in the high court of karnataka at bangalore present the hon'ble mr

in the high court of karnataka at bangalore present the hon'ble mr

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 19th day of September 2014 PRESENT THE HON’BLE MR. JUSTICE K.L. MANJUNATH AND THE HON’B...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 19th day of September 2014

PRESENT THE HON’BLE MR. JUSTICE K.L. MANJUNATH AND THE HON’BLE MR. JUSTICE A.V. CHANDRASHEKARA Regular First Appeal No.1901/2011 (DEC) connected with Regular First Appeal No.2180/2012 (PAR) In RFA No.1901/2011: BETWEEN 1.

SMT CHANDRALEKHA HEGDE AGED ABOUT 62 YEARS W/O CAPT. PRASANNAKUMAR HEGDE AND DAUGHTER OF LATE SMT. SHEELAVATHI HEGDE & LATE Dr B.K. HEGDE R/AT NO.8, EDEN, BIJAY POST MANGALORE-575 004

2.

SMT JYOTHI HEGDE AGED ABOUT 59 YEARS W/O Dr DEVADAS HEGDE AND DAUGHTER OF LATE SMT SHEELAVATHI HEGDE & LATE Dr B.K. HEGDE R/AT ‘CASTLE’, WAREHOUSE ROAD MANNAGUDDA CROSS MANGALORE-575 003

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3.

SMT ROSHAN SHETTY AGED ABOUT 50 YEARS W/O NARESH SHETTY AND DAUGHTER OF LATE SMT. SHEELAVATHI HEGDE & Dr B.K. HEGDE R/AT NO.803, “RENNAISSANCE” FLAT NO.319, LOKHANDWALA COMPLEX ANDHERI WEST, MUMBAI-400 053

... APPELLANTS

(By Sri A. ANANDA SHETTY & Sri N. RAJASHEKAR, ADVs.,) AND 1.

O C CHANDRAN S/O O PAITHAL AGED ABOUT 68 YEARS CHEVAYOOR VILLAGE, CALICUTT TALUK R/AT “POWRNAMI”, DRIVING SCHOOL ROAD CHEVAYOOR VILLAGE CALICUTT TALUK, KERALA

2.

BAIJU GOPALAN S/O GOKULAM GOPALAN AGED ABOUT 38 YEARS R/AT “LOJISHA”, NO.11, 2ND MAIN ROAD TURSTPURAM, KODAMBAKKAM CHENNAI-600 024

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M/s GOKULAM CHITS & FINANCE COMPANY (P) LTD., NO.66, ARCOT ROAD, KODAMBAKKAM CHENNAI-600 024 BRANCH OFFICE AT NO.25, 1ST FLOOR K.H.ROAD, BANGALORE-27 REPRESENTED BY BAIJU GOPALAN S/O GOKULAM GOPALAN AGED ABOUT 38 YEARS

4.

SMT MALLIKA S HEGDE W/O Dr SUDARSHANA HEGDE AGED ABOUT 64 YEARS R/O VIJAYANAGARA APARTMENTS BUNTS HOSTEL ROAD, MANGALORE-03

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5.

SMT ASHA AJILA W/O LATE YASHAVANTHA AJILA AGED ABOUT 66 YEARS R/AT NO.71, HIG COLONY RMV II STAGE, BANGALORE-560 094

6.

ASHWIN AJILA S/O LATE Y. YASHVANTHA AJILA AGED ABOUT 44 YEARS R/AT NO.71, HIG COLONY RMV II STAGE BANGALORE-560 094

... RESPONDENTS

(BY SRI PRASHANTH G, ADV., FOR R1 SRI AMAR KUMAR T.S. FOR M/S LAWYERS INC FOR R2 & R3 R4, R5 & R6 ARE SERVED) THIS RFA FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.7.2011 PASSED IN O.S.NO.9/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIKMAGALUR, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. In RFA NO.2180 OF 2012: BETWEEN 1.

SMT ASHA AJILA WIFE OF LATE YASHWANTH AJILA AGED ABOUT 66 YEARS RESIDING AT NO.71, HIG COLONY R.M.V. COLONY, R.M.V. 2ND STAGE BANGALORE-560 094

2.

SRI ASHWIN AJILA SON OF LATE YASHWANTH AJILA AGED ABOUT 45 YEARS RESIDING AT NO.71, HIG COLONY R.M.V. COLONY, R.M.V. 2ND STAGE BANGALORE-560 094 (By Sri V S ARBATTI, ADV.,)

... APPELLANTS

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AND 1.

SMT MALLIKA S HEGDE WIFE OF Dr. SUDARSHANA HEGDE AGED ABOUT 60 YEARS RESIDING AT VIJAYANAGARA APARTMENTS BUNTS HOSTEL ROAD MANGALORE-575 003

2.

SMT CHANDRALEKHA HEGDE WIFE OF CAPTIAN PRASANNA KUMAR HEGDE DAUGHTER OF SMT. SHEELAVATHI HEGDE AGED ABOUT 60 YEARS RESIDING AT NO.8, EDEN, BIJAY POST MANGALORE-575 004

3.

SMT ROSHAN SHETTY WIFE OF SRI NARESH SHETTY DAUGHTER OF SHEELAVATHI HEGDE AGED ABOUT 50 YEARS RESIDINGA T NO.09/130, AIR INDIA APARTMENT M.H.B. AREA, J.V.R.D. MUMBAI-400 049

4.

SMT JYOTHI HEGDE WIFE OF Dr. DEVADAS HEGDE DAUGHTER OF SMT. SHEELAVATHI HEGDE AGED ABOUT 60 YEARS RESIDING AT "CASTLE" WARE HOUSE ROAD MANNAGUDDA CROSS MANGALORE-575 003

5.

SRI O C CHANDRAN SON OF PAITHAL AGED ABOUT 69 YEARS RESIDING AT CHEVAYOOR VILLAGE CALICUTTA TALUK RESIDING AT "POWRNAMI" DRIVING SCHOOL ROAD CHEVAYOOR VILLAGE CALICUT TALUK-673 017

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6.

SRI BAIJU GOPALAN SON OF SRI GOKULAM GOPALAN AGED ABOUT 40 YEARS RESIDING AT LOJISHA, NO.11 2ND MAIN ROAD, TRUSTPURAM KADAMBAKKAM CHENNAI-600 024

7.

GOKULAM CHITS & FINANCE COMPANY LIMITED NO.66, ARCOT ROAD, KADAMBAKKAM CHENNAI-600 024 HAVING ITS BRANCH OFFICE AT NO.25 1ST FLOOR, K.H.ROAD BANGALORE-560 027 ... RESPONDENTS

(By Sri M S RAGHAVENDRA PRASAD, ADV., FOR R1 Sri A. ANANDA SHETTY & Sri N. RAJASHEKAR, ADV., FOR R2 TO R4 SRI AMAR KUMAR T.S. FOR M/S LAWYERS INC FOR R5-R7) THIS RFA FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.9.2012 PASSED IN O.S.NO.97/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIKMAGALUR, DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND MESNE PROFITS. THESE RFAs COMING ON FOR ADMISSION, THIS DAY, A.V. CHANDRASHEKARA J., DELIVERED THE FOLLOWING:-

JUDGMENT

RFA 1901/2011 has arisen out of the Judgment and Decree passed by the learned Senior Civil Judge, Chikmagalur in original suit bearing O.S.No.9/2007 on 29.7.2011. The suit filed for the main relief of declaration to the effect that they are the absolute

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owners in possession of the schedule properties, has been dismissed

by

a

considered

Judgment

dated

29.7.2011.

Appellants in this appeal are the plaintiffs in the said suit. Being aggrieved by the said Judgment and Decree, they have filed this appeal under Section 96 of CPC. 2.

After completion of the pleadings, the following

issues came to be framed by the learned Senior Civil Judge, Chikmagalur:1.

Whether the plaintiffs prove that they are the full owners in possession of the suit schedule property?

2.

Whether the plaintiffs prove that sale deed dated 27.9.2006 is not binding on them?

3.

Whether the 1st defendant prove that 1st plaintiff, Late Mrs. Sheelavathi Hegde and another

sister

Mrs.

Mallika

Hegde

have

executed GPA in favour of the 2nd defendant dated 4.9.2004 to deal with the plaint schedule properties?

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4.

Whether the plaintiffs prove that the 2nd defendant has falsely obtained a GPA dated 9.7.2004 to sell the schedule property?

5.

Whether then plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule properties?

6.

Whether the suit is hit under the provisions of law U/o 7 rule 7 of CPC?

7.

Whether

the

plaintiffs

are

entitled

for

are

entitled

for

declaration as sought for? 8.

Whether

the

plaintiffs

permanent injunction as sought for? 9.

What decree or order?

3.

PW.1-Roshan Shetty was examined in chief. He did

not tender himself for cross-examination instead of eschewing his evidence; the learned Judge has chosen to consider his oral evidence as well as the documents marked as Exs.P1 to P7 to dispose of the suit on merits. The main grievance of the appellants herein is that the trial Court could not be proceeded

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with the matter in accordance with law and it should have dismissed the suit for default instead of proceeding on merits. 4.

RFA 2180/2012 has arisen out of a considered

Judgment and Decree passed by the learned Senior Civil Judge, Chikmagalur

in

original

suit

bearing

O.S.No.97/2010

on

12.9.2012. Appellants are the defendants in the said suit. The suit is filed for the relief of partition and separate possession of the properties described in the schedule appended to the suit has been decreed as prayed for. Plaintiff-Smt. Mallika S. Hegde, is held to be entitled for 1/3rd share in the suit schedule properties and a direction is given for rendition of account under Order 20 rule 18 of CPC for holding an enquiry under Order 20 Rule 12 of CPC for ascertaining the mesne profits. This considered Judgment dated 12.9.2012 is called in question by the defendants No.1 and 2 in O.S.No.97/2010. 5.

Since the parties and the suit schedule properties are

identical in both the suits and the judgments have been rendered

by

the

same

Judge

i.e.,

Senior

Civil

Judge,

Chikmagalur, they are taken up together for common discussion.

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6.

Plaintiffs in O.S.No.9/2007 had sought for the main

relief of declaration of title to the effect that they are the absolute owners of the schedule properties i.e., 3 in number as described in the schedule appended to the said suit.

The said

suit was contested by filing a detailed written statement by the first defendant.

As already said after framing of issues, PW.1

was examined in chief and documents got marked. He did not tender himself for cross examination instead of eschewing his evidence and proceeding to dismiss the suit for default in the light of plaintiff not adducing evidence by himself and leading further evidence; the Court has proceeded to pass a Judgment on merits. It is this Judgment, which is called in question. The very procedure adopted by the trial Court is not in accordance with law. 7.

So far as the connected suit bearing O.S.No.97/2010

is concerned, it is a suit for partition and separate possession. The claim of plaintiff therein and the defence set up by the defendants therein, is virtually dependant upon the outcome of the earlier suit filed for the main relief of declaration of title.

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Both the suits have been disposed of by the same Judge. Infact, the records would disclose that the pleadings of the earlier suit was produced as documents in O.S.No.97/2010 and they were marked. Instead of clubbing both the suits and passing a common Judgment since the parties and schedule properties are identical, the learned judge has chosen to dismiss one suit on merits, even without there being any evidence in the eye of law and decreeing the connected suit. Therefore, the procedure adopted by the learned trial Judge is not in accordance with law. The trial Judge should have made an attempt to club both the suits by invoking the provisions of Section 151 of CPC, more particularly when the pleadings of O.S.No.9/2007 were produced in O.S.No.97/2010. 8.

After hearing the learned Counsel and perusing the

records, we are of the opinion that both the Judgments will have to be set aside by allowing these appeals and the matter is to remanded to the trial Court with a direction to club both the suits and to pass the common Judgment at the earliest after giving opportunities to the parties to adduce additional evidence

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inclusive of tendering PW.1 for cross-examination.

It is made

clear that the evidence already recorded in both the cases will remain for all practical purposes and the parties can adduce additional evidence. Hence, the following:ORDER Both the appeals are allowed. The Judgment and Decree passed in O.S.No.9/2007 and O.S.No.97/2010 are set aside. Both the suits are remitted to the trial Court i.e., Senior Civil Judge, Chikmagalur, with a direction to club both the suits and to record common evidence by giving opportunity to the parties in both the suits and thereafter to dispose of the matter at the earliest, preferably within a period of six months from the date of first appearance. Parties shall appear before the trial Court on 5.11.2014 without awaiting further notice. Since the matters are remanded, Court Fees paid in both the appeals are directed to be refunded to the appellants, in entirety. There is no order as to costs.

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Copy of this Judgment shall be kept in the connected appeal RFA 2180/2012 (Par).

Sd/JUDGE

Sd/JUDGE

cp*