IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON’BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON’BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO.2104/2006 (RES)
BETWEEN:
- SRI VOKKALIGARA KALAPPA
S/O LATE SRI KALAIAH
SINCE DECD BY HIS LRS
1(A). SMT V K PONNAMMA
WIDOW OF LATE SRI VOKKALIGARA KALAPPA
(DECEASED DURING DECEMBER 2005)
1(B). SMT V K RATNA
D/O LATE SRI VOKKALIGARA KALAPPA
W/O SRI D P DAMODHAR
AGED ABOUT 48 YRS
REP BY HER GPA HOLDER SRI D P DAMODHAR
S/O LATE SRI PUTTEGOWDA
AGED ABOUT 55 YEARS
R/A BETTAGERI VILLAGE
AMATHI NAD,VIRAJPET TALUK
KODAGU DISTRICT
KARNATAKA STATE
…APPELLANTS
(BY SRI. P.B. ACHAPPA., ADVOCATE)
AND:
- SMT PARVATHAMMA
W/O LATE SRI ANANTHASWAMY GOWDA
SINCE DECD BY HER LRS
1(A). SRI H A RAMACHANDRA
S/O LATE SRI ANANTHASWAMY GOWDA
(SINCE DECD DURING 1998)
REP BY SMT SULOCHANA RAMACHANDRA
WIDOW OF LATE H A RAMACHANDRA
R/A NO.9, KING STREET
RICHMOND TOWN
BANGALORE-25
KARNATAKA STATE
1(B). SRI H A INDRESH
S/O LATE SRI ANANTHASWAMY GOWDA
AGED ABOUT 52 YEARS
NO.10, JEWELRY STREET
SHIVAJINAGAR
BANGALORE-1
KARNATAKA STATE
1(C). SRI H A JAGADEESH
S/O LATE SRI ANANTHASWAMY GOWDA
AGED ABOUT 48 YEARS
R/A C/O MR K C VERGESE
36, JEP MAIN ROAD
4TH BLOCK WEST
JAYANAGAR
BANGALORE-560 011
KARNATAKA STATE
1(D). DR. ANJALI VINCENT
D/O LATE H.A RAMACHANDRA
R/AT NO.26, KING STREET
RICHMOND TOWN
BANGALORE-25
…RESPONDENTS
(BY SRI SHASHANK KUMAR., ADVOCATE FOR R1(A TO D))
THIS REGULAR FIRST APPEAL FILED U/S 96 OF CPC PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DATED.13.02.2006 PASSED IN F.D.P. NO.1/1994 IN O.S. NO.67/1980 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) VIRAJPET, KODAGU DISTRICT.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING THIS DAY, K.S. MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT AND ORDER ON I.A.NO.1/2023
Heard both side.
2. Under the above application, the appellants are seeking leave to withdraw the appeal unconditionally. The same is seriously opposed by the other side.
3. The original respondent Parvathamma filed O.S. No.67/1980 before the Senior Civil Judge (Sr.Dn), Virajpet against Vokkaligara Kalappa her step brother for partition. The suit was decreed, granting her ½ share. He challenged that judgement before this Court in RFA No.182/1986 which also came to be dismissed. He took up the matter before the Hon’ble Supreme Court in Civil Appeal No.7351/1995. The Hon’ble Supreme Court on the consent of the parties by the judgment dated 03.09.1996 recorded that plaintiff shall be entitled to 1/4th share in the suit schedule properties.
4. The Hon’ble Supreme Court formulated 4 points, which are extracted in order dated 17.08.2023 and directed the trial Court to decide those points. The Hon’ble Supreme Court further recorded that since the matter was more than 16 years, the parties have agreed that the determination made by the trial Court on questions formulated by it shall not be questioned by way of an appeal or revision by any of the parties. After such remand, the matter was again prolonged before the trial Court up to 2006.
5. Ultimately, the trial Court accepting the Commissioner’s report which was unopposed by the defendants passed the impugned judgment and order on 13.02.2006. Despite the order of the Hon’ble Supreme Court not to challenge the order of the trial Court, the appellants who are the heirs of Kalappa, challenged the same in the above appeal and dragged it for 17 years. Under such circumstances, respondents were forced to file connected contempt proceeding in Crl. CCC No.6/2014. After adopting all tactics in the contempt petition when the said case is listed for framing charges, the appellants have come up with the above application.
6. It is contended in the affidavit that the respondents have sold the property allotted to their share to one K.C Nanaiah and his son, to clear the problem which the appellants were facing in accessing the adjacent properties, they got exchanged those properties with the purchaser K.C Nanaiah and his son, therefore this appeal does not survive. They want withdrawal of the appeal unconditionally.
7. Learned Counsel for the respondents opposes blanket withdrawal of the appeal on the ground that the respondents and their mother struggled for 43 years to get their legitimate shares and they were not able to enjoy fruits of the decree, as they could not afford litigation expenses they sold the properties acquired under decree. He further submits that the appellants did not show scant regard to the Hon’ble Supreme Court’s order. The appeal is being withdrawn only to overcome the contempt proceedings, the appellants have not even paid the mesne profits. Therefore the appeal cannot be permitted to be withdrawn unconditionally. According to him the appellants have to pay cost of Rs.55,00,000/- towards mesne profits and Rs.25,00,000/- as compensation to the respondents.
8. Contrary to the judgment of the Hon’ble Supreme Court which was passed on their own consent, the appellants and their predecessors have diverted the resources of not only the respondents but also of the Courts. It is submitted that in view of the appellants and their Counsel, the respondents could not proceed with their Execution case No.44/2007. It is apparent that the respondents have faced lot of distress. Therefore they could not even continue C.P.No.105/2015 which was filed seeking transfer of the Execution No.44/2007 from the Senior Civil Judge (Sr. Dn), Virajpet to any Civil Courts of Bengaluru or Mysuru.
9. Learned Counsel for the appellants submits that the matter was delayed because of settlement negotiations between the parties. Learned Counsel for the respondents submits that there was no such talk of settlement with the appellants, as against that appellants were trying to settle the matter with the purchaser. Therefore that is not a ground to show any indulgence.
10. The above facts and circumstances clearly depict how the respondents are being persecuted since about 43 years by the appellants and their predecessor. Under the circumstances, it is a fit case to permit withdrawal of the appeal on payment of cost of Rs.2.5 Lakhs payable to the respondents. Learned Counsel for the appellants seeks some time to deposit the costs. Out of Rs.2.5 lakhs, the appellants shall deposit Rs.1 Lakh before this Court within two weeks from the date of this order and balance amount of Rs.1.5 lakhs within next two weeks.
11. The impugned order shows that the trial Court on accepting the Commissioner’s report has not given further dates for determination of the mesne profits or payment of the same. It is submitted that subsequently certain applications were filed and they were disposed of.
12. From the above it is clear that, some directions of the judgment of the Hon’ble Supreme Court in Civil Appeal No.7351/1995 are not yet complied. Therefore, FDP No.1/1994 pending on the file of the Civil Judge (Sr.Dn), Virajpet is hereby restored to the file. Further the same is withdrawn from the Court of Civil Judge (Sr. Dn), Virajpet and transferred to the Court of the Principal Senior Civil Judge, Mysuru for further compliance of the other directions of the Hon’ble Supreme Court referred to above.
13. The parties shall appear before the Principal Senior Civil Judge, Mysuru on 25.09.2023 at 11.00 a.m. without any further notice. The said Court shall afford both the parties reasonable opportunity of hearing and dispose of the matter as expeditiously as possible at any rate within six months from the date of appearance of the parties.
Registry shall return the trial Court records to the trial Court forthwith. Soon after the receipt of the records, the trial Court shall transmit them to the transferee Court.
Sd/-
JUDGE
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JUDGE