Khaja Sab S/O Moulaan Sab Soudagar, vs Syed Sab S/O Moulaan Sab Soudagar, on 28 November, 2013

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Karnataka High Court

Khaja Sab S/O Moulaan Sab Soudagar, vs Syed Sab S/O Moulaan Sab Soudagar, on 28 November, 2013

Bench: Huluvadi G Ramesh

                   IN THE HIGH COURT OF KARNATAKA

                               GULBARGA BENCH

                  Dated this the 28th day of November, 2013

                                    Before

         THE HON'BLE MR JUSTICE HULUVADI G RAMESH

                 Miscellaneous Second Appeal 1082 / 2013

Between:

Khaja Sab, 57 yrs
S/o Moulaan Sab Soudagar
Agriculturist & Pvt. Service
R/oChincholi (H) Village
Chittapur Taluk                                               Appellant

(By Sri B D Hangarki, Adv.)

And:

1      Syed Sab, 68 yrs

2      Mastan Sab, 61 yrs

       Both are s/o Moulaan Sab Soudagar
       And are r/o Chincholi H Village
       Chittapur Taluk

3      Abdul Waheed Sab, 53 yrs
       S/o Hussain Sab, Agriculturist
       R/o # 5-389, Kalhandi (Opp. Police Station)
       Roja Bujurg, Gulbarga                                  Respondents

(By Sri Ameet Kumar Deshpande, Adv. for R1;
Sri Shivasharan Reddy, Adv. for R3)
                                                                          2


        Second Appeal is filed under S.106 r/w O 43 R 1(1)(u) of the      Civil
Procedure Code praying to set aside the judgment / order dated 23.1.2013 on IAs
2 & 3 in RA 9/2011 by the Sr.Civil Judge, Chittapur.

       Appeal coming on for Admission this day, the court delivered the
following:-

                                      JUDGMENT

Appellant / 2nd defendant is before this Court questioning the order of the Sr. Civil Judge, Chittapur on IAs 2 and 3 on 23.1.2013 in RA 9/2011.

IA 2 filed by the 3rd defendant under O 41 R 27, CPC was allowed permitting the 3rd defendant to get the documents marked before the trial court. IA 3 filed by the plaintiff under O 14 R 2, CPC was also allowed directing the trial court to frame additional issue as prayed thereby, allowing the appeal filed by the plaintiff/appellant under S.96 r/w O 41 R 1, CPC by setting aside the judgment of the trial court in OS 8/2003 and remitting the matter to the trial court which the appellant is challenging in this second appeal.

Heard the counsel representing the parties for sometime. The substantial questions of law that have been raised in the memorandum of appeal for consideration are - when the 3rd defendant had already taken back the documents from the court on 28.2.2009, whether the lower 3 appellate court was justified in allowing IA 2 filed by the 3rd defendant under O 41 R 27, CPC for production of documents and also whether the lower appellate court was justified in ordering to frame additional issue throwing the burden on the 3rd defendant when 3rd defendant had not made any counter claim in the suit. Several other substantial questions of law are also raised.

It appears, plaintiff and defendants 1 to 2 have filed a suit for declaration and injunction. Property is said to have been purchased by 3rd defendant which was the subject matter of declaration suit over which plaintiff and defendants 1 and 2 are litigating. To protect and assert his right when 3rd defendant filed an application and also subjected the document for proving the same in addition to production of document, the lower appellate court has rightly allowed the application and set aside the order of the lower court, also ordering to frame additional issues thereby allowing the 3rd defendant to make out his case throwing the burden on him.

In the suit filed for declaration and injunction between plaintiff and defendants 1 and 2 in respect of the property which is said to be purchased by the 3rd defendant, unless he asserts his right and is permitted to defend his case, it would rather workout hardship to him, he being a bonafide purchaser of the property for value. In that view of the matter, when the trial court has not 4 considered to afford one more opportunity to the 3rd defendant to make out his case over the property which he has purchased, it would obviously affect the interest of 3rd defendant. There is no illegality committed by the lower appellate court in setting aside the judgment and decree passed by the trial court and remitting the matter to the trial court to adduce evidence on the documents which are available with the 3rd defendant. Might be reasoning could be assigned on such production of documents at a later stage. However, in the interest of justice when such an order is passed, the same cannot be faulted.

Appeal is dismissed.

Sd/-

Judge An

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