The High Court
Case Details
- 1 - NC: 2025:KHC:9862 RSA No. 335 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 335 OF 2015 (DEC/INJ) BETWEEN: 1. M D MUSTAQ S/O M.D. AMEER, AGED ABOUT 62 YEARS, PROPRIETOR: WELCOME GARAGE, MEDIHALLY ROAD, CHITRADURGA CITY-577 501 SINCE DECEASED BY HIS LRs 1(a) MUSHTAQI BEGUM W/O LATE MD. MUSTAQ AGED ABOUT 63 YEARS, 1(b) MUSRATH BEGUM, W/O NAZAR HUSSAIN, AGED ABOUT 35 YEARS, 1(c) 1(d) MOHAMMED MURDASSI, S/O LATE MD. MUSTAQ, AGED ABOUT 33 YEARS, MOHAMMED MAQSOOD, S/O LATE MD. MUSTAQ AGED ABOUT 28 YEARS, ALL ARE R/AT 3RD CROSS, IDGA MOHALLA, MEDIHALLY ROAD, CHITRADURGA - 577 501. Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka CAUSE TITLE AMENDED AS PER COURT ORDER DATED 08.10.2021
Legal Reasoning
[BY SRI. JAYAPRAKASH R.V., ADVOCATE (PH)] …APPELLANTS - 2 - NC: 2025:KHC:9862 RSA No. 335 of 2015 AND: 1. SHAMSUDDIN S/O ABDUL JABBAR, AGED ABOUT 49 YEARS, 2. MOINJUDDIN, S/O ABDUL JABBAR, AGED ABOUT 47 YEARS, 3. HASEEN S/O ABDUL JABBAR, AGED ABOUT 27 YEARS, 4. BADDRUZAMAN S/O ABDUL JABBAR, AGED ABOUT 30 YEARS, 5. NAJMUZZAMA D/O ABDUL JABBAR, AGED ABOUT 49 YEARS, 6. RAHIN S/O ABDUL JABBAR, AGED ABOUT 48 YEARS, 7. MUBEEN S/O ABDUL JABBAR, AGED ABOUT 45 YEARS, 8. TAHASEEN S/O ABDUL JABBAR, AGED ABOUT 43 YEARS, 9. MOHASEEN S/O ABDUL JABBAR, AGED ABOUT 40 YEARS, RESPONDENTS NO.1 TO 9 ARE R/A HASEN MANZIL AND WORKING AT MUBEEN WELDING WORK, MEDEHALLY ROAD, CHITRADURGA CITY-577 501. 10. B.C. KUBERAPPA S/O D. BASAPPA, PROP: ESWAR BAMBOO DEPOT, - 3 - NC: 2025:KHC:9862 RSA No. 335 of 2015 MEDEHALLY ROAD, CHITRADURGA CITY-577 501. (R1 TO R9 - SERVICE HELD SUFFICIENT; R10 - DEAD) …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.11.2014 PASSED IN R.A NO.12/2014 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.11.2013 PASSED IN O.S.NO.281/1999 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC., CHITRADURGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Heard Sri R.V.Jayaprakash, learned counsel for appellant. Respondents are served and unrepresented. 2. In view of nature of substantial question of law on which appeal is admitted and to be answered in affirmative would entail remand, facts are stated in brief. 3. Challenging judgment and decree dated 10.11.2014 passed by I Additional Senior Civil Judge, Chitradurga, in R.A.no.12/2014 confirming judgment and decree dated - 4 - NC: 2025:KHC:9862 RSA No. 335 of 2015 28.11.2013 passed by II Additional Civil Judge & JMFC, Chitradurga, in O.S.no.281/1999, this appeal is filed. 4. Sri R.V.Jayaprakash, learned counsel for appellant submitted that this is plaintiff's second appeal in a suit for declaration, mandatory injunction and possession. Trial Court dismissed suit and R.A.no.12/2014 was filed assailing same. On completion of service of notice, matter was posted for arguments on 23.10.2014. On that day, there was no representation either side and same was noted by first appellate Court. However, by taking arguments as nil, impugned judgment and decree was passed on next date of hearing, which would be in violation of procedure mandated under Order XLI Rule 17 of CPC and also ratio laid down by Hon'ble Supreme Court in Ghanshyam Dass Gupta v. Makhan Lal reported in (2012) 8 SCC 745. 5. It was submitted, since impugned judgment and decree passed by first appellate Court on merits would be contrary to law, substantial question of law as framed would arise for consideration and requires to be answered in favour of appellant by following ratio in Ghanshyam case supra. - 5 - NC: 2025:KHC:9862 RSA No. 335 of 2015 6. In view of above submissions and as respondents are served and unrepresented, matter is taken up for disposal. 7. Based on contentions, first appellate Court in R.A.no.12/2014 framed following points for consideration: 1) Whether the judgment and decree of the Trial Court is illegal and not based upon the evidence on record? 2) Whether the Plaintiff/Appellant established that he has title and alleged suit property? encroachment over 3) Whether the judgment and decree of the above need to be set-aside and suit be decreed? 4) What order? 8. Aggrieved, plaintiff is in appeal questioning judgment and decree of first appellate Court on procedure. Perusal of ordersheet of first appellate Court reveals trial Court records were secured and put up before it on 10.06.2014. Thereafter, matter was being adjourned at request of appellants. Ordersheet dated 23.10.2014 would read as follows: "No representation by both sides. Hence, arguments taken as not submitted. For judgment by 10.11.2014." - 6 - NC: 2025:KHC:9862 RSA No. 335 of 2015 And on said date, appeal was dismissed on merits. 9. This appeal is admitted to consider following substantial question of law: "Whether first appellate Court erred in disposing of appeal on merits without hearing learned counsel for appellant by erroneously observing in Para 12 of impugned judgment that arguments were heard?" 10. Order XLI Rule 17 of CPC with explanation read as follows: "17. Dismissal of appeal for appellant's default. __(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. [Explanation.--Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.] (2) Hearing appeal ex parte.__Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." 11. Hon'ble Supreme Court in Ghanshyam case (supra) has held, in view of explanation to Order XLI Rule 17 of CPC in case of non-appearance of learned counsel for appellant, - 7 - NC: 2025:KHC:9862 RSA No. 335 of 2015 recourse would be dismiss appeal for default and first appellate Court shall not decide on merits. Explanation to Order XLI Rule 17 and ratio laid down in above cited case would squarely apply to instant case. Therefore, above substantial question of law is required to be answered in affirmative. Consequently, following:
Decision
ORDER (i) Appeal is allowed in part; (ii) Impugned judgment and decree dated 10.11.2014 passed by I Additional Senior Civil Judge, Chitradurga, in R.A.no.12/2014 is set-aside; (iii) R.A.no.12/2014 is restored to file of I Additional Senior Civil Judge, Chitradurga; (iv) Since appeal is of year 2014 and appellant is represented, he is directed to appear before first appellate Court, without awaiting fresh notice, on 09.06.2025; (v) First appellate Court shall issue notice to respondents and on completion service, endeavour to dispose of appeal on merits by providing - 8 - NC: 2025:KHC:9862 RSA No. 335 of 2015 opportunity as required, within an outer limit of four months; (vi) Registry is directed to draw decree and transmit records to first appellate Court well before 09.06.2025. It is clarified that all contentions of both parties are kept open on merits and first appellate Court shall remain uninfluenced by observations made in impugned judgment set-aside herein. Sd/- (RAVI V HOSMANI) JUDGE AV List No.: 1 Sl No.: 40