 2025:KHC:9393
                                              RFA NO.2211 OF 2019




CORAM:       HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR


                           ORAL JUDGMENT

This appeal is preferred by the unsuccessful plaintiff in

O.S.No.25390/2019 pending on the file of LXXII Addl. City Civil and

Sessions Judge, Bengaluru, challenging the judgment and decree

dated 11.09.2019, whereby the said suit filed by the

appellant/plaintiff for declaration that the plaintiff was the exclusive

owner entitled to use the suit schedule 'B' property exclusively for

himself and other reliefs was dismissed by the trial court.

2. Heard learned counsel for the appellant and perused the

material on record. The respondent having been served with the

notice of the appeal has chosen to remain absent and

unrepresented and not contested the appeal.

3. In this context, it is relevant to state that the respondent

who was the defendant before the Trial Court remained ex-parte in

the suit also and did not contest the suit.

4. A perusal of the material on record will indicate that the

appellant/plaintiff instituted the aforesaid suit for declaration that

the plaintiff was exclusive owner entitled to use the suit schedule

NC: 2025:KHC:9393 RFA NO.2211 OF 2019

'B' property and for other reliefs. As per the plaint averments, the

appellant/plaintiff purchased the residential apartment of ground

floor as per registered Sale Deed dated 18.01.2017 and 3rd Floor

and terrace rights as per registered Sale Deed dated 25.05.2017

executed by the respondent/defendant in Sy.No.24/4 situated at

Haudin Road, Ulsoor, Bengaluru. It was contended that though the

respondent/defendant had actually conveyed/sold the residential

apartments together with car parking area which is described as

schedule 'B' property as indicated in the Sale Agreement dated

07.07.2010 (Exhibit-P4), due to oversight and inadvertence, the

said car parking area described as schedule 'B' property was not

mentioned in the aforesaid two registered Sale Deeds executed by

the respondent-defendant in favour of the appellant/plaintiff. It is

specifically contended that the appellant/plaintiff has actually

purchased the two residential apartments together with the car

parking area and since, the same was not mentioned in the Sale

Deeds due to oversight and inadvertence and as such, the

appellant/plaintiff instituted the aforesaid suit for declaration of his

title, ownership and possession over the car parking area by

describing the same as schedule 'B' property in the plaint.

NC: 2025:KHC:9393 RFA NO.2211 OF 2019

6. The appellant/plaintiff examined himself as PW-1 and got

marked 9 documents as Exs.P1 to P9. The respondent/defendant

having remained ex-parte as stated above, neither cross-examined

PW-1 nor adduced any oral or documentary evidence.

7. The Trial Court, after hearing the appellant/plaintiff had

framed the following three points for its consideration:

"Point No.1: Does the Plaintiff proves that, he is the owner in possession of the suit schedule B property?

Point No.2: Does the Plaintiff is entitled for the relief of declaration?

Point No.3: What Order or Decree?"

8. After hearing the appellant, the trial court proceeded to

dismiss the suit of the appellant - plaintiff by passing the impugned

judgment and decree which is assailed in the present appeal.

9. The only point that arises for consideration in the present

appeal is, whether the impugned judgment and decree passed by

the trial court warrants interference by this Court in the present

appeal.

10. A perusal of the findings recorded by the Trial Court in

the impugned judgment and decree will indicate that the sole

NC: 2025:KHC:9393 RFA NO.2211 OF 2019

ground on which the Trial Court dismissed the suit of the plaintiff for

declaration was by coming to the conclusion that there is no

mention about the transfer and sale of the schedule 'B' property

being the car parking area in favour of the appellant/plaintiff.

Further, during the pendency of the present appeal, the

respondent/defendant had purportedly leased out the schedule 'B'

property in favour of one Mr. Zahid Shaik Sab, Aged about 46

years, No.5102, Purvankara Fountain Square, Marathahalli,

Bengaluru-560037. Under these circumstances, the appellant/

plaintiff had filed application I.A.2/2022 under Order I Rule 10 read

with Order XXII Rule 10 CPC seeking impleadment of the aforesaid

Mr. Zahid Shaik Sab as additional respondent/defendant to the

present appeal as well as the suit.

11. So also, the appellant/plaintiff filed an application

I.A.3/2022 under Order VI Rule 17 CPC seeking amendment of the

plaint by incorporating additional pleadings and reliefs. A perusal

of the affidavit filed in support of I.A.No.3/2022 will clearly indicate

that having regard to the detailed reasons and particulars

contained in the affidavit filed in support of IA.No.3/2022, I am of

the considered opinion that the proposed amendment is relevant

NC: 2025:KHC:9393 RFA NO.2211 OF 2019

and necessary for the purpose of adjudication of the issues in

controversy between the parties as enunciated by the Apex Court

in the case of LIFE INSURANCE CORPORATION OF INDIA vs.

SANJEEV BUILDERS PRIVATE LIMITED AND ANOTHER - AIR

2022 SC 4256. Under these circumstances, I.A.No.3/2022

deserves to be allowed.

12. The next point that arises for consideration is the

procedure to be followed for the purpose of disposal of the appeal

upon allowing I.A.3/2022.

13. As stated supra, the proposed amendment was not part

of the plaint at the time of impugned judgment and decree passed

by the trial court. However, in view of allowing application

I.A.3/2022 as stated above, it would be just and necessary to set

aside the impugned judgment and decree and remit the matter

back to the Trial Court for reconsideration afresh and in accordance

with law.

14. Insofar as the application I.A.2/2022 for impleadment of

the proposed additional defendant No.2 - Zahid Shaik Sab is

concerned, in view of allowing of I.A.3/2022 and the matter being

NC: 2025:KHC:9393 RFA NO.2211 OF 2019

remitted back to the trial court for reconsideration afresh in

accordance with law, it would be necessary to transmit I.A.3/2022

to the trial court for consideration and disposal in accordance with

law.

15. In the result, I pass the following:

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned judgment and decree dated 11.09.2019

passed in O.S.No.25390/2019 pending on the file of LXXII

Additional City Civil and Sessions Judge, Bengaluru is hereby set

aside;

(iii) The matter is remitted back to the Trial Court for

reconsideration afresh in accordance with law;

(iv) Application I.A.No.3/2022 filed by the appellant for

amendment of the plaint is hereby allowed and Trial Court is

directed to permit the appellant/plaintiff to carryout amendment to

the plaint as sought for by him in the application IA.3/2022 and

proceed further in accordance with law;

(v) Application I.A.No.2/2022 filed by the appellant for

impleadment of Mr. Zahid Shaik Sab as additional defendant No.2

is hereby transmitted/remitted back to the Trial Court, which shall

NC: 2025:KHC:9393 RFA NO.2211 OF 2019

consider and pass appropriate orders on I.A.No.2/2022 in

accordance with law.

(vi) The appellant shall appear before the Trial Court

without awaiting further notice on 26.03.2025.

(vii) Registry is directed to send back the Trial Court

Records along with applications IA Nos.2/2022 and 3/2022 to the

Trial Court forthwith without any delay.