Karnataka High Court
Itgar Maruti And Ors vs Putalabai And Ors on 10 March, 2025
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RSA No. 200188 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.200188 OF 2024 (INJ)
BETWEEN:
1. ITGAR MARUTI S/O SHETTEPPA,
AGED ABOUT 49 YEARS, OCC: BUSINESS,
R/O SURVEY NO.5, VAKKALGERA ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
2. ITGAR HANAMANTH S/O
AGED ABOUT 44 YEARS, OCC: BUSINESS,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
3. MAHADEVI W/O RAMESH,
AGED ABOUT MAJOR, OCC: COOLIE,
R/O SURVEY NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
Digitally signed by
BASALINGAPPA
SHIVARAJ 4. ASHOK S/O RAMESH,
DHUTTARGAON AGED ABOUT MAJOR, OCC: COOLIE,
Location: HIGH R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
COURT OF
KARNATAKA FILTER BED ROAD, KALABURAGI-585 104.
5. NAGESH S/O RAMESH,
AGED ABOUT MAJOR, OCC: COOLIE,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
6. GEETA D/O RAMESH,
SINCE MINOR U/G OF HER NATURAL MOTHER,
MAHADEVI W/O RAMESH,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
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RSA No. 200188 of 2024
FILTER BED ROAD, KALABURAGI-585 104.
7. LAXMI BAI W/O BHIMA,
AGE: MAJOR, OCC: COOLIE,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
8. USHA D/O BHIMA,
SINCE MINOR U/G NATURAL MOTHER,
LAXMI BAI W/O BHIMA,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
9. SHIVAKUMAR S/O BHIMA,
SINCE MINOR U/G NATURAL MOTHER,
LAXMI BAI W/O BHIMA,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
...APPELLANTS
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
1. SMT. PUTALABAI D/O LATE SHANKARAPPA
W/O SANJU,
AGED ABOUT 44 YEARS, OCC: HOUSEHOLD,
R/O H.NO.9-882/383, SULTANPUR ROAD,
NEAR AMBABAI DEVALAUYA, ASHRAYA COLONY,
KALABURAGI-585 104.
2. SURESH S/O LATE SHANKARAPPA,
AGED ABOUT 50 YEARS, OCC: BUSINESS,
R/O H.NO.9-882/383, SULTANPUR ROAD,
NEAR AMBABAI DEVALAUYA, ASHRAYA COLONY,
KALABURAGI-585 104.
3. MARUTI S/O BHIMSHA DHOTRE,
AGED ABOUT 46 YEARS, OCC: BUSINESS,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
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RSA No. 200188 of 2024
4. KRISHNA S/O BHIMSHA DHOTRE,
AGED ABOUT 46 YEARS, OCC: BUSINESS,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
5. LACHCHAPPA S/O BALAYYA,
AGED ABOUT 43 YEARS, OCC: BUSINESS,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
6. RUKMINI W/O TIKALE,
AGED ABOUT 42 YEARS, OCC: HOUSEHOLD,
R/O SY. NO.5, VAKKALGERA, ASIF GUNJ,
FILTER BED ROAD, KALABURAGI-585 104.
...RESPONDENTS
(BY SRI RAMACHANDRA K. FOR SRI GURUBASAVA NAYAK,
ADVS. FOR R1 AND R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE FIRST APPELLATE
COURT IN R.A. NO.83/2023 DATED 20.02.2024 PASSED BY
THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AT
KALABURAGI, THEREBY SET ASIDE THE JUDGMENT AND
DECREE OF THE TRIAL COURT IN O.S. NO.163/2020 DATED
09.03.2023 PASSED BY THE COURT OF PRINCIPAL CIVIL
JUDGE AND JMFC AT KALABURAGI AND CONSEQUENTLY TO
DISMISS THE SUIT OF THE RESPONDENTS/PLAINTIFFS IN
ENTIRETY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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RSA No. 200188 of 2024
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel for the appellants and the
learned counsel for the respondents.
2. This appeal is against the concurrent finding in a
suit for injunction and mandatory injunction. The suit is
decreed holding that the plaintiffs are in possession of the
property pursuant to unregistered agreement for sale dated
15.05.1988. The plaintiffs claim that the possession is
transferred pursuant to the agreement for sale and they are in
possession of the suit property. The defendants remained ex
parte before the trial court. As such, there was no contest by
the defendants. Based on the evidence led by the plaintiffs, the
trial court found that the plaintiffs are in possession of the suit
property and passed a decree for injunction and directed to the
defendants to remove the unauthorized and illegal laying of
stones in the suit property within two months from the date of
passing of the decree.
3. The defendants filed appeal before the first
appellate court and took a stand that notice is not served on
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them and filed an application to condone the delay in filing the
appeal and also filed an application under Order 41 Rule 27 of
CPC seeking production of additional documents to substantiate
their claim.
4. The first appellate court dismissed the application to
condone the delay of 206 days in filing the appeal and also
dismissed the application seeking production of additional
document on the premise that the defendants have not filed
written statement seeking leave of the court and thereby
refused to look into the additional evidence and consequently
the concurred finding of the trial court.
5. Learned counsel for the defendants/appellants
would submit that the suit summons were not properly served
on the defendants. The defendants after coming to know about
the ex parte decree filed an appeal along with an application to
condone the delay of 206 days in filing the appeal. In addition,
the defendants also filed an application seeking to produce
documents to show that the properties have been acquired by
the competent authority and the sites have been allotted to
some of third parties.
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6. It is the contention of the learned counsel for the
appellants that the application for condonation of delay could
not have been dismissed as there was 206 days delay on
account of the fact that the suit summons were not properly
served.
7. It is further submitted that the documents could not
have been rejected on the premise that the defendants have
not filed written statement before the first appellate court.
Thus, he urged that matter be remitted back to the trial court
for consideration afresh.
8. Learned counsel for the respondents/plaintiffs on
the other hand, would contend that despite service of suit
summons to the appellants/defendants they did not appear
before the trial court and all the defendants refused to receive
the suit summons sent by the trial court and thereafter did not
contest the matter. Even before the first appellate court, the
defendants did not file written statement though they sought
the leave of the court to produce additional documents. The
first appellate court rightly rejected the application seeking
production of additional documents on the premise that the
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written statement is not filed. It is further submitted by the
learned counsel for the respondents that delay of 206 days is
not properly explained in filing the appeal. Hence, he would
submit that no substantial question of law would arise in this
case and prayed to dismiss the appeal.
9. This court has considered the contentions raised at
the Bar and perused the records.
10. The following substantial question of law would
arise for consideration:
i) Whether the first appellate court is justified in
dismissing the application for condonation of delay
of 206 days in filing the appeal?
ii) Whether the first appellate court is justified in
rejecting the application for production of additional
documents on the premise that the written
statement is not filed?
11. As far as the application for condonation of delay of
206 days being dismissed, it is to be noticed that the
application for condonation of delay has to be construed
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liberally. The case on hand pertains to immovable property.
Along with the appeal, the appellants have also filed an
application for production of documents which prima facie
indicate that the lands in dispute have been acquired by the
competent authority. Under these circumstances, the
appellants have made out a case for hearing the matter on
merits. This being the position, the first appellate court could
not have rejected the application to condone the delay of 206
days especially in a situation when the decree is ex parte and
appellants contend that notice was not properly served.
Nevertheless the first appellant court has considered the appeal
on merits. Hence, for these reasons, this court is of the view
that the application for condonation of delay has to be allowed.
12. Sofar as the finding of the first appellate court that
written statement is not filed as such there is no need to
consider the additional documents, the said finding appears to
be logical to an extent, but what is required to be noticed is
that the documents sought to be produced are the relevant
public documents. Hence, under these circumstances, the
appellants have made out a case to consider the case on merits
by considering those documents.
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13. This court is of the view that application could not
have been rejected considering the fact that the trial court has
passed an ex parte decree where the complete facts are not
brought to the notice of the court. Hence, the finding of the
first appellant court that the application could not be considered
for want of written statement by the appellants has to be set
aside.
14. Noticing the fact that there is no written statement,
permitting the appellants to file written statement, by imposing
the cost, the matter can be remitted to the trial court directing
the appellants/defendants to file written statement within a
specific period. Under these circumstances, this court is of the
view that in the interest of justice, the order rejecting the
application for production of additional document has to be set
aside.
15. As already noticed, the dispute is relating to an
immovable property. The appellants before this court and also
one of the appellants before the first appellate court raised the
contention that the property in question is acquired and the
plaintiffs have no right over the property. It is further noticed
that the plaintiffs who claiming to be in possession based on
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agreement for sale and admittedly suit for specific performance
is not filed. Under these circumstances, the impugned
judgment and decree have to be set aside and the matter has
to be remitted to the trial court for consideration afresh.
16. As rightly contended by the learned counsel for the
respondents, the appellants' have to be put on terms on
account of appellants default, the respondents are put to
inconvenience and had to face two rounds of litigation before
the first appellate court and before this court. It is also noticed
there is delay on the part of the defendants to file written
statement. Under these circumstances, the appellants shall
pay the cost of Rs.30,000/- to the respondents which condition
will be the condition precedent for filing written statement
before the trial court and on such payment cost of Rs.30,000/-,
the appellants are permitted to contest the matter by filing
written statement.
17. Hence, the following:
ORDER
i) The appeal is allowed.
ii) The impugned judgment and decree dated
20.02.2024 passed by the III Addl. Senior Civil
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Judge, Kalaburagi in RA No.83/2023 and also the
judgment and decree dated 09.03.2023 in
O.S.No.163/2020 passed by the Principal Civil
Judge, Kalaburagi are set aside and the matter is
remitted to the trial court for fresh consideration.
iii) The appellants shall pay cost of Rs.30,000/- to the
respondents within (03) three days from the date of
appearance and also file written statement within
(03) three days from the date of appearance, failing
which the right to file written statement stands
forfeited.
iv) The parties shall appear before the trial court on
15.04.2025 without any further notice.
v) It is made clear that this court has expressed
nothing on the merits of the case.
vi) All contentions are kept open.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BL
CT: AK
