Karnataka High Court
Smt Revamma vs G Lokesh Babu on 24 July, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.32149/2017
C/W
WRIT PETITION NOS.32150/2017,
32151/2017,32152/2017,32153/2017(GM-CPC)
IN WP NO.32149/2017
BETWEEN:
1. SMT. REVAMMA,
AGED ABOUT 53 YEARS,
W/O LATE MUNIHANUMAIAH,
2. HANUMANTHARAJU,
AGED ABOUT 29 YEARS,
S/O LATE MUNIHANUMAIAH,
3. VENKATESH,
AGED ABOUT 27 YEARS,
S/O LATE MUNIHANUMAIAH
ALL ARE RESIDENTS OF
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... PETITIONERS
(BY SRI C. M. NAGABUSHANA, ADVOCATE)
2
AND:
1. G. LOKESH BABU,
AGED ABOUT 34 YEARS,
S/O R. B. GOVINDA REDDY,
R/AT NO.21, 1ST 'G' CROSS,
SUBBANNA GARDEN MAIN ROAD,
RPC LAYOUT,
BENGALURU-560040.
2. PRABHAKAR REDDY,
AGED ABOUT 58 YEARS,
FATHER'S NAME NOT KNOWN,
R/AT NO.14, 4TH CROSS,
NEAR SUVARNA STUDIO,
NAGARABHAVI II STAGE,
BENGALURU-560072.
3. NANJAPPA,
AGED ABOUT 52 YEARS,
FATHER'S NAME NOT KNOWN,
R/AT NO.16, 17,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
4. ANJINAPPA,
AGED ABOUT 43 YEARS,
S/O HANUMANTHARAYAPPA,
R/AT DODDANNA CIRCLE,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
5. MAADAPPA,
AGED ABOUT 82 YEARS,
3
S/O CHINNAPILLAPPA,
R/AT MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... RESPONDENTS
(BY SRI NATARAJA B. S., ADVOCATE FOR C/R1;
NOTICE TO R2 TO R5 DISPENSED WITH
VIDE ORDER DATED 24.07.2017)
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 8.7.2017 PASSED IN O.S.2580/2013
ON THE FILE OF THE XI ADDITIONAL CITY CIVIL SESSIONS
JUDGE, BANGALORE VIDE ANNEXURE-C.
IN WP NO.32150/2017
BETWEEN:
1. SMT. REVAMMA,
AGED ABOUT 53 YEARS,
W/O LATE MUNIHANUMAIAH,
2. HANUMANTHARAJU,
AGED ABOUT 29 YEARS,
S/O LATE MUNIHANUMAIAH,
3. VENKATESH,
AGED ABOUT 27 YEARS,
S/O LATE MUNIHANUMAIAH
ALL ARE RESIDENTS OF
MUDDAIAHANAPALYA,
4
VISHWANEEDAM POST,
BENGALURU-560091.
... PETITIONERS
(BY SRI C. M. NAGABUSHANA, ADVOCATE)
AND:
1. M. KRISHNAN,
AGED ABOUT 57 YEARS,
S/O MUNISWAMY,
R/AT NO.36,, 2ND CROSS,
3RD MAIN, NEAR BCC LAYOUT,
MICO LAYOUT, ATTIGUPPE,
VIJAYANAGAR,
BENGALURU-560040.
2. PRABHAKAR REDDY,
AGED ABOUT 58 YEARS,
FATHER'S NAME NOT KNOWN,
R/AT NO.14, 4TH CROSS,
NEAR SUVARNA STUDIO,
NAGARABHAVI II STAGE,
BENGALURU-560072.
3. NANJAPPA,
AGED ABOUT 52 YEARS,
FATHER'S NAME NOT KNOWN,
R/AT NO.16, 17,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
4. ANJINAPPA,
AGED ABOUT 43 YEARS,
S/O HANUMANTHARAYAPPA,
5
R/AT DODDANNA CIRCLE,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
5. MAADAPPA,
AGED ABOUT 82 YEARS,
S/O CHINNAPILLAPPA,
R/AT MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... RESPONDENTS
(BY SRI NATARAJA B. S., ADVOCATE FOR C/R1;
NOTICE ON R2 TO R5 ARE DISPENSED WITH
VIDE ORDER DATED 24.07.2017)
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 8.7.2017 PASSED IN O.S.3314/2014
ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BANGALORE AT ANNEXURE-C.
IN WP NO.32151/2017
BETWEEN:
1. SMT. REVAMMA,
AGED ABOUT 53 YEARS,
W/O LATE MUNIHANUMAIAH,
2. HANUMANTHARAJU,
AGED ABOUT 29 YEARS,
S/O LATE MUNIHANUMAIAH,
6
3. VENKATESH,
AGED ABOUT 27 YEARS,
S/O LATE MUNIHANUMAIAH
ALL ARE RESIDENTS OF
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... PETITIONERS
(BY SRI C. M. NAGABUSHANA, ADVOCATE)
AND:
1. SMT. G. VIDAYASHREE,
AGED ABOUT 31 YEARS,
D/O R.B.GOVINDA REDDY,
R/AT NO.21, 1ST G CROSS,
SUBBANNA GARDEN MAIN ROAD,
RPS LAYOUT, BENGALURU-560040.
2. PRABHAKAR REDDY,
AGED ABOUT 58 YEARS,
FATHER'S NAME NOT KNOWN,
R/AT NO.14, 4TH CROSS,
NEAR SUVARNA STUDIO,
NAGARABHAVI II STAGE,
BENGALURU-560072.
3. NANJAPPA,
AGED ABOUT 52 YEARS,
FATHER'S NAME NOT KNOWN,
R/AT NO.16, 17,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
7
4. ANJINAPPA,
AGED ABOUT 43 YEARS,
S/O HANUMANTHARAYAPPA,
R/AT DODDANNA CIRCLE,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
5. MAADAPPA,
AGED ABOUT 82 YEARS,
S/O CHINNAPILLAPPA,
R/AT MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... RESPONDENTS
(BY SRI NATARAJA B. S., ADVOCATE FOR C/R1;
NOTICE TO R2 TO R5 IS DISPENSED WITH
VIDE ORDER DATED 24.07.2017)
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 8.7.2017 PASSED IN O.S.2582/2013
ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BANGALORE AT ANNEXURE-C.
IN WP NO.32152/2017
BETWEEN:
1. SMT. REVAMMA,
AGED ABOUT 53 YEARS,
W/O LATE MUNIHANUMAIAH,
8
2. HANUMANTHARAJU,
AGED ABOUT 29 YEARS,
S/O LATE MUNIHANUMAIAH,
3. VENKATESH,
AGED ABOUT 27 YEARS,
S/O LATE MUNIHANUMAIAH
ALL ARE RESIDENTS OF
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... PETITIONERS
(BY SRI C. M. NAGABUSHANA, ADVOCATE)
AND:
1. G. VENKATESH NAIK,
AGED ABOUT 52 YEARS,
S/O GANGA NAIK,
R/AT NO.1857, 12TH CROSS,
5TH MAIN, VIJAYANAGAR II STAGE,
BENGALURU-560040.
2. PRABHAKAR REDDY,
AGED ABOUT 58 YEARS,
FATHER'S NAME NOT KNOWN,
R/AT NO.14, 4TH CROSS,
NEAR SUVARNA STUDIO,
NAGARABHAVI II STAGE,
BENGALURU-560072.
3. NANJAPPA,
AGED ABOUT 52 YEARS,
FATHER'S NAME NOT KNOWN,
9
R/AT NO.16, 17,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
4. ANJINAPPA,
AGED ABOUT 43 YEARS,
S/O HANUMANTHARAYAPPA,
R/AT DODDANNA CIRCLE,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
5. MAADAPPA,
AGED ABOUT 82 YEARS,
S/O CHINNAPILLAPPA,
R/AT MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... RESPONDENTS
(BY SRI NATARAJA B. S., ADVOCATE FOR C/R1;
NOTICE TO R2 TO R5 IS DISPENSED WITH
VIDE ORDER DATED 24.07.2017)
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 8.7.2017 PASSED IN O.S.5405/2013
ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BANGALORE AT ANNEXURE-C.
10
IN WP NO.32153/2017
BETWEEN:
1. SMT. REVAMMA,
AGED ABOUT 53 YEARS,
W/O LATE MUNIHANUMAIAH,
2. HANUMANTHARAJU,
AGED ABOUT 29 YEARS,
S/O LATE MUNIHANUMAIAH,
3. VENKATESH,
AGED ABOUT 27 YEARS,
S/O LATE MUNIHANUMAIAH
ALL ARE RESIDENTS OF
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... PETITIONERS
(BY SRI C. M. NAGABUSHANA, ADVOCATE)
AND:
1. SMT. SHILPASHREE,
AGED ABOUT 35 years,
W/O MADDANNA,
R/AT NO.6,5TH CROSS,
AMARAJYOTHINAGAR,
VIJAYANAGAR POST,
BENGALURU-560040.
2. ANJINAPPA,
AGED ABOUT 43 YEARS,
11
S/O HANUMANTHARAYAPPA,
R/AT DODDANNA CIRCLE,
MUDDAIAHANAPALYA,
VISHWANEEDAM POST,
BENGALURU-560091.
... RESPONDENTS
(BY SRI NATARAJA B. S., ADVOCATE FOR C/R1;
NOTICE TO R2 IS DISPENSED WITH
VIDE ORDER DATED 24.07.2017)
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 8.7.2017 PASSED IN O.S.1660/2013
ON THE FILE OF THE XI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BANGALORE AT ANNEXURE-C.
THESE WRIT PETITIONS COMING ON FOR
PRILIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
All these writ petitions are filed by the contesting defendants against the impugned order dated 8.7.2017 in O.S. Nos.1660/2013, 2580/2013, 2582/2013, 5405/2013 and 3314/2014, by which the cross-examination of PW.1 was taken as nil and posted the matter for arguments. 12
2. The 1st respondent in these writ petitions who is the plaintiff in O.S. Nos.1660/2013, 2580/2013, 2582/2013, 5405/2013 and 3314/2014 filed the said suits for Permanent Injunction in respect of the suit schedule properties morefully described in the respective suits contending that that he is the absolute owner in respect of the vacant sites morefully described in the schedule to the respective suits and the defendants who have no manner of right, title and interest are trying to interfere with the peaceful possession of the plaintiff over the suit schedule properties.
3. The contesting defendants filed the written statement and denied the plaint averments and contended that the plaintiff is not the owner of the suit schedule properties and he was not entitled to any relief of Permanent Injunction and therefore sought for dismissal of the suits.
13
4. When the matter was posted for cross-examination of PW.1, the contesting defendants and their counsel who were representing in all the cases, were absent and therefore trial Court proceeded to pass the impugned orders. By the impugned orders, the trial Court has taken the cross-examination of PW.1 as nil and posted the matters for arguments. Hence the present writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri C.M. Nagabushana, learned counsel for the petitioners contended that the suits filed by the plaintiff for Permanent Injunction in respect of vacant sites contending that he is the owner of the suit schedule properties. The same was disputed by the contesting defendants by filing the written statements separately. Since the rights of the parties are involved in respect of the immovable properties, 14 the trial Court ought to have given opportunity to cross- examine PW.1, but the same has not been done and therefore the learned counsel for the petitioners seeks to quash the impugned orders passed by the trial Court. Learned counsel further contended that the previous counsel for the contesting defendants returned all the case papers to the defendants on 7.7.2017. The defendants were under the impression that 8.7.2017 was holiday for the Courts since it was second Saturday. On 8.7.2017 since the defendants and their counsel were not present when the case was called, the trial Court proceeded to pass the impugned orders treating the cross-examination of PW.1 as nil and posted the matters for arguments. The absence of the defendants before the Court on 8.7.2017 was due to bonafide reasons and therefore he sought to quash the impugned orders passed by the trial Court by allowing the present writ petitions.
15
7. Per contra, Sri B.S. Nataraja, learned counsel for the 1st respondent - plaintiff in all the cases sought to justify the impugned orders and contended that inspite of granting sufficient opportunity to the contesting defendants, they have not availed opportunity and therefore the trial Court rightly passed the impugned orders taking the cross- examination of PW.1 as nil and same is in accordance with law.
8. Having heard the learned counsel for the parties, it is an undisputed fact that 1st respondent in all these writ petitions who was the plaintiff before the trial Court filed the suits for Permanent Injunction in respect of vacant sites morefully described in the schedule to the plaint of the suits contending that he is the owner in possession and enjoyment of same. The same was disputed by the defendants by filing the written statement. It is also not in dispute that when the matter was posted for cross- examination of PW.1, neither defendants nor their counsel 16 were present on 8.7.2017 and therefore the trial Court has taken the cross-examination of PW.1 as nil and posted the matters for arguments. The material on record clearly depicts that the suits filed by the plaintiff in respect of the immovable properties (vacant sites). The rights of the parties has to be decided on merits and the parties should not be thrown out from the court on technicalities. The previous counsel for the contesting defendants returned all the case papers to the contesting defendants on 7.7.2017 and the defendants were under the impression that 8.7.2017 would be a holiday for the Court as it was a second Saturday and therefore they have not appeared before the trial Court on 8.7.2017 when the case was called. Therefore the absence of the defendants before the Court on 8.7.2017 was due to bonafide reasons. The rights of the parties cannot be deprived on mere technicalities. When substantial justice and technical considerations are pitted against each other, cause of substantial justice 17 deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Admittedly, the dispute between the parties is in respect of the immovable properties. The rights of the parties has to be decided on merits after giving sufficient opportunity to both the parties. The same has not been done in these cases. It is also well settled that because of the fault on the part of the learned counsel for the defendants, the defendants should not suffer. In the circumstances, the trial Court ought to have given an opportunity to the defendants to cross-examine PW.1 and proceed further in the case. The same has not been done in the present impugned orders.
9. Taking into consideration the peculiar facts and circumstances of the present case, this Court is of the 18 considered opinion that the trial Court ought to have given an opportunity to the defendants to cross-examine PW.1 imposing reasonable costs and permitted the defendants to lead their evidence. The same has not been done.
10. In view of the aforesaid reasons, the writ petitions are allowed. The impugned orders dated 8.7.2017 made in O.S. Nos.1660/2013, 2580/2013, 2582/2013, 5405/2013 and 3314/2014 are quashed. The defendants are permitted to cross-examine PW.1 and lead their evidence subject to payment of costs of Rs.3,000/- (Rupees three thousand only) in each of the suits. Costs shall be payable by the defendants to the plaintiff before the trial Court on the next date of hearing. Subject to payment of the costs, the trial Court is directed to permit the defendants to cross-examine PW.1 on the next date of hearing and complete the cross-examination within one or two hearing dates and permit the defendants to lead further evidence within a reasonable period. The trial Court is 19 directed to decide the suits strictly in accordance with law based on the oral and documentary evidence to be adduced and to be produced by the parties. Taking into consideration the suit is of the year 2013 and more than four years have elapsed, the defendants shall cross- examine PW.1 and complete their evidence within a period of three months and the trial Court shall decide the suit within six months after the completion of the evidence of the defendants in accordance with law.
Ordered accordingly.
Sd/-
JUDGE gss/-