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2019 DIGILAW 1992 (KAR)

Prema v. N. Lakshmi

2019-09-11

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. This is a defendants' appeal. The present respondent arraigning the present appellants as defendants in the Court of the XIX Additional City Civil and Sessions Judge at Bangalore City; (CCH.18) (hereinafter for brevity referred to as the "Trial Court") had instituted a suit in O.S.No.9177/2014 for the relief of permanent injunction. However, during the pendency of the suit, by carrying out the amendment in the plaint, the suit was also got converted into one for mandatory injunction. The Trial Court by its impugned judgment and decree dated 30-10-2017 decreed the suit in favour of the plaintiff. Challenging the same, the defendants have preferred this appeal. 2. The summary of the case of the plaintiff in the Trial Court was that, she is the owner in possession of a dwelling house bearing No.139 in Sy.No.119 of Laggere, Bangalore, consisting of two squares RCC building and the said property was purchased by her under a registered Sale Deed dated 07-11-2014. The Bruhat Bengaluru Mahanagara Palike (hereinafter for brevity referred to as "BBMP") records and khata have been effected in her name. The defendants without having any right, title or interest, started encroaching the Northern side of the plaintiff's suit schedule property, depriving the plaintiff of light and air to her property. In that regard, the plaintiff issued a notice to the defendants and also informed the BBMP authorities. However, since no remedial action was taken in that regard, the plaintiff was constrained to institute a suit against the defendants. Originally the relief that was sought for in the suit was for a permanent injunction seeking restraining the defendants from putting up further unauthorised construction over the suit schedule property by encroaching the Northern side of the plaintiff's suit schedule property. During the pendency of the suit, the plaintiff alleging that the defendants have put up unauthorised construction on the Northern side of the suit schedule property, sought for the relief of mandatory injunction also seeking a direction to the defendants to remove the said unauthorised construction/structure which was on the Northern side wall or to demolish the said structure. 3. During the pendency of the suit, the plaintiff alleging that the defendants have put up unauthorised construction on the Northern side of the suit schedule property, sought for the relief of mandatory injunction also seeking a direction to the defendants to remove the said unauthorised construction/structure which was on the Northern side wall or to demolish the said structure. 3. In response to the notice, the defendants appeared through their counsel and filed their Written Statement, wherein the defendants contended that they had purchased the site bearing No.139/A situated at Laggere, Bangalore North Taluk, Yeshwanthapur Hobli with the property assessment Nos.119 and 120 under Dasarahalli Municipal Ward No.28 under a registered Sale Deed dated 23-06-2010. They denied that they have ever encroached any part of the plaintiff's property. On the other hand, they contended that the plaintiff had constructed the building without leaving any set back and by violating the bye-laws of the Municipal Act. However, the defendants admitted that their site is adjacent to that of the suit schedule property of the plaintiff. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:- "1 Whether plaintiff proves that she is in lawful possession and enjoyment of suit schedule property within given boundaries as on the date of suit? 2. Whether plaintiff proves the alleged interference from defendants? 3. Whether plaintiff is entitled for the relief of permanent injunction as prayed in the plaint? 4. What order or decree?" 5. In her support, the plaintiff got examined her husband - Sri.P. Naveendran, who was her Special Power of Attorney holder as PW-1 and got marked documents from Exs.P-1 to P-11. Neither any witnesses were examined nor any documents were marked from the defendants' side. 6. The Trial Court by its impugned judgment and decree dated 30-10-2017, answering all the issues in the affirmative, decreed the suit of the plaintiff and granted the relief of both permanent injunction as well mandatory injunction as prayed for by the plaintiff. It is against the said judgment and decree, the defendants have preferred this appeal. 7. In spite of service of notice in this appeal, the respondent/plaintiff has remained absent. 8. The Lower Court records were called for and the same are placed before this Court. 9. It is against the said judgment and decree, the defendants have preferred this appeal. 7. In spite of service of notice in this appeal, the respondent/plaintiff has remained absent. 8. The Lower Court records were called for and the same are placed before this Court. 9. Heard the arguments of the learned counsel for appellants/defendants and perused the material placed before this Court including the memorandum of appeal and the impugned judgment. 10. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 11. Learned counsel for the appellants/defendants in his brief argument submitted that the defendants were not given a reasonable opportunity in the Trial Court and that the Court below did not follow the correct procedure in the disposal of the matter, as such, the matter be remanded with a liberty to the defendants to lead their evidence in the best interest of justice. 12. After hearing the argument of the learned counsel for the appellants/defendants and going through the materials placed before the Court, the only point that arise for my consideration in this appeal is:- Whether the judgment and decree under appeal warrants any interference at the hands of this Court? 13. It is not in dispute that the suit schedule property and the property bearing No.139/A said to be belonging to the defendants are adjoining properties. According to the plaintiff, on the Northern side of her property, the defendants have encroached by putting up construction, as such, it can be inferred that the defendants' property lies on the Northern side of the plaintiff's suit schedule property. 14. Pw-1 who claims to be the husband of the plaintiff as well the Special Power of Attorney has reiterated the plaint averments even in his Affidavit evidence also. In support of his contention, he got the Special Power of Attorney executed in his favour marked as Ex.P-11 and the original Sale Deed dated 07-11-2014 with respect to the suit schedule property and standing in the name of the plaintiff marked at Ex.P-1. He has also marked a letter written by the plaintiff to the then Karnataka Electricity Board authorities and dated 13-11-2014 at Ex.P-2 and eight photographs said to be of the alleged construction on the suit schedule property at Exs.P-3 to P-10. 15. He has also marked a letter written by the plaintiff to the then Karnataka Electricity Board authorities and dated 13-11-2014 at Ex.P-2 and eight photographs said to be of the alleged construction on the suit schedule property at Exs.P-3 to P-10. 15. The defendants, except filing their Written Statement did not choose to either cross-examine PW-1 or to lead evidence from their side. As such, the entire evidence of PW-1 has remained uncontroverted. 16. A perusal of the evidence of PW-1 would go to show that, his statement that the defendants have encroached one foot of his land from the Northern side and have put up construction has remained undenied and undisputed. He has also produced eight colour photographs alleging that they depict the alleged encroached construction of the building by the defendants. As already observed above, the said evidence of PW-1 was not denied or disputed from the defendants' side. Still, a perusal of the order sheet maintained by the Trial Court would reveal that PW-1 had already led his evidence in Examination-in-chief before the plaintiff filed an application under Order VI Rule 7 of the Code of Civil Procedure,1908 seeking amendment of the plaint. After the said application came to be allowed and the plaintiff was permitted to lead her further evidence as such, she further examined PW-1 in-chief subsequent to the amendment of the plaint. The said exercise has taken place in the Trial Court before 11-08-2017. It is thereafter taking the defendants' evidence as 'nil', the matter was posted for argument and then for pronouncement of judgment. After about three adjournments at the stage of judgment, finally on 27-10-2017, the Trial Court has observed that after permitting the plaintiff to carry out amendment and after the plaintiff carried out the amendment, no opportunity was given to the defendants to file their additional Written Statement, if any. Therefore, on 27-10-2017, the Trial Court did not pronounce the judgment though it was slated for judgment. On the other hand, it posted the matter for filing the additional Written Statement of the defendants and fixed the date for the same on 28-10-2017. On the said date, observing that the defendants have not filed their additional Written Statement and considering by itself that there was no need to reopen the case, posted the matter for judgment on 30-10-2017 and accordingly, pronounced the impugned judgment on the said date. 17. On the said date, observing that the defendants have not filed their additional Written Statement and considering by itself that there was no need to reopen the case, posted the matter for judgment on 30-10-2017 and accordingly, pronounced the impugned judgment on the said date. 17. In the said process, what is to be noticed is that, the Trial Court which was required to give an opportunity to the defendants to file their additional Written Statement, if any, immediately after the plaintiff had filed her amended plaint, has failed to do it. On the other hand, it allowed the plaintiff to lead her further evidence and to mark documents. When the matter was slated for judgment, the Trial Court by itself noticing the lapse, reverted the matter back to the stage of filing the Additional Written Statement. However, by that time, it should have restored the matter at the stage where the original suit was required to be, immediately after carrying out of the amendment to the plaint. On the contrary, the Trial Court only for name-sake, gave a day's accommodation to the defendants from 27-10-2017 to 28-10-2017 and on the said day, i.e. on 28-10-2017, it closed the matter without even hearing the arguments from the defendants' side on the main. 18. Thus, I am of the view that the Trial Court has not given sufficient opportunity to the defendants to put forth their case, rather shown its hurriedness in delivering its judgment in the matter. 19. As such, without going into the merits of the impugned judgment, suffice it to say that since the defendants were deprived of a reasonable and fair opportunity to plead their case in the Trial Court, interest of justice warrants setting aside of the impugned judgment and remanding the matter to give a reasonable opportunity to the defendants to put forth their case. Accordingly, I proceed to pass the following: ORDER [i] The appeal is allowed; [ii] The impugned judgment and decree dated 30-10-2017 passed by the Court of XIX Additional City Civil and Sessions Judge at Bangalore City; (CCH.18), in O.S.No.9177/2014 is hereby set aside; [iii] The matter is remanded to the Trial Court with a direction to it to give a reasonable opportunity to the defendants to file their Additional Written Statement, if any, and to lead their evidence and to decide the matter afresh in accordance with law; [iv] It is made clear that in view of the fact that the Original Suit is of the year 2014, the parties to the litigation shall proceed with the matter in the Trial Court without taking any unnecessary adjournments; [v] The appellants who are present today to appear before the Trial Court without anticipating any fresh notice or summons from it, on 14-10-2019 at 11:00 a.m.; [v] There is no order as to costs. Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court immediately. In view of disposal of the appeal, the pending interlocutory application I.A.No.1/2017 does not survive for consideration and stands disposed of as having become infructuous.