- 1 - NC: 2025:KHC:12452 RFA No. 182 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 182 OF 2022 (POS-) BETWEEN: SRI RIZWAN ULLA BAIG SON OF AMEER HUSSAIN BAIG AGED ABOUT 46 YEARS, NO.21 CHANDININ CHOWK ROAD, SHIVAJINAGAR, BANGALORE- 560 001. …APPELLANT (BY SRI. MOHAMMED MUJASSIM AND ALLAH BAKASH.M, ADVOCATE) AND: 1. SMT SABIHA SULTHANA @ PARVEEN BEGUM WIFE OF T.M.SHUJATH ALI BAIG AGED ABOUT 53 YEARS, REPRESENTED BY HER GPA HOLDER T.M. SHUJATH ALI BAIG, SON OF MURUTUZA ALI BAIG, AGED ABOUT 63 YEARS, R/AT NO.25, 1ST FLOOR, 1ST CROSS, SOMESHWARA NAGAR, JAYANAGAR, 1ST BLOCK, BANGALORE- 560 011 2. SRI A.K. KOUSER SON OF ANWAR MAJOR Digitally signed by NANDINI D Location: High Court of Karnataka - 2 - NC: 2025:KHC:12452 RFA No. 182 of 2022 R/AT NO.21, CHANDINI CHOWK ROAD, SHIVAJINAGAR, BANGALORE- 560 001 …RESPONDENTS (BY SRI. VENKATACHALAPATHI .S.K., ADVOCATE FOR R-1 R-2 SERVED BUT UNREPRESENTED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 30.10.2021 PASSED IN OS.No.3014/2017 ON THE FILE OF THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR POSSESSION.INTIMECF INSUFFICIENTI.A.1/22 FOR STAYI.A.1/22 FILED U/O XLI RULE 5 R/W SEC.151 OF CPC, PRAYING TO STAY THE OPERATION OF THE JUDGMENT AND DECREE DATED 30.10.2021 AND ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL/CAV JUDGMENT This appeal by the 1st defendant in O.S.No.3014/2017 is directed against the impugned judgment and decree dated 30.10.2021 passed by the LII Additional City Civil and Sessions Judge, Bengaluru (CCH-53) (for short “the Trial Court”), whereby the said suit for declaration of title and recovery of possession and other reliefs filed by the 1st respondent – plaintiff against the - 3 - NC: 2025:KHC:12452 RFA No. 182 of 2022 appellant – 1st defendant and 2nd respondent – 2nd defendant was decreed in favour of the 1st respondent. 2. Heard learned counsel for the appellant and learned counsel for 1st respondent and perused the material on record. Though the 2nd respondent having been served with the notice of this appeal, he has chosen to remain absent and unrepresented. 3. A perusal of the material on record will indicate that the 1st respondent – plaintiff having filed the aforesaid suit, the appellant – 1st defendant contested the same while 2nd respondent – 2nd defendant remained ex-parte. The Trial Court framed as many as four issues and one additional issue, pursuant to which, the P.A. Holder of the plaintiff having been examined as PW-1 and producing documentary evidence at Exs.P1 to P15, the appellant did not cross-examine PW-1 but examined himself as DW-1. The Trial Court having heard both sides, proceed to pass the impugned judgment and decree in favour of the plaintiff which is assailed by the appellant – 1st defendant in the present appeal. 4. Learned counsel for the appellant submits that apart from the fact that the Trial Court has not considered or appreciated the material on record in its proper perspective, the inability and - 4 - NC: 2025:KHC:12452 RFA No. 182 of 2022 omission on the part of the appellant to cross-examine PW-1 was due to bonafide reasons, unavoidable circumstances and sufficient cause and as such, it is necessary to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh in accordance with law. 5. Per contra, learned counsel for the 1st respondent – plaintiff submits that he has not objection for the matter to be remitted back to the Trial Court subject to payment of exemplary costs and directions to the Trial Court to dispose of the suit within a stipulated timeframe. 6. In view of the aforesaid facts and circumstances and joint submissions made by both sides, I deem it just and appropriate to set aside the impugned judgment and decree passed by the Trial Court and remit the matter back to the Trial Court for reconsideration afresh by issuing certain directions. 7. In the result, I pass the following:- ORDER (i) Appeal is hereby allowed, subject to payment of costs of Rs.30,000/- to be paid by the appellant to the 1st respondent within period of three weeks from today. - 5 - NC: 2025:KHC:12452 RFA No. 182 of 2022 (ii) The impugned judgment and decree dated 30.10.2021 passed in O.S.No.3014/2017 by the Trial Court is hereby set aside. (iii) The matter is remitted back to the Trial Court for reconsideration afresh in accordance with law. (iv) Liberty is reserved in favour of both appellant and 1st respondent to adduce further oral and documentary evidence in support of their respective claims and also cross-examine the opposite party and their witnesses. (iv) Parties are directed to appear before the Trial Court on 15.04.2025 without awaiting further notice from the Trial Court. (v) The Trial Court is directed to dispose of the suit within a period of four months from 15.04.2025. (vi) The Registry is directed to refund the entire court fee paid by the appellant on the memorandum of appeal, forthwith, without any delay. Sd/- (S.R.KRISHNA KUMAR) JUDGE Srl.