4 4 1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 01St DAY OF AUGUST 2011 PRESENT THE HONELE MR JUSTICE V.G.SABHAHIT AND THE HON’BLE MR JUSTICE B MANOHAR REGULAR FIRST APPEAL No. 1294/2006(PAR/POS) Between: Vijayakumar Andanáppa Malekoppa, Aged about 43 years, 0cc: agriculturist, Of Tagore Road, Extension, Gadag-528 101. 2. Sushila, W/o. Andanappa Malekoppa, Aged about 68 years, 0cc: Household Work, Of Tagore Road, Extension, Gadag-528 101. Appellants (By Sri. B.V.Somapur, Advocate) And: Geetha. D/o. Andanappa Malekoppa, After marriage called as Geetha Shoba, W/o. Jagadish Hullur, Aged about 38 years, 0cc: Household Work. Of Hiremannur, Ron Tq-582 209. Resp6ndent (By Sri. Santosh B. Rawoot, Advocate for Sri.Mallikarjun C. Basareddy, Advocate) This RFA is filed under Section 96 R W Order XLI Rule 1 of CPC against the Judgment and Decree dated 19.04.2006 passed in O.S.No.202/2003 on the file of the Addl. Civil Judge (Sr.Dn.4. Gadag. partly decreeing the suit for partition and separate possession. This appeal coming on for final hearing this da, V.G.SABHAIIIT. J.. delivered the following: JUDGMENT This appeal is filed by defendants 1 and 2 in O.S.No.202/2003 on the file of the Additional Civil Judge (Sr.Dn.), Qadag. being aggrieved by the judgment and decree dated 19 4 2006 ‘wherein the suit filed by the plaintiff/respondent herein has been decreed in part holding that the plaintiff is entitled to 1/3 share in the suit schedule 1(A) and 1 (C) properties. The claim of the plaintiff in respect of suit 1(B) property was rejected and ordered to draw the preliminary decree directing the parties to bear their own costs. 2. The material facts necessary for the disposal of the appeal are as follows with reference to the rank of the parties before the Trial Court. 3. The plaintiff filed a suit in O.S.No.202/2003 on 12-9 2002 seeking for her I / 3 share in the suit ‘15 schedule 1(A), 1(B) and 1(C) properties by metes and bounds, for costs and mesne jwofits. It is averred in the plaint that the plaintiff and defendant No.1 are the children of defendant No.2 and Andanappa Malekoppa. Andanappa Malekoppa was holding the suit schedule properties as a member of the joint family and died on 7-8-1968 leaving behind his wife-second defendant, daughter-plaintiff and son-defendant No.1. Wherefore the plaintiff is entitled to 1/3 ‘share in the suit schedule properties. 4. The suit was Fesisted by the defendants denying the averments made in the plaint that the suit schedule properties are joint family properties and that the plaintiff is entitled for 1/3 share in the same. The averments made in the plaiht were denied and it is averred that the plaintiff had given up her share in the joint family properties and he had paid the consideration of Rs.75,000/- which was paid into KCC Bank, Gadag on 10-4-1991 and 15-4-1991 and this money was paid as per the demand and direction of the .“.. . 4 plaintiff and the plaintiff has received the said money in satisfaction of giving up of her share in the joint family properties as per the settlement made by the elders between the plaintiff and defendants. A sum of Rs.75,000/- was accepted by the plaintiff towards full and final settlement of her claim in the joint family properties. 5. The Trial Court framed the appropriate issues, which reads as follows: (i) Whether plaintiff proves that, she and defendants together have succeeded to the suit properties after the death of Andanappa? (ii) Whether plaintiff proves her joint possession of the uit properties along with defendants? (iii) Whether defendants prove that, suit 1(B) properties are the self acquired properties of defendant No.1? (iv) Whether defendants prove that, plaintiff has no right over the suit properties as she has given up her -S share by receiving Rs.75,000/- as stated in pan (4) of the written statement? (v) Whether plaintiff is entitled to the relief sought for? (vi) Whether defendants are entitled to compensatory costs? (vii) What order or decree? 6. On behalf of the plaintiff, the plaintiff was examined as P.W. I and she got marked Ex.Pl to Ex.P10. On behalf of the defendants, except getting marking the Marriage Card as Ex.D. 1, no oral or documentary evidence was got marked. In the meanwhile, on 10-04-2006 wlien the suit was posted for hearing the arguments on behalf of the defendants, the defendants’ counsel prayed for time, but the same was rejected and the matter was reserved for judgment. However, on the same day i.e. on 10-4-2006 an application was filed by the defendants for recalling the said order and also seeking permission to lead their evidence. But the same was rejected by an order dated b 6’ 19-4-2006 and the judgment and decree was also pronounced on the same day i.e. on 19-4-2006 decreeing the suit holding that the plaintiff is entitled for 1/3 share by metes and bounds in respect of the suit 1(A) and 1(C) properties and her claim in respect of 1(B) property was dismissed. Being aggrieved by the said judgment and decree, this appeal is filed by the defendants. 7. We have heard the learned counsel for the appellants and learned counsel for the respondent and reply arguments. 8. Learned counsel appearing for the appellants/defendants submitted that no sufficient opportunity was afforded to the defendants to lead their evidence. We are taken through the order sheet maintained by the Trial Court and the learned counsel submitted that the matter was adjourned for leading evidence of the defendants and on 10-4-2006, learned counsel for the defendants prayed for time to lead their evidence but the same was rejected and the matter was 7 reserved for judgment. On the same day i.e. on 10-4-2006, the defendants filed an application I.A.No.3 for recalling the said order reserving the matter and permit them to lead their evidence in the suit. The said application was rejected on 19-4-2006 though the learned counsel appearing for the plaintiff had endorsed on the said application that he has no objection to allow the application on payment of costs. It is submitted that the judgment and decree was passed without affording sufficient opportunity to the defendants to substantiate their case and even on merits. Hence, the judgment and decree passed by the court below is justified and the same is liable to be set aside by allowing this appeal. 9. Learned counsel appearing for the respondent argued in support of the judgment and decree passed by the Trial Court and submitted that sufficient opportunity was afforded to the appellants to lead their evidence which was not avØled by them. Counsel appearing for the appellants did not even choose to address any arguments and their prayer for S adjournment on 10-4-2006 was also rejected. Wherefore, the judgment and decree passed by the Trial Court and also order; rejecting I.A.No.3 is justified and the appeal may be dismissed as devoid of merits. 10. Having regard to the contentions urged by the learned counsel appearing for the parties the, the points that arise for our determination in this appeal are: (i) Whether the judgment and decree has been passed by the Trial Court is without affording sufficient opportunity to the appellants/defendants in the suit to lead their evidence to substantiate their case as averred in the written statement? (ii) Whether the judgment and decree passed by the Trial Court is justified or does not call for interference in this appeal? (iii) What order? 11. We answer the above points for determination as follows: C) Point No.1: The judgment and decree passed by the Trial Court is liable to be set aside as the same is passed without affording sufficient opportunity to the appellants to substantiate ttleir case. In view of our answer to Point No.1, Point No.2 is answered holding that the judgment and decree passed by the Trial Court is liable to be set aside and the matter be remitted back to the Trial Court with a direction to the Trial Court to permit the appellants to lead their evidence and thereafter pass fresh order in accordance with law. Point No.3 is answered as per the final order for the following reasons. 12. Points No.1 to 3 are considered together since they are interconnected. 13. We have given careful consideration to the contentions of the learned counsel appearing for the parties and scrutinized the mçtterials on record. 14. The materials on record clearly show that the judgment and decree has been passed by the Trial Court on 19-4-2006 witho4t giving opportunity to the ‘I Ii) defendants to lead their evidence and their prayer for adjournment to lead their evidence on 10-4-2006 was also rejected and the suit was reserved for judgment after hearing the learned counsel for the plaintiff. The material on record also shows that on the same day i.e. on 10-4-2006 the application LA.No.3 was filed seeking to set aside the order dated 10 4 2006 reserving the matter for judgment and to permit the applicants! defendants to lead evidence on their behalf. It was also endorsed on the application by the counsel for the plaintiff that he has no objection to allow the application on payment of costs. However the Trial Court rejected the application holding that the application is not maintainable as the same is filed after the suit was reserved for judgment. 15. The material on record and the order sheet maintained b3 the Trial Court ould clearly show that the application I.A.No.3 was filed on 10 4-200b the date on which prayer for adjournment to lead their evidence was rejected and also on the same day. the judgment was pronounced. Wherefore, it is clear that the Trial ‘Pt 11 Court could not have technically rejected T.A.No.3 on the ground that the application was not maintainable even though the counsel appearing for the plaintiff had endorsed on the application that he has no objection to allow the application and to permit the applicants/defendants to lead their evidence subject to payment of costs. 16. Having regard to the facts and circumstances of the case, we hold that the Trial Court has not afforded sufficient opportunity to the appellants to lead their evidence to substantiate their case as stated in their written statement. Consequently, the judgment and decree passed by the Trial Court without affording opportunity to the appellants/defendants to lead their evidence and without hearing the counsel appearing for the defendants cannot be sustainable in law and the same is liable to be set aside. However, it is necessary to impose cost having regard to the conduct of the I appellants that though the matter was posted on 20-3-2006, 23-3-2006. 27-3-2006, 29-3-2006 and • on 6-4-2006 to lead their evidence, they did not lead b 12 any evidence. Once again on 10-4-2006, learned counsel for the appellants sought for an adjournment, which was rejected and thereafter the arguments were heard on behalf of the plaintiff and the judgment was reserved on 10-4-2006. However, on the same day, the defendants filed an application l.A.No.3 for recalling the said order. Accordingly, we answer the points for determination. The appeal is allowed. Judgment and decree dated 19-4-2006 passed in O.S.No.202/2003 by the Trial Court is set aside on the ground that the Trial Court was not justified in rejecting l.A.No.3 on 19-4-2006 as not maintainable. Accordingly, LA.No.3 is allowed on payment of cost of Rs. 15,000/-, to be deposited before the Trial Court within six weeks from today. The Trial Court shall permit the defendants/ appellants to lead their evidence and thereafter hear the arguments of the learned counsel appearing for the parties and pass orders in accordance with law. . The suit is restored to the file of Additional Civil Judge (Sr. DnJ. Gadag with a direction to dispose of the suit afresh. On production of receipt by the appellants for having cleposiled tile cost. thc Trial Court shall give an opportunity to the defendants to lead their evidence. If the cost is not deposited within the time prescribed. the appeflants shall forfeit the benefit of this order and the judgment and decree impugned in this appeal shall stands conñrnle(l. The plaintiff is permitted to withdraw the cost amount that ill be deposited by the defendants/ appellants without any conditions. Sd/ JUDGE Sd/a 3UDGE mpk/ -