Karnataka High Court
Sri Gopal Krishna Shetty vs Smt Nagarathana on 24 March, 2025
Author: R Devdas
Bench: R Devdas
-1-
NC: 2025:KHC:12304
CRP No. 433 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO. 433 OF 2019
BETWEEN:
SRI GOPAL KRISHNA SHETTY
AGED ABOUT 73 YEARS
S/O LATE SRINIVASA SHETTY,
R/AT M G ROAD,
CHIKMAGALUR-577 101
...PETITIONER
(BY SRI. VINAYAK KAMATH N., ADVOCATE FOR
SRI. C N KAMATH., ADVOCATE)
AND:
1. SMT NAGARATHANA
W/O SRI D N NAGARAJ,
D/O SRI MALLAPPA,
Digitally signed
by KRISHNAPPA
LAXMI YASHODA 2. SMT C M LEELAVATHI
Location: HIGH D/O SRI MALLAPPA,
COURT OF
KARNATAKA
3. SMT C M SHOBHAMANI
W/O PARAMESH,
D/O SRI MALLAPPA,
4. SMT BHARATHI
D/O SRI MALLAPPA,
5. SMT C M POONIMA
D/O SRI MALLAPPA,
-2-
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CRP No. 433 of 2019
6. SRI MALLAPPA
S/O SRI CHANNABASSAPPA,
7. SRI NANDEESHA C.M.
AGED 45 YEARS
S/O SRI MALLAPPA,
ALL ARE R/AT SHETTY STREET,
CHIKMAGALUR-577 101
...RESPONDENTS
(BY SRI.N.R.RAVIKUMAR & SRI. GANESH K.S.,
ADVOCATES FOR R1 TO R5
V/O/D. 17.01.2020, NOTICE TO R6 & R7 IS D/W)
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDER DATED 02.01.2018 PASSED ON IA NO. 1 IN
C.MISC.NO.3/2017 ON THE FILE OF THE PRL.SENIOR CIVIL
JUDGE AND CJM., CHIKKAMAGALURU DISMISSING THE IA
NO.1 FILED UNDER SEC.5 OF LIMITATION ACT AND
CONSEQUENTLY, THE MAIN PETITION AND ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
The petitioner is aggrieved of the dismissal of the
Civil Miscellaneous Petition filed by the petitioner who had
sought for setting aside the judgment and decree passed
in O.S.No.141/2003 on the ground that the petitioner was
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placed exparte and the plaintiffs have taken advantage of
the fact that the petitioner herein was placed exparte in
the suit.
2. Learned Counsel for the petitioner submits that
the petitioner purchased the suit schedule property at the
hands of respondents No.6 and 7 herein. Originally the
property belonged to Sri Channabasappa and the property
devolved on Smt.Siddamma. Smt.Siddamma had two
daughters by name Smt.Channamma and Smt.Mallamma.
Smt.Siddamma also had a brother by name Sri Ketturiah.
Smt.Siddamma and her brother Ketturiah died more than
five decades ago. Amongst the two daughters of
Smt.Siddamma, Smt.Channamma had one son by name
Sri Mallappa and the other daughter Smt.Mallamma died
issueless. Therefore, Sri Mallappa became the absolute
owner of the suit schedule property. Sri Mallappa sold the
property in favour of the petitioner under registered sale
deed dated 03.06.1983.
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3. One of the sons of Sri Mallappa, Sri Nandeesh, had
also joined in execution of the sale deed represented by
the natural guardian father. However, since Sri Mallappa
did not handover possession to the petitioner, the
petitioner filed O.S.No.358/1989 before the Addl. Munsiff
and JMFC, Chikmagalur, for declaration and possession. A
judgment and decree was passed in favour of the
petitioner on 19.09.1991. Respondents No.6 and 7 filed a
Regular Appeal in R.A.No.13/1992. The Regular Appeal
was dismissed on 10.08.2000. The plaintiffs filed RSA
No.664/2000. In the judgment dated 25.06.2001 in RSA
No.664/2000, this Court held that it did not find any
question of law to consider the second appeal and
therefore, the appeal was rejected. However, since this
Court found that the appellants and their family members
are residing in the suit schedule premises, nine months
time was granted to the appellants to vacate the premises,
subject to the condition that the appellants should file an
Affidavit of undertaking to voluntarily vacate the premises.
A decree was accordingly drawn on 25.06.2001.
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4. Learned Counsel for the petitioner submits that
despite the undertaking given by this Court and the
directions issued by this Court in the Regular Second
Appeal, when respondents did not vacate the suit schedule
premises, the petitioner was constrained to file an
execution case. During the course of the execution case,
another suit was filed in O.S.No.267/2001 at the hands of
the legal heirs of Smt.Mallamma who was the sister of Sri
Mallappa. The suit was decreed and the petitioner herein
filed a Regular Appeal in R.A.No.61/2013. The Regular
Appeal was decided against the petitioner herein.
Thereafter, the petitioner filed RSA No.702/2016 and the
said matter is still pending consideration before this Court.
In the meanwhile, respondents No.1 to 5 filed
O.S.No.141/2003 seeking partition and separate
possession and while seeking a declaration that the sale
deed executed by Sri Mallappa was not binding on the
plaintiffs. The petitioner herein was placed exparte and the
suit was decreed. The petitioner herein filed the Civil
Miscellaneous petition in C.Misc.No.3/2017. Evidence was
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recorded and the respondents herein produced a copy of
the judgment and decree passed in O.S.No.196/2008 to
show that the petitioner was aware of the judgment and
decree passed in O.S.No.141/2003 and he himself had
produced a copy of the judgment and decree during the
course of the proceedings in O.S.No.196/2008 which was
disposed of during the year 2011.
5. The learned Prl. Senior Civil Judge & CJM,
Chikmagalur, accepted the said contention made on behalf
of respondents No.1 to 4 herein that the petitioner had
knowledge of the judgment and decree prior to 2011, but
the Miscellaneous Petition was filed only in the year 2017
and therefore, the enormous delay of more than 5 years
could not be condoned. Accordingly the Civil
Miscellaneous Petition was dismissed.
6. Learned Counsel for the petitioner submits that
although the petitioner succeeded in the suit filed by him
and an undertaking was given by respondents No.5 and 6
herein before this Court in the Regular Second Appeal that
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they would vacate and handover vacant possession of the
suit schedule property to the petitioner herein within nine
months from the date of the judgment and decree,
nevertheless respondents have conspired to file suit after
suit against the petitioner and the petitioner is not able to
enjoy the fruits of the sale deed by virtue of which the
petitioner purchased the property for valuable sale
consideration. At any rate, it is submitted that costs may
be imposed on the petitioner and the matter should be
permitted to be contested on merits.
7. Learned Counsel for the respondents vehemently
contends submits that although the petitioner was aware
of the suit being filed at the hands of respondents No.1 to
4 herein, nevertheless the petitioner ignored the notices
issued by the Court and therefore the learned Judge has
rightly held that delay of more than five years in filing the
Civil Miscellaneous Petition cannot be condoned.
8. Having heard the learned Counsels and on
perusing the petition papers, this Court finds that the
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respondents being family members have suffered a
judgment and decree and respondent No.5 being the karta
of the family has given an undertaking before this Court to
vacate and handover vacant possession of the suit
schedule property within a period of nine months.
Nevertheless two suits are filed back to back to deny the
fruits of the judgment and decree obtained by the
petitioner. The respondents have continued to be in
possession of the suit schedule property for more than 14
years after the undertaking was given by them before this
Court on 25.06.2001. Having regard to these undisputed
facts, this Court is of the considered opinion that the
Miscellaneous Petition should be allowed by imposing costs
on the petitioner. The matter should be contested on
merits.
9. Accordingly, the Civil Revision Petition is allowed.
The impugned order dated 02.01.2018 in
C.Misc.No.3/2017 is hereby quashed and set aside.
Consequently, the Misc. Petition filed by the petitioner
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herein is allowed while imposing cost of Rs.10,000/- on
the petitioner payable to the respondents. The suit in
O.S.No.141/2003 on the file of the learned Civil Judge
(Sr.Dn.) & CJM, Chikmagalur is restored to its original file
while recalling the judgment and decree passed in the said
suit. Parties to appear before the learned Civil Judge
(Sr.Dn.) & CJM, Chikmagalur, in O.S.No.141/2003 on 21st
April 2025 without waiting for further notice. Needless to
observe that the petitioner who is the defendant in the suit
shall be permitted to file necessary application along with
the written statement and the same shall be taken on
record.
Ordered accordingly.
Any observation made in this order shall not
prejudice the case of any party before the Trial Court.
Sd/-
(R DEVDAS)
JUDGE
JT/-
CT: JL
