IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26TH DAY OF OCTOBER 2010 BEFORE ' THE HON'BLE MR. EUSTICE ANAND _ REGULAR SECOND APPEAL NO. 15_24"().I}7"_?:OG.9_'* _ .E E BETWEEN: Venkatarayappa, S/O Thimmaiah @ Ramaiah, Major, _ R/O Kullakunte Village,' Yalagere Post, Kasaba Hobli, . = _ «V " Chikkaba1lapu;:Tal}j'k mid Dis.t~i'ict, ____ ...APPELLANT (By ASE: E E' V _ " A. X/Véinkgtappa, 2. ..A'E'a1.aEE0ndrayappa SlO"Ava1appa, Major, ' -- S. Chandramma W/O Avalakondarayappa, MajOr 'V "disposal';"i ~ . p_ All are residing at Kullakunte village, Yalagere Post, Kasaba Hobli, Chikkaballapur Taluk, Chikkaballapur District-562 10E. . . .RES (Respondents No.1 to 3 are served but unrepresented) V xix
This appeal is filed under secfioa~,.i00 Code o,ri”cilvi1,
Procedure, 1908 against the_Iju_dgrnen.t ‘and,_ dated
£9.09.2009 passed in R.A.No.46/2006 on the -file’ of the Presiding
Officer, Fast Track Court, Chi.ck’oal:lapur, disrnissing the appeal
filed against judgment and _de_cre_e. da.t’e.d’?.0.06.200l passed in
O.S.No.257/I996 on the fileiof the7§?rin_<;i"pa_i~.Ci§gil Judge (Jr.Dn) &
JMFC, Chiokballapur. . l
TghisqapppealieorriinjgAdmission this day, the Court
delivered the ifojll_owi'ng; _: " _'
1. The for admission is considered for final
Vil.ha”Ving been ordered to the respondents, the
V . respondelntsrare served, but there is no representation on behalf of
, ., ‘ ~ the r_espo”ndents.
3. The appellant was the plaintiff before the trial Court in a
suit for declaration of his possession having perfected his title by
adverse possession and for injunction against the respo.ride_nt.s. it
is stated by the learned counsel for the appellant
Court had initially granted an order”of-temporary*iI.inju11cjtioi2.. ;
favour of the appellant, which was
by the respondents. The said appeal halving: beeniiiconsiidered
the lower appellate Couift;’t.the the triialCourt had been
called for in the year evidence had not
commencedéofv 4te;%:dieir’ed*.by_ the.:_plaintii’f”‘bef’ore the trial Court.
Therea’fter’–the had disposed of the appeal holding
that the orderiof sta~t_us’~:qiuoii~~granted in favour of the appellant shall
‘~ _ c0f:1_:t’:iiE111_p_*.”«.V:til.1_ the diisp-osal of the suit. It transpires that the records
were the trial Court in the year 2001. However, the
cot14nsel,.f7o:r”:*.the appellant and the appellant remained blissfully
unaware :of the return of the record and had allowed the suit to
if vlattgijiish by default and it is in that background that the trial Court
if “had considered the suit on merits and had held that neither the
plaintiff nor the defendant had tendered evidence and therefore, no
case was made out and the suit was summarily dismissed. That
having been challenged in an appeal, after a lapse of the
appeal was rejected on the ground of de1ay.–:fr’
unfortunate background, that the appellant ‘before COt.tI”t,
4. Having regard to the fact that the iap_peElant_~v_,has 11eveir’~~hleen
in a position to tender evidencle’s«,.1,:l3fefore the_l_trialf and the
contention that the appe~Elant_’iihad remai.ned unaware of the
proceedings for want of coni1:1uni.cation*between his counsel and
himse1f’iandthat_Vthel’f,appea.l,:’h’alsohaving been belatedly filed has
resulted ling the ‘having taken a strict view of the
conduct of the a-ppelllantlin negating his case. There is miscarriage
V:of.j_:istic:e,ianld=that the appellant continues to be in possession of
th_e”i.1and” therefore, there has to be a determination of his
_q claim. this view of the matter, since the appellant’s case has
ljvnotiibeenll considered on merits, in that, the appellant has never
‘ tendered evidence before the trial Court or before the lower
appellate Court, the appellant may be permitted to reagitate the
matter and establish his case on merits.
5. Accordingly, the appeal is allowed. The order by
the lower appellate Court rejecting the appeal on
delay and the judgment and decree of the__trial-‘Cour§jare”»set.Vasioe’.»
The matter is remanded to the trial C’ourt?.:fo’1’V a ii*e_s’l:..corisiée.rati:on
with liberty to both the parties lto._ten_der e’vidence”.arié.: ‘thereafter to
*alb/–.