Back
2019 Supreme(Kar) 1756
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.K. Sudhindrarao, J.
Smt. Zickrunnisa, W/O Late Subu Sab and Ors. – Appellants
Versus
Smt. Amina Bi W/O Late Syed Ghouse and Ors. – Respondents
R.S.A.No.858 of 2006
Decided On : 25-07-2019
For the Appellant :Sri V.R.Datar, Advocate For Sri Chandrakanth R Goulay
For the Respondent:Sri B.V.Gangireddy & Sri Y.Joyel Martin, Advocates
Headnote:
Civil Procedure Code, 1908 - Order 9 Rule 13, Order 43 Rule 1 and Section 151 - Self Acquired Property - Possession of Property - Whether Courts below were justified in decreeing suit of plaintiffs in its entirety on basis of inadequate and insufficient oral and material evidence available on record which do not substantially prove title of plaintiffs - Whether Court below was right in rejecting I.A.11 seeking permission to file written statement by its order and proceeding to decree suit exparte without affording further reasonable opportunity to these defendants to defend their case – Held, As present case is concerned, adjudication is not complete and total as defendants finally had no opportunity to file their written statement - Written statement is on file but fact that it is to be considered for purpose for further proceedings of case and that it did not happen in first phase of proceedings - It is to be seen that though not till eternity as far as possible endeavour shall be towards disposal on merits instead of default by parties - Further first appellate court also failed to observe same - In over all circumstances of case, Court is of sincere but firm finding that defendants deserve an opportunity to contest case on merits in a time bound frame but not without directing them to pay costs of Rs.30,000/- to plaintiffs which shall include expenditure incurred by plaintiffs, wherein case has not seen light of disposal despite closure of almost 24 years that it is one short of quarter century – Court find neither Judgment and decree of trial court nor Judgment and decree passed by first appellate court is proper as they have not underwent opportunity to defendants - This time defendants deserve to be directed finally to maintain promptness and punctuality before court - It is seen that this court has passed an order directing appellant/defendants to pay Rs.5,000/- by way of rent every month thereafter as a condition for staying operation of decree that was sought to be executed at that time - Considering possession of schedule property is with defendants despite disposal of case, same arrangement of payment of Rs.5,000/- by defendants to plaintiffs shall continue till disposal of further proceedings before trial court - Appeal allowed.
JUDGMENT :
This appeal is directed against the Judgment and decree dated 15.02.2006 passed in R.A.39/2005 by the learned Presiding Officer, District and Sessions Judge, Fast Track Court-III, Bangalore Rural District, Bangalore, wherein appeal came to be dismissed confirming the Judgment and Decree dated 31.01.1997 passed in O.S.No.351/95 by the learned Munsiff and JMFC, Hoskote.
2. Suit originally filed before the trial court was one for delivery of possession of the suit schedule property.
3. In order to avoid confusion and overlapping the parties are addressed with reference to their rankings as stood in the trial court.
4. The brief facts are: plaintiff claims to be the owner in possession of the suit schedule property consisting of built up portions bearing khatha No.23542054/1519, situated at Nalagalli, Hoskote. Plaintiff –Aminabi is the daughter-in-law of late Syed Mustafa Sab who was the owner of the schedule property. He had only son by name Syed Ghouse who is none other than the husband of plaintiff. The said Syed Ghouse died on 31.05.1987 leaving the plaintiffs as his legal heirs.
5. Defendant Nos.1 and 2 are stated to be daughters-in-law of brother of late Mustafa Sab. Schedule property was stated to be self acquired property of Syed Mustafa and upon his death it devolved upon Syed Ghouse and plaintiff. Plaintiffs claim that after one year to the death of said Ghouse the relatives of deceased Mustafa started requesting the plaintiff and asked plaintiffs to allow them (defendants) to be in possession of the schedule property assuring that it would be vacated at the direction of the plaintiffs.
6. Plaintiffs believed the version of defendants 1 and 2 and on mutual understanding the possession was given to defendants who entered the schedule permissive possession for over seven years as on the date of suit. It is also stated that plaintiffs required the suit schedule property for their family necessities and defendants did not reciprocate to the need and request of the plaintiffs. In this connection plaintiff No.1 got issued legal notice to the defendants calling upon to quit, vacate the schedule property and deliver the possession of the same to the plaintiffs. The defendants after receiving notice neither complied with nor replied.
7. The defendants after service of summons did not appear nor filed their written statement the matter came to be adjudicated by trial court on 31.01.1997 by which the original suit came to be decreed. Thereafter upon the decree being passed against defendants they moved an application before the trial court and said application was filed under Order 9 Rule 13 of CPC seeking setting aside the exparte decree passed against them in O.S.No.351/95.
8. Application came to be rejected by learned trial Judge. M.A.No.51/2000 was preferred against the order of rejection of the application. Miscellaneous appeal was allowed and the matter was remanded by learned Presiding Officer, Fast Track Court as per order dated 18.01.2003 and operative portion of the same is as under:
“In the result, miscellaneous appeal filed by the appellants against respondents under Order 43 Rule 1 of CPC is allowed. Consequently, the order of the trial court passed in miscellaneous 6/97 dated 162000 is hereby set aside. Further miscellaneous petition No.6/97 filed before the lower court by these appellants is allowed as prayed. Consequently, judgment and decree dated 31.01.97 passed exparte in O.S.No.351/95 by the trial court is hereby set aside. However the trial court is directed to give an opportunity to the defendants for filing their written statement and to frame necessary issues and then by recording evidence of both parties to dispose off the suit on merits. However both parties are directed to cooperate with the trial court for disposal of the suit expeditiously. Both parties are directed to bear their own costs of this appeal.”
9. In accordance with the terms of disposal the matter was remanded to the trial court with a di
