Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1044 (KAR)

Vasantha v. R. Kalidas

2019-05-31

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. The present appellant was the defendant in O.S.No.2049/2015, in the Court of learned V. Addl.City Civil Judge, (CCH-13), Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), which suit was filed by the present respondent in his capacity as a plaintiff seeking for partition in the suit schedule property. 2. The contention of the plaintiff in the trial Court was that the suit schedule property was belonging to his father- M.Rajappa, who was the head of Hindu Undivided joint family and during his life time, he was managing the entire family as a Karta. The plaintiff and the defendant are the children of said Rajappa. The plaintiff is the brother of the defendant. The plaintiff's father had married to one Smt.Lalithamma, who is the natural mother of the parties in the suit. After the death of said Smt.Lalithamma, plaintiff's father i.e., Rajappa, married to one Smt.Indira Bai as his second wife. The site was allotted to their father by the Bruhat Bengaluru Mahanagara Palike (BBMP). After the death of said Rajappa, his father, his second wife Smt.Indira Bai was residing in the schedule property. However, she was under the care of the plaintiff. Said Indira Bai also passed away on 17.1.2015. However, during her life time, BBMP had executed an absolute Sale Deed with respect to the said property in favour of said Smt.Indira Bai. Taking the benefit of ill-health of said Smt.Indira Bai, the defendant got a Gift Deed executed by her by practicing fraud and undue influence upon her. As such, in the property in which the plaintiff has got a legitimate share, was deprived by the clandestine act of the defendant. Challenging which and claiming his share, the plaintiff had instituted a suit. 3. The defendant in the Court below entered appearance and contested the matter by filing the written statement. In her written statement, she has denied all plaint averments, except the blood relationship with the plaintiff and their parents. She specifically contended that by virtue of the Gift Deed dated 6.6.2013, she has become the absolute owner of the property. 4. Based on the pleadings of the parties, the trial Court framed the following issues : (1) Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and defendant? She specifically contended that by virtue of the Gift Deed dated 6.6.2013, she has become the absolute owner of the property. 4. Based on the pleadings of the parties, the trial Court framed the following issues : (1) Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and defendant? (2) Whether the plaintiff further proves that the suit schedule property was allotted to his father late M.Rajappa? (3) Whether the plaintiff further proves that the sale deed executed in favour of Smt.Indira Bai as a senior member of the family? (4) Whether the plaintiff proves that the gift deed dated 06/06/2013 is a created document by the defendant? (5) Whether the defendant proves that on 08/09/2004 partition is effected and the suit property was allotted to this defendant and two sites were allotted to the plaintiff? (6) Whether the plaintiff is entitled for the relief sought for? (7) What decree or order? The plaintiff got himself examined as PW-1 and got marked documents from Exs.P-1 to P-8. The defendant neither led any evidence nor marked any documents as exhibits. By its impugned judgment dated 28.6.2018, the trial Court decreed the suit with cost. Challenging which, the defendant has preferred this appeal. 5. The main contention of the appellant/defendant in her memorandum of appeal is that the defendant was not given a fair opportunity to cross-examine PW-1 and also to lead evidence from her side. 6. Though this matter has come up for admission, however, with the consent from both side, the matter is taken up for its final disposal. 7. Heard the learned counsel from both side and perused the memorandum of appeal and impugned judgment. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. The learned counsel for the appellant in his arguments while drawing the attention of this Court to Paragraph-10 of memorandum of appeal contended that the suit was posted for further evidence on the plaintiff's side on 1.2.2018, however, for the cross-examination of PW-1, couple of adjournments were granted. 9. The learned counsel for the appellant in his arguments while drawing the attention of this Court to Paragraph-10 of memorandum of appeal contended that the suit was posted for further evidence on the plaintiff's side on 1.2.2018, however, for the cross-examination of PW-1, couple of adjournments were granted. The trial Court showing very hasty in the matter and without acceding to the request of the defendant to accommodate with a short adjournment for the cross-examination of PW-1, took the cross-examination of PW-1 from the defendant's side as 'Nil' and deprived a fair opportunity for the defendant to lead her evidence and in a hasty manner and within a span of nine days, proceeded to pronounce the judgment under appeal. 10. Learned counsel for the respondent in his arguments submitted that several and fair opportunities were given to the parties, more particularly, to the defendant not only to cross-examine PW-1, but also, to lead evidence from her side. However, the defendant did not make use of the opportunities given to her, but, contending alleged denial of fair opportunity to her, has preferred this appeal. 11. After making certain submission, in response to the submission made by the learned counsel for the appellant, learned counsel for the respondent submits that in case if the Court comes to the conclusion that the matter requires to be remanded for giving opportunity to the defendant to lead evidence, then, a time frame be fixed for the early disposal of the matter and compensating the present respondent with some cost payable by the appellant also be considered. 12. After going through the material placed before the Court, I see that the original suit was posted for further evidence of the plaintiff on 1.2.2018. Based on the submission made from the plaintiff's side, the examination-in-chief of the plaintiff was taken as closed and accordingly, the matter was posted on 4.4.2018 for the cross-examination of PW-1. However, on the said date, the cross-examination was not conducted and the matter was adjourned to 31.5.2018 for the same purpose. On 31.5.2018, at the request of learned counsel for the defendant, an adjournment was granted, posting the matter to 19.6.2018. According to the learned counsel for the appellant (defendant in the Court below), the said date of 19.6.2018 was not recorded properly in the diary by the learned counsel. On 31.5.2018, at the request of learned counsel for the defendant, an adjournment was granted, posting the matter to 19.6.2018. According to the learned counsel for the appellant (defendant in the Court below), the said date of 19.6.2018 was not recorded properly in the diary by the learned counsel. As such, taking notice of the absence of the learned counsel for the defendant on 19.6.2018, the trial Court treated the cross-examination of PW-1 as 'Nil' and posted the matter for the defendant's evidence on 22.6.2018. On the very same day, without giving any further opportunity to the defendant, noticing the absence of the defendant in the Court, the evidence on the defendant's side was also taken as 'Nil' and the matter was posted for arguments within three days thereafter i.e., on 25.6.2018. The trial Court thereafter proceeded to pronounce the judgment on 28.6.2018. 13. Thus, from the above chronology of events, it is clear that within nine days from posting the matter for the cross-examination of PW-1, the trial Court completed the proceedings just by granting only one opportunity for the defendant to lead her evidence, which single opportunity, was not utilised by the defendant on 22.6.2018. Thus, considering the fact that the original suit was of the year 2015 and the suit was for a partition and also the parties to the litigation are brother and sister inter se, I am of the view that winding up of the entire process of adjudication within nine days denying any further adjournment in the matter for cross-examination of PW-1 and also not giving sufficient opportunity for the defendant to lead her evidence has resulted in violation of natural justice. 14. As such, without going into the merits of the case, since evidence placed on record at this stage appears to be incomplete and insufficient to adjudicate the matter based on the contentions taken up by the parties on its merits, the impugned judgment deserves to be set aside and the matter deserves to be remanded to the trial Court with a direction to proceed further in the matter from the stage of the cross-examination of PW-1 at which it had stopped on 4.4.2018 and to give a reasonable opportunity to both side and to adjudicate the matter in accordance with law. However, the inconvenience for which the plaintiff is put to in the process also cannot be ignored. However, the inconvenience for which the plaintiff is put to in the process also cannot be ignored. As such, remanding the matter would be on a cost payable by the present appellant (defendant) to compensate the inconvenience caused to the plaintiff. Further considering the nature of the litigation and that the matter has almost reached finality, which is at the stage of recording of the evidence, which was half way through, the trial Court is also to be directed to dispose of the matter at the earliest. Accordingly, I proceed to pass the following order : ORDER The Appeal is allowed in part with a cost of Rs.5,000/- payable by the present appellant (defendant) to the plaintiff in the trial Court before the matter could be proceeded by the trial Court. The judgment and decree dated 28.6.2018, passed by the learned V Addl.City Civil Judge (CCH-13), Bengaluru City, in O.S.No.2049/2015, is set aside. The matter is remanded to the trial Court with a direction to dispose of the matter afresh in accordance with law and from the stage of the cross-examination of PW-1. In order to ensure speedy disposal of the matter by the trial Court, both parties are directed to appear before the trial Court without anticipating any fresh summons on them, on 24.06.2019 and participate in further proceeding without taking unnecessary adjournments. It is made clear that this judgment shall not be considered as a judgment on the merits of the contention of the parties. The Registry is directed to transmit a copy of this judgment to the trial Court immediately.