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2022 DIGILAW 714 (KAR)

James E Devid v. K. D. Shameem Banu

2022-06-06

S.R.KRISHNA KUMAR

body2022
JUDGMENT 1. This appeal by the defendant in O.S.No.862/2020 on the file of XX Additional City Civil and Sessions Judge, Bengaluru City, is directed against the impugned judgment and decree dtd. 22/12/2021 whereby, the said suit for ejectment / eviction and other reliefs in respect of the suit schedule immovable property was decreed by the trial court in favour of the respondent - plaintiff against the appellant - defendant. 2. During the pendency of the appeal, one Shri Sameer Gaffar Khan has filed an application in IA No.2/2022 seeking his impleadment as appellant No.2 to the present appeal. The impleading applicant has also filed I.A.3/2022 to I.A.5/2022 seeking various reliefs. 3. Heard learned counsel for the appellant and learned counsel for the respondent and also the learned counsel appearing the impleading applicant and perused the material on record. 4. A perusal of the material on record including the impugned judgment and decree would indicate that the respondent -plaintiff instituted the aforesaid suit for eviction/ejectment of the appellant from the suit schedule premises and for other reliefs. The defendant having appeared before the trial court did not file his written statement or contest the suit. The plaintiff examined himself as PW-1 and documentary evidence at Exs.P1 to P10 were marked on his behalf. Accordingly, the trial court took into account the unimpeached pleadings and evidence of the plaintiff and decreed the suit in her favour, aggrieved by which, appellant - defendant is before this Court by way of the present appeal. 5. The specific contention urged by the appellant in the suit as well as before this Court is that due to bonafide reasons, unavoidable circumstances and sufficient cause in particular, on account of his health reasons which involved traveling out of Bengaluru, the appellant was not in a position to contact his advocate and give necessary instructions to defend and contest the suit. It is submitted that the appellant has a good defence to urge on merits in the suit and had/at the balance of convenience is in his favour. It is therefore contended that if one more opportunity is granted in favour of the appellant to contest the suit on merits and that the appellant is ready to abide by the terms and conditions to be fixed/imposed by this court. 6. It is therefore contended that if one more opportunity is granted in favour of the appellant to contest the suit on merits and that the appellant is ready to abide by the terms and conditions to be fixed/imposed by this court. 6. Per contra, learned counsel for the plaintiff submits that despite sufficient opportunity being granted in favour of the appellant-defendant, he did not chose to contest the suit and consequently, no indulgence is to be shown in his favour and the trial court was fully justified in decreeing the suit in favour of the respondent-plaintiff by passing the impugned judgment and decree which does not warrant interference of this Court in the present appeal. 7. As stated supra, IA No.2/2022 is filed by the applicant seeking impleadment in the appeal as appellant No.2 inter alia contending that the impleading applicant is none other than one of the children of the respondent-plaintiff and it is submitted that in addition to the current suit in O.S.No.862/2020 out of which the present appeal arises, there are other disputes in relation to the suit schedule property between the impleading applicant, his mother, i.e., the respondent herein and other siblings of the impleading applicant. The details of the said suits/cases are as under: i) O.S.No.6849/2019 and Misc. No.1019/2019 - on the file of CCH-11. ii) O.S.No.4232/2018 - on the file of CCH-53. iii) O.S.No.8507/2017 on the file of CCH-61. It is therefore submitted that the impleading applicant is a proper and necessary party to the present appeal and that the application in IA No.2/2022 deserves to be allowed and the impleading applicant is permitted to enter the array of parties as appellant No.2. 8. After having heard the learned counsel for the parties and upon perusal of the material on record, I am of the considered opinion that by adopting a justice oriented approach and for the purpose of enabling the appellant - defendant to put forth his defence and contest the suit on merits, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and proper to allow the appeal by setting aside the impugned judgment and decree and by remitting the matter back to the trial court for reconsideration afresh in accordance with law. 9. 9. So also, insofar as I.A.No.2/2022 for impleadment is concerned, it would be just and proper to dispose of the said application by reserving liberty in favour of the impleading applicant to put forth his claim before the trial court which would be considered in accordance with law after providing an opportunity to the other parties also. 10. Further, since the other litigations between the parties are pending as stated supra, liberty would also have to be reserved in favour of all the parties to seek transfer of all the cases to a single court by taking recourse to such remedies as available in law. 11. In the result, I pass the following:- ORDER 1) The appeal is hereby allowed. 2) The impugned judgment and decree dtd. 22/12/2021 passed in O.S.No.862/2020 by the XX Additional City Civil and Sessions Judge, Bengaluru City, is hereby set aside. 3) The matter is remitted back to the trial court for reconsideration afresh, in accordance with law. 4) The parties undertake to appear before the trial court on 27/6/2022 without awaiting further notice from the trial court, which is directed to dispose of the suit as expeditiously as possible and preferably within a period of six months commencing from 27/6/2022. 5) Liberty is reserved in favour of the impleading applicant in I.A.2/2022 to file necessary application (s) in the suit which shall be considered and disposed of by the trial court in accordance with law after providing an opportunity to the plaintiff and defendant and hearing them. 6) Liberty is also reserved in favour of all the parties to seek transfer of all the pending litigations including the instant O.S.No.862/2020 to a single court for disposal by taking recourse to such remedies as available in law.