Karnataka High Court
Smt. Noorjahan W/O Abdulrajak Mulla And ... vs Smt Salima W/O Shirajahmad Mulla And ... on 11 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:11787-DB
RFA No. 100434 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 11TH DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100434 OF 2022 (PAR/POS)
BETWEEN:
1. SMT. NOORJAHAN
W/O ABDULRAJAK MULLA,
AGE: 88 YEARS,
OCC: AGRICULTURE AND HOUSE WORK,
R/O. SOMAWARPETH KITTUR,
TAL. KITTUR, DIST. BELAGAVI - 591115.
2. SHRI MAHAMMAD ARIF
S/O ABDULRAJAK MULLA,
AGE: 57 YEARS,
OCC: AGRICULTURE,
Digitally signed
by SAMREEN
R/O: SOMWAR PETH, MULLA STREET,
AYUB
DESHNUR
KITTUR, TAL & DIST: BELAGAVI.
Location:
HIGH COURT
OF 3. SHRI ASIF MAHAMMAD
KARNATAKA
DHARWAD S/O. ABUDULRAJAK MULLA
BENCH
(SINCE DECEASED BY LR'S)
3(A). MASOODAHMED ARIF AHMED MULLA
AGE: 28 YEARS,
R/O: SOMWAR PETH, MULLA STREET,
KITTUR, TAL & DIST: BELAGAVI.
3(B). ASHFAQAHMED S/O. ASIF AHMED MULLA
AGE: 26 YEARS, OCC: STUDENT,
R/O: SOMWAR PETH, MULLA STREET, KITTUR
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RFA No. 100434 of 2022
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TAL & DIST: BELAGAVI.
3(C). MUSARRAT JAHAN D/O. ASIF AHMED MULLA
AGE: 28 YRS, OCC: HOUSEHOLD WORK,
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI.
3(D). MUSKAN D/O ASIF AHMED MULLA
AGE: 18 YRS, OCC: STUDENT,
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI.
4. SHRI ALTIFAHAMMAD
S/O ABDULRAJAK MULLA
AGE: 51 YEARS, OCC: AGRICULTURE
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI
5. SMT. FARZANA BANU
W/O ASIFMAHAMMAD MULLA
AGE: 53 YEARS, OCC: AGRICULTURE
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI.
...APPELLANTS
(BY SRI. CHETANA S. BIRAJ, ADVOCATE)
AND:
1. SMT. SALIMA W/O SHIRAJAHMAD MULLA
AGE: 85 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O: CIVIL HOSPITAL ROAD
FORT DHARWAD,
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
2. SMT. SHAMEEM W/O HAFIZ ATTAR
AGE: 62 YEARS, OCC: AGRICULTURE
& HOUSEHOLD WORK,
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RFA No. 100434 of 2022
HC-KAR
R/O: CIVIL HOSPITAL ROAD
FORT DHARWAD, A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
SHRI ILIYAS S/O SHIRAJAHMAD MULLA
(SINCE DECEASED BY HIS LR'S)
3. SMT SHAHANAZ BEGAUM
W/O. ILIYAS MULLA
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
4. SHRI ABDUL RAHIM S/O ILIYAS MULLA
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
5. KUMARI NISHAT D/O ILIYAS MULLA
AGE: 33 YEARS, OCC: STUDENT,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
6. SMT. HASEENA W/O USMAN SHAIKH
AGE: 55 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O: BELAGAVI, TAL & DIST: BELAGAVI
NOW AT LONDON
7. SHRI IMTIYAZ S/O SHIRAJAHMAD MULLA
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
8. SHRI EJAZ S/O SHIRAJAHMAD MULLA
AGE: 48 YEARS, OCC: AGRICULTURE,
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RFA No. 100434 of 2022
HC-KAR
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
9. SHRI. IRSHAD S/O SHIRAJAHMAD MULLA
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD
10. SHRI FAZLURREHMAN
S/O. MAHAMMADYASIN TOPINKATTI
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS,
DHARWAD, TAL & DIST: DHARWAD
11. SHRI. HIZABULREHMAN
S/O MAHAMMADYASIN TOPINKATTI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD
SHRI KHALEELULREHAMAN
S/O MAHAMMADYASIN TOPINKATTI
(SINCE DECEASED BY HIS LR'S)
12. SMT. HASINA
W/O KHALEELULRAHMAN TOPINKATTI
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD
13. KUMARI FIRDOS
D/O KHALEELULRAHMAN TOPINKATTI
AGE: 23 YEARS, OCC: STUDENT,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD
14. KUMAR AYUB
S/O KHALEELULRAHMAN TOPINKATTI
R/O: KUSUM NAGAR, 9TH CROSS,
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RFA No. 100434 of 2022
HC-KAR
DHARWAD, TAL & DIST: DHARWAD.
15. KUMAR ASFAN
S/O KHALEELULRAHMAN TOPINKATTI
AGE: 13 YEARS, OCC: STUDENT,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD.
16. SHRI AMJADHUSEN
S/O MAHAMMADYASIN TOPINKATTI
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS,
DHARWAD, TAL & DIST: DHARWAD.
SMT. ABEDA W/O BABAJAAN INAMDAR
(SINCE DECEASED BY LR'S)
17. SMT. SHAHEENARA
W/O MOHAAMMEDALI SANADI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: COLD DRINK HOUSE,
NEAR M.K.HUBBALLI BUS STAND,
M.K.HUBBALLI, TAL-KITTUR, DIST-BELAGAVI.
18. SRI. NASIR BABAJAN INAMDAR
AGE: 53 YEARS,
OCC: AGRICULTURE AND
POLICE DEPARTMENT,
R/O: MALMARUTI PO4LI4CE STATION,
SHRINAGAR, BELAGAVI,
TAL & DIST: BELAGAVI.
19. SMT. SABIYABANU
W/O MOHAMMEDALI KITTUR
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: SURALI, MADAGAON, GOA.
20. SHRI. NAEEM BABAJAN INAMADAR
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: JAVIDBHAI GHEEWALE,
NEAR NAMAKAWALA SHOP, 6TH CROSS,
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RFA No. 100434 of 2022
HC-KAR
AZIM NAGAR, BELAGAVI,
TAL & DIST: BELAGAVI.
SMT. KHAWAJABI
W/O MAHABOOBSUBANI MOMIN,
(SINCE DEAD BY HIS LR'S)
21. SMT. ASIYA W/O SHAMIM MANHOLI
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: BEHIND BST QUARTERS,
BLOCK NO.1, QARTER NO.1,
NEAR ARBIYA HOTEL, MUMBAI CENTRAL,
MAHARASHTRA STATE.
22. SHRI WASIM BABAJAN MOMIN
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: NEAR MADINA MASJID,
GURUWAR PETH KITTUR,
A/P: KITTUR, TAL: KITTUR,
DIST- BELAGAVI-591115.
23. SMT. RAEESA
W/O AMJADHUSEN TOPINKATTI,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: KUSUMNAGAR,
4TH CROSS SADANAKERI,
DHARWAD,
TAL & DIST: DHARWAD-580007
24. SMT. FATIMA W/O MAHAMMADSHAFI KITTUR,
AGE: 64 YEARS, OCC: AGRICULTURE
R/O: AUTO NAGAR, DOUBLE ROAD,
BELAGAVI, TAL & DIST: BELAGAVI- 590015
25. SHRI MAHAMMADGOUSE
S/O ABDULKHADAR USTAD,
AGE: 68 YEARS, OCC: BUSINESS,
R/O: NEKAR ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
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RFA No. 100434 of 2022
HC-KAR
26. SHRI VISHNU S/O NINGAJI KALAL,
AGE: 66 YEARS, OCC: BUSINESS,
R/O: NEKAR ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
27. SHRI. MANJUNATH S/O PRAKASH KALAL
AGE: 29 YEARS, OCC: BUSINESS,
R/O: MULLA ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
28. SHRI. INAYATULLA
S/O SULTANSAB BELAWADI
AGE: 43 YEARS, OCC: BUSINESS,
R/O: MULLA ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
29. SHRI SABIYA W/O ILIYAS MULLA
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
C/O: TABASSUM W/O ZIAULHAQ ATTAR
R/O: SINGAPORA MAIN ROAD,
M.S. PALAYA CIRCLE,
NEAR LIMRA EDUCATION
AND WELFARE TRUST, JALAHALLI,
BENGALORE-560097.
30. SMT. TABASSUM W/O ZIAULHAQ ATTAR,
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
C/O: TABASSUM W/O ZIAULHAQ ATTAR
R/O: SINGAPORA MAIN ROAD,
M.S. PALAYA CIRCLE,
NEAR LIMRA EDUCATION
AND WELFARE TRUST, JALAHALLI,
BENGALORE-560097.
31. SMT. TAHSEEN D/O I KALLEMANI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O: MALAPUR MAIN ROAD,
OPPOSITE RAMANAGOUDAR HOSPITAL,
DHARWAD, A/P: DHARWAD,
TAL & DIST: DHARWAD-58008
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RFA No. 100434 of 2022
HC-KAR
32. KUMARI RUKHSAR D/O ILLIYAS MULLA,
AGE: 35 YRS, OCC: STUDENT,
C/O SRI BASJEER HALABHAVI
R/O: YATTINGUDD ROAD, MALAPUR,
A/P: DHARWAD, TAL & DIST: DHARWAD-58008
...RESPONDENTS
(BY SMT. P.S.JADHAV, ADVOCATE FOR C/R1 AND R7;
SRI. MAHESH WODEYAR, ADVOCATE FOR
R11 AND GPA HOLDER FOR R10, R12, R17 TO R20, R22 TO R24;
R14 AND R15 ARE MINORS REP. BY R12;
NOTICE TO R13, R16, R21, R28 TO R32 ARE DISPENSED WITH
VIDE ORDER DATED 04.12.2023;
NOTICE TO R2 TO R6, R8, R9, R25, R26 AND R27 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 22.06.2022 PASSED IN
O.S.NO.25/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BAILHONGAL PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
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NC: 2025:KHC-D:11787-DB
RFA No. 100434 of 2022
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC'), by the defendant Nos.1 to 5 calling in question the judgment and decree dated 22.06.2022 passed in OS No.25/2014 by the Senior Civil Judge, Bailhongal (for short, 'the Trial Court'), whereunder, the suit for partition and separate possession filed by the plaintiffs/respondent Nos.1 to 9 herein has been decreed by the Trial Court.
2. The parties will be referred to as per their ranks before the Trial Court for the sake of convenience.
3. It is the case of the plaintiffs that the propositus namely Abdulraheem died on 13.12.1984, and his wife Jaibunissa died on 25.08.1997. The genealogy of the parties is extracted hereunder for reference:
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR GENEALOGY Abdulraheem S/o. Abdulrajak Mulla (died on 13-12-1984) Jaibunissa (died on 25-08-1997) Abdulrajak Shirajahmad Noorjahan Abeda Khawajabi Fatima (died) (died) (died 2014) (D-10) (D-11) (D-12) Noorjahan Mohammadyasin (D-1) (Died) Fazlurrehman Hizabulrehaman Khaleelulrehaman Amjadhusen (D-6) (D-7) (D-8) (D-9) Mohammedarif Asifmahammad Altafahmed Salima (D-2) (D-3) (D-4) (P-1) Farzana banu (D-5) Shameembanu Iliyas Haseenabanu Imtiyaz Ejaz Irshad (P-2) (P-3) (P-4) (P-5) (P-6) (P-7)
4. It is the further case of the plaintiffs that the properties of the propositus, not having been divided or partitioned, the parties are in joint possession and enjoyment as tenants in common and hence, the plaintiffs filed the suit for partition seeking for their 2/8th share in the suit schedule property.
5. The defendant Nos.1 to 5, 13, 14 and 15 entered appearance through their counsel. The other defendants
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR remained absent and were placed exparte before the Trial Court.
6. The defendant Nos.1 to 5 in their written statement has disputed the case of the plaintiffs and also the genealogy and contended that there is no cause of action to file the suit against the defendants. It is specifically denied that there was no partition. That the names of the defendant Nos.1 to 5 have been entered in the revenue records lawfully and the alienations made have not been challenged. That the plaintiffs are not the legal representatives of deceased Abdul Rahim. It is the specific case of the defendants that the father of the plaintiff Nos.3 and 6 got executed a relinquishment deed dated 05.11.1986, in favour of defendant No.2 and the father of plaintiff Nos.3 and 6 ceased to have any rights in the suit properties consequent to execution of the said relinquishment deed. Various contentions have been taken by the defendants on merits of the matter and a counter claim has also been made,
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR whereunder, the defendant Nos.1 to 5 sought for the relief of declaration and other reliefs.
7. The defendant Nos.13 and 14 have also filed their written statements. On the basis of pleadings of the parties, the Trial Court framed twelve issues and two additional issues.
8. PW1 was examined on behalf of the plaintiffs and Ex.P1 to P15 has been marked in evidence. Defendant No.14 has been examined as DW1 and Ex.D1 to D25 have been marked in evidence. The Trial Court by its judgment and decree dated 22.06.2022 partly decreed the suit and passed the following order:
"The suit of the plaintiffs is partly decreed with proportionate costs.
The plaintiff Nos.1 to 7 are together entitled for 2/8th share. Defendant Nos.1 to 5 are together entitled for 2/8th share. The defendant Nos.6 to 9 are together entitled for 1/8th share. The defendant Nos.10 to 12 are entitled for 1/8th shares each in the suit properties except item Nos.5 and 6."
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9. Being aggrieved, the present appeal is filed by defendant Nos.1 to 5.
10. Along with the above appeal, the appellants/defendant Nos.1 to 5 have, inter alia, filed IA No.2/2022 under Order XLI Rule 27 read with Section 151 of CPC, seeking leave of the Court to produce the original relinquishment deed and original gift deed. It is averred in the affidavit filed in support of the application that the documents produced along with application were misplaced and could not have been produced earlier.
11. Heard the submissions of learned counsel for the appellants, learned counsel for respondent Nos.1 and 7 as well as the learned counsel for respondent No.11, who was also the GPA holder of respondent Nos.10, 12, 17 to 20 and 22 to 24.
12. It is the contention of the learned for the appellants that suit for partition filed by the plaintiffs is not maintainable and that the Trial Court ought not to have decreed the suit. Various contentions have been urged on
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR the merits of the matter to impeach the findings recorded by the Trial Court.
13. In addition to the grounds urged in the memorandum of appeal, the learned counsel for the appellants/defendant Nos.1 to 5 submits that although the defendant Nos.1 to 5 have filed their written statement, they do not contest the suit inasmuch as, the defendant Nos.1 to 5 did not cross examine PW1 and also did not adduce any oral or documentary evidence.
14. It is further contended that IA No.2/2022 is filed seeking leave to produce the documents which are required to be taken on record and the matter is required to be remanded to enable the defendants to contest the suit of the plaintiffs on its merits.
15. Learned counsel for respondent Nos.1 and 7 vehemently opposes the contentions put forth on behalf of the appellants contending, inter alia, that the appellants have an adequate opportunity to contest the suit on its merits and that the appellants have not availed the
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR opportunity, the judgment and decree passed by the Trial Court is just and proper.
16. Per contra, the learned counsel for respondent Nos.11 who was the GPA holder of respondent Nos.10, 12, 17 to 20 and 22 to 24, also seeks for an opportunity to contest the suit of the plaintiffs on its merits and seeks for remand of the matter to the Trial Court.
17. The submissions of learned counsel for the parties have been considered and material on record have been perused.
18. The questions that would arise for our consideration are as under:
1) Whether IA No.2/2022 is required to be allowed?
2) Whether the judgment and decree passed by the Trial Court is required to be interfered with?
Regarding question No.1:
19. IA No.2/2022 is filed under Order XLI Rule 27 of CPC by the appellants seeking to produce two documents
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR namely the relinquishment deed dated 05.11.1986, and gift deed dated 22.10.1987. It is depose in the affidavit filed in support of the said application that the custody of the said documents having been misplaced and due to old age of the appellants the same could not be traced during the pendency of proceeding before the Trial Court. It is further deposed that the documents were in the custody of appellant No.1 and they were traced before filing of the appeal.
20. Although the learned counsel for the respondents/plaintiffs vehemently opposes IA No.2/2022, it is forthcoming that the application was filed at the time of filing of the appeal itself. It is further pertinent to note that the appellants/defendant Nos.1 to 5 had taken a specific defence regarding the relinquishment deed and the gift deed in their written statement. In view of aforementioned circumstances, it is clear that the said documents are necessary for adjudication of the questions that would arise for consideration in the present appeal. In view of the same
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR and in the interest of justice, it is expedient that IA No.2/2022, will be favourably considered. Hence question No.1 is answered in the affirmative. Regarding question No.2:
21. Although various contentions have been urged by the respective parties on the merits of the matter, it is pertinent to note that the defendant Nos.1 to 5 did not cross examine the PW1, nor led any oral or documentary evidence. An opportunity is sought to contest the suit on its merits by remanding the matter. It is pertinent to note that the evidence in the suit was adduced during the period of COVID-19 pandemic. It is further pertinent to note that PW1 has not been cross examined by any of the other defendants except defendant No.13 and that only defendant No.13 has adduced evidence as DW1 and produced documentary evidence at Ex.D1 to D25.
22. Having regard to the aforementioned, in view of the fact that IA No.2/2022 has been allowed and the documents produced along with the said application have
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR been taken on record, keeping in mind the fact that valuable rights of the parties have been adjudicated by the Trial Court as also rights in immovable property, in view of the specific defence taken by defendant Nos.1 to 5 and the documents produced in that regard which have been taken on record in the present appeal, it is just and proper that the defendants be afforded another opportunity to contest the suit of the plaintiffs on its merits by issuing certain directions. Hence, question No.2 framed for consideration is answered in the affirmative.
23. In the result, we pass the following:
ORDER
(i) IA No.2/2022 is allowed and the documents produced along with the application are taken on record;
(ii) The appeal is allowed;
(iii) The judgment and decree dated
22.06.2022 passed in OS No.25/2014 by the Senior Civil Judge, Bailhongal, is hereby set aside;
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(iv) The parties shall appear before the Trial Court on 16.10.2025 without requirement of any further notice being issued in this regard;
(v) Consequent to the appearance of the parties, the Trial Court shall afford another opportunity to the parties to lead evidence/further evidence and conduct further proceedings in accordance with law;
(vi) The Registry shall transmit the records of the Trial Court together with the documents produced along with IA No.2/2022 to the Trial Court forthwith;
(vii) All contentions of the parties on the merits of the matter are kept open.
(viii) The parties shall co-operate with the Trial Court for speedy disposal of the suit and the Trial Court shall endeavour to dispose of the suit as expeditiously as possible as, i any event not later than eight (8) months
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NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022 HC-KAR from the date of appearance of the parties.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE Sd/-
(C.M. POONACHA) JUDGE SMM / Ct:vh List No.: 1 Sl No.: 29