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2012 Supreme(Kar) 1094
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Ajit J. Gunjal, J.
Electronics and Radar Development Establishment and others —Appellant
Vs.
Meera —Respondent
R.F.A. No. 1577 of 2003
Decided on : 17-09-2012
Advocate Appeared:
Mr. Aniyan Joseph, for the Appellants, for the Appellant
Mr. Sunil, T. Seshagiri Rao, For the Respondent
Defendants have the right to cross-examine the plaintiff and their witnesses, and failure to contest the proceedings may result in adverse judgment.
Headnote:
defendant - Property Dispute - HAL Sanitary Board - Modula India vs. Kamakshya Singh Deo (AIR 1989 SC 162), Mallayya vs. Totayya (ILR 1989 KAR 807)
Fact of the Case:
The plaintiff claims ownership of a property and filed a suit for bare injunction against the defendants who trespassed into the property. The defendants did not file a written statement or avail the opportunity to contest the proceedings.
Finding of the Court:
The court found that the defendants did not avail the opportunity to contest the proceedings and decreed the suit of the plaintiff. The court also noted that the defendants have the right to cross-examine the plaintiff and their witnesses, as per legal provisions.
Issues: Ownership of the property, trespass by the defendants, failure of the defendants to contest the proceedings
Ratio Decidendi: The court emphasized that the defendants have the right to cross-examine the plaintiff and their witnesses, as per legal provisions, and allowed the matter to be remitted to the Trial Judge for fresh disposal.
Final Decision: The judgment and decree passed by the Trial Judge were set aside, and the matter was remitted for fresh disposal. The plaintiff was entitled to costs, and the defendants were directed to file their written statement within a specified time.
AJIT J. GUNJAL, J.—This appeal is by the defendant. The defendant is aggrieved by the judgment and decree passed by the learned Trial Judge decreeing the suit of the plaintiff-respondent in respect of a smaller site in the larger property.
2. During the course of the judgment, the parties would be referred to as per their ranking before the Trial Court.
3. The plaintiff claims to be the absolute owner in lawful possession of the suit schedule property. She claims that she purchased the same from one Smt. Sashikala Wife of Ramachandran pursuant to a registered sale deed dated 18.9.1999. The said property was coming under the jurisdiction of HAL Sanitary Board. The said Board assessed the property and collected the taxes. The plaintiff is regular in paying the said taxes and the Khata has also been changed in her name pertaining to the suit schedule property. Thus, according to her she is in exclusive possession of the suit schedule property.
4. The plaintiff would contend that though the defendants have no right, title or interest whatsoever over the suit schedule property trespassed into the suit schedule property and started interfering on 24.7.2000. In these circumstances, the present suit is filed for bare injunction.
5. The defendants were served with the suit summons appeared through their Advocate, but however, did not choose to file their written statement notwithstanding time granted by the learned Trial Judge.
6. During the course of trial, the plaintiff examined herself as PW1 and Exs.P1 to P9 were marked.
7. After the conclusion of the evidence of plaintiff’s side opportunity was given to the defendants to put forth their defence, if any, but however, they did not choose to avail the said opportunity. The learned Trial Judge after hearing the arguments decreed the suit of the plaintiff. Aggrieved by the same, the defendants are before this Court.
8. I have heard Mr. Aniyan Joseph, learned counsel appearing for the defendants as well as Mr. Sunil, learned counsel appearing for the plaintiff.
9. Mr. Aniyan Joseph, learned counsel appearing for the defendant submits that an opportunity may be given to the defendants to file their written statement and contest the proceedings inasmuch as it is a public property and the suit schedule property along with vast extent of land was acquired pursuant to a preliminary notification dated 22.1.1987 and the award is passed in the year 1991 and possession is also handed over on 26.7.1993.
10. Mr. Sunil, learned counsel appearing for the plaintiff submits that sufficient time was granted to the defendants to file their written statement so also to lead evidence, if any. But however, that has not been done. He submits that the defendants having not availed the opportunity provided cannot complain now that the matter is to be remitted for fresh disposal.
11. I have given my anxious consideration to the submissions made by the learned counsel appearing for both the parties.
12. Indeed, the observation made by the learned Trial Judge appears to be right inasmuch as sufficient time was granted. But however, the defendants did not avail the said opportunity. But however, what is significant to note is that when the matter was set down for evidence on 14.11.2002, the plaintiff has filed her evidence by way of an affidavit and on the same day the matter was set down for cross-examination. The learned Trial Judge has made a note ‘defendant and their Advocate absent, hence, plaintiff cannot be cross-examined’ and thereafter the matter is set down for arguments and the suit has been decreed.
13. Apparently, it is to be noticed that even though the defendants have not filed their written statement the law permits the defendant to cross-examine the plaintiff and their witnesses. Indeed, the defendant is required to cross-examine the plaintiff on the evidence adduced and the pleadings. But however, cannot suggest his defence in the cross-examination. If any decision is required one can refer to the d
