Karnataka High Court
Pradeep S/O Basavprabhu Halagunki vs Smt.Shobha And Anr on 18 April, 2023
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RSA No. 200191 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 200191 OF 2019 (DEC-)
BETWEEN:
1. PRADEEP S/O BASAVPRABHU HALAGUNKI
AGE: 39 YEARS, OCC: AGRIL & BUSINESS,
R/O: RAJPUT GALLI, INDI,VIJAYAPUR,
TQ. & DIST. VIJAYAPUR-586101.
...APPELLANT
(BY SRI. SHIVASHANKAR H MANUR, ADVOCATE)
AND:
1. SMT.SHOBHA
W/O LINGARAJ BAGALI @ HALAGUNKI,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
Digitally signed by R/O: C/O. S.S.HIREMATH,
SOMANATH
PENTAPPA MITTE PDJ LAYOUT, PLOT NO.56,
Location: High
Court of VAJRAHANUMAN NAGAR, VIJAYAPUR,
Karnataka
TQ. & DIST. VIJAYAPUR-586101..
2. KUMAR NIKHIL
S/O LINGARAJ BAGALI @ HALAGUNKI
AGE: 12 YEARS,
OCC: NIL, REPRESENTED BY NATURAL
MOTHER/NEXT FRIEND
THE RESPONDENT NO.1.
R/O: C/O. S.S.HIREMATH,
PDJ LAYOUT, PLTO NO.56,
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RSA No. 200191 of 2019
VAJRAHANUMAN NAGAR, VIJAYAPUR,
TQ. & DIST. VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE
FOR R1 AND 2)
THIS RSA IS FILED U/S. 100 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE DATED 22.02.2019 PASSED IN
R.A.NO.155/2017 ON THE FILE OF THE IV ADDL. DISTRICT
JUDGE, VIJAYAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 25.10.2017
PASSED IN O.S.NO.61/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, INDI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Learned counsel appearing for the appellant and learned counsel appearing for respondents are present.
2. By consent of learned counsel for both the parties, even though the matter is slated for Admission, the same is taken up for final disposal.
3. This appeal arises out of the judgment and decree dated 22.02.2019 passed in R.A.No.155/2017 by the learned IV Addl. District and Sessions Judge, Vijayapur, dismissing the appeal and confirming the judgment and -3- RSA No. 200191 of 2019 decree dated 25.10.2017 passed in O.S.No.61/2014 by the learned Senior Civil Judge and JMFC, Indi.
4. The short point that arises for consideration is, Whether the First Appellate Court is justified in dismissing the appeal even after coming to the conclusion that the opportunity to rebut the evidence of the plaintiffs was not given to the defendant and it would not have made any effect on the out come of the judgment?
5. The factual matrix of the case is that, the plaintiff Nos. 1 and 2 filed a suit contending that the husband of the plaintiff No.1 and father of plaintiff No.2, Lingaraj was allotted the suit property in partition held in 1983 and accordingly, ME No.7074 was certified. The deceased Lingaraj was addicted to bad vices and the defendant being the distant relative of deceased Lingaraj induced him -4- RSA No. 200191 of 2019 to sign certain documents while he was in inebriated condition and a fraudulent document titled as Partition deed was created. Even after the death of Lingaraj on 7-2-2011, the plaintiffs continued in joint possession and in the year 2012, the defendant illegally came in possession of the suit property and threatened the plaintiffs with dire consequences which resulted in filing of this suit seeking declaration, possession and mesne profits.
6. The suit was opposed by the defendant contending that the document which came into existence during the life time of Lingaraj was genuine document. The said Lingaraj was not addicted to bad vices etc., The contentions of the plaintiffs were denied.
7. Based on the pleadings, the Trial Court had framed the issues and evidence was led by the plaintiffs. When the matter was posted for cross- examination of the plaintiff, IA No.3 was filed under order 14 Rule 5 CPC by the plaintiffs for reframing of the issues, which came to be -5- RSA No. 200191 of 2019 allowed and issues were reframed by the Trial Court on 8-6-2017. Thereafter, the plaintiffs did not adduce any further evidence and opportunities were also not given to the defendant to adduce any rebuttal evidence in respect of the reframed issues and ultimately, the suit came to be decreed on 25-10-2017.
8. Aggrieved by the same, defendant approached the First Appellate Court in RA No.155/2017 and contended that the sufficient opportunities were not given to the defendant. The First Appellate Court heard the learned counsel appearing for the appellant as well as the respondents/plaintiffs and dismissed the appeal, by judgment dated 22-2-2019. Aggrieved by the same, the defendant is before this Court in second appeal.
9. The perusal of the judgment of the First Appellate Court shows that the First Appellate Court opines that even if the defendant was given an opportunity, the matter revolves around the instrument dated 20-9-2002 which is disputed by the plaintiffs and therefore, nothing -6- RSA No. 200191 of 2019 could have been achieved by affording opportunity to the defendant. In para 14, 15 and 16 of the impugned judgment, the First Appellate Court has opined that not granting opportunity to the defendant has not resulted in any illegality by the Trial Court.
10. It is this observation by the First Appellate Court which is brought to the notice of this Court and it was submitted that the Rule of Audi alteram partem are not observed by the First Appellate Court. It is submitted by the learned counsel for the appellant that, rules of natural justice are to be followed by any judicial forum and the First Appellate Court justifying the action of the Trial Court which had not given opportunity to the defendant is not pardonable. It is submitted that it may be true that the defendant may not have a case in his favour, grant of an opportunity to put forth his plea, howsoever inconsistent it may be, is the hallmark of the any judicial proceedings and therefore, not following the Rules of Natural Justice cannot be approved by any Court of law.
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11. The perusal of para 14, 15 and 16 of the judgment of the First Appellate Court show that, it defends not providing the opportunity to the defendant and comes to the conclusion that, even if an opportunity has been given, it would be a wasteful exercise. In para 16, it is observed as below:
"16. As stated above, the above said instrument is a nullity and non-est. Further the said instrument is per say illegal and void. Hence when the entire defence is based on such instrument and there is no other defence evident this court declines to render so called opportunity to the defendant as it will be wasteful exercise in remanding the matter as no right, title or interest stands conveyed in favour of the defendant."
12. It is evident that the defendant had taken up the contentions that the husband of the plaintiff No.1 had executed the document and by virtue of the said document, the defendant is in possession of the property. Therefore, it was incumbent upon the Trial court to afford an opportunity to the defendant to adduce evidence after reframing of the issues. Copy of the order sheet of the -8- RSA No. 200191 of 2019 Trial Court placed before this Court in this appeal show that there is absolutely no mention of reframing of the issues after IA No.3 came to be allowed. However, perusal of the order passed by the Trial Court on IA No.3 under order 14 Rule 5 CPC show the issues framed earlier and the issues proposed by the plaintiffs are reproduced and on perusal of the impugned judgment, the reframed issues are also perused by this court. Obviously, after reframing of the issues, opportunities were not given either to the plaintiffs or defendant. It seems plaintiffs submitted that they have no additional evidence to be adduced then abruptly, the matter was closed and posted for arguments and then judgment came to be passed.
13. Under these circumstances, it is evident that the observation made by the First Appellate court that, remanding the matter to the Trial Court would be a wasteful exercise cannot be approved by this Court in any way. Under these circumstances, this Court comes to the conclusion that the matter has to be remanded to the trial -9- RSA No. 200191 of 2019 court with a direction to afford an opportunity to the parties to adduce evidence on the reframed issues and then to proceed with the matter for disposal according to law. Hence, the appeal deserves to be allowed and as such, the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree passed by the First Appellate Court in RA No.155/2017 on 22-02-2019 and the judgment and decree passed by the Trial Court in OS No.61/2014 on 25-10-2017 are hereby set aside and the matter is remanded to the Trial Court with a direction to permit the parties to adduce evidence by strictly adhering to the order 17 of CPC and also with a direction not to grant more than three opportunities to each of the parties.
If any additional adjournments to be given which
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RSA No. 200191 of 2019shall be on costs not less then Rs.500/- per hearing date.
(iii) Both the parties are directed to appear before the Trial Court on 01-06-2023 without waiting for a fresh notice by the trial court.
(iv) The Trial Court is directed to dispose of the same within six months from 1-6-2023.
(v) Registry is directed to send a copy of this judgment to the Trial Court immediately.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 29