1
IN THE HIGH COU RT OF KARNAT AKA
DHARWAD B ENCH
DATED THIS THE 7 T H DAY OF JANUARY, 2021
PRESENT
THE HON'B LE MR. JU ST ICE SREENIV AS HARISH KUMAR
AND
THE HON'B LE MR. JU ST ICE P.N.DESAI
REGU LAR FIRST A PPEAL NO.100279/ 2019
B ETWEEN:
SMT.MAHADEVI
W/O. VEERUPRAX APPA KAJAGAR
AGE: 70 YEARS, OCC: HOU SEWIFE,
R/O. H.NO.59, 6 T H CROSS,
ADARSH NAGAR,
HINDWADI, B ELAGAVI- 590011.
....APP ELLANT .
(B Y SHRI VITTHAL S. TELI, ADVOCATE.)
AND:
1. SAVITA W/O. VEERANNA KAJAGAR
AGE: 51 YEARS, O CC: DOCTOR,
R/O. C/O. DR. SAMB ASHIVAYY A
AB HILASH 821
H.NO.821, 6 T H CROSS, M.C.LAYOU T,
VIJ AY NAGAR, B ENGALU RU -560040.
2. KU MARI SHRU STI
D/O. VEERANNA KAJAGAR
AGE: 18 YEARS, O CC: STU DENT,
R/O. C/O. DR. SAMB ASHIVAYY A
2
AB HILASH 821
H.NO.821, 6 T H CROSS, M.C.LAYOU T,
VIJ AY NAGAR, B ENGALU RU -560040.
....RESP ONDENT S.
(B Y SHRI A.A.MU LAWADMATH, ADVOCATE (AB SENT).
THIS REGU LAR F IRST A PP EAL IS FILED UNDER
SECTION 96 REA D WITH ORDER 41 RU LE 1 OF CPC,
PRAYIN G TO SET ASIDE T HE JUD GMENT AND DECREE
DATED 22.2.2019, PASSED IN O.S.NO.382/ 2014, B Y THE
PRL. SENIOR CIVIL JUDGE AND CHIEF JU DICIAL
MAGISTRATE, B ELAGAVI, AND T O DECREE THE SU IT,
ETC.,.
THIS AP PEAL COMING ON FOR ADMISSION T HIS
DAY, SRI SREENIV AS HARISH KUMAR, J , DELIVERED T HE
FOLL OWING:
JUDGMENT
This appeal is disposed of at the stag e of ad mission. Counsel for respondent is ab sent.
2. Having heard the counsel for appellant on I.A.No.1/2019 filed under section 5 of the Limitation Act and finding sufficient cause for delay of four days, app lication is allowed . Delay is condoned.
3. Plaintiff is the appellant and defend ants No.1 and 2 are the respondents.
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4. The appellant instituted a suit for partition, O.S.No.382/2014 in the Court of Prl. Senior Civil Judge, Belag avi. It is not necessary to cull out the pleadings because of a wrong proced ure adopted by the learned trial Judge for dismissing the suit.
5. The order sheet of the trial Court shows that on 22.1.2018 the plaintiff filed her affid avit in lieu of examination-in-chief. From that d ay, the case was adjourned to 28.2.2018 for further examination- in-chief and cross-examination of PW.1. On that day PW.1 produced certain documents and the case was adjourned to 26.3.2018. PW.1 was further examined- in-chief on 26.3.2018 and got marked 20 documents as Exs.P.1 to P.20. The counsel for the defend ant was absent. The case was adjourned to 17.4.2018 for further examination-in-chief of PW.1. On that day the case was ag ain adjourned to 11.6.2018. Ag ain an application und er Order 7 Rule 14 read with section 151 of CPC was mad e on b ehalf of p laintiff for production of some more documents. The case was 4 posted to 2.7.2018 for further examination-in-chief and cross-examination of PW.1. On 2.7.2018 the application was allowed and documents were taken on record . The case was adjourned to 24.7.2018 for further examination-in-chief of PW.1. On the adjourned d ate i.e., on 24.7.2018 PW.1 was further examined-in-chief and got marked one more document as per Ex.P.21. Counsel for defend ant was absent and therefore case was adjourned to 13.8.2018 for cross-examination of PW.1. Then on 13.8.2018 PW.1 was p resent before the Court. Since a submission was mad e b efore the Court by the ad vocates for the plaintiff and the defend ant for referring the matter to mediation, the req uest was considered and the matter was referred to Mediation Center, Belag avi. On 22.10.2018 case was again called in the Court since the mediation failed. Case was then posted to 17.12.2018 for cross- examination of PW.1. On 17.12.2018, PW.1 was present but the ad vocate for defend ant was absent and therefore case was adjourned to 14.1.2019 for 5 cross-examination of PW.1. On 14.1.2019 also PW.1 was present, case was called three times on that day since there was no rep resentation on behalf of defend ant. For this reason the cross-examination of PW.1 was taken as nil and the plaintiff thereafter closed his side of evid ence. Case was posted to 18.1.2019 for defend ants evid ence. Since there was no rep resentation from both sid es, defendants evid ence was taken as nil and the case was posted to 19.1.2019 for arg uments. On 19.1.2019 the plaintiff's counsel add ressed arguments and the defend ant's counsel was absent on that d ay also. Thereafter the case was posted to judgment on 25.1.2019. The judgment was pronounced on 22.2.2019.
6. Parag rap h No.17 of the imp ugned judgment shows the reason for dismissal of the suit. What is observed by the learned trial Judge is that PW.1 did not turn up for cross-examination. Relying upon the judgment of the Hon'ble Supreme Court in the case of Gopal Saran vs. Satyanarayana, AIR 6 (1989) 3 SCC 56, the trial Court dismissed the suit by hold ing issues No.1 to 5 in the neg ative.
7. The observation made by learned trial Judge in p arag raph No.17 of the judgment is clearly in contrad iction with the proceedings record ed by her. When the ord er sheet very clearly shows that PW.1 was p resent on all the dates of hearing for cross-examination, the trial Court judge should not have ob served in her judgment that PW.1 did not turn up for cross-examination. The trial Court has gone to the extent of drawing ad verse inference ag ainst PW.1 for no fault of her. We are constrained to say that the trial Court judge is not aware of the procedural aspects. There was no scop e for holding that PW.1 did not appear for cross-examination. The trial Court ought to have answered the issues by app reciating the evidence to come to a p roper conclusion. We do not find any appreciation of evid ence at all. Answering the issues in neg ative giving the reason that PW.1 did not appear for cross- examination is not at all acceptable, and we simply 7 disapp rove the approach of the trial Court jud ge. Therefore we find a good ground for allowing this app eal. Since the matter needs to be reconsidered by the trial Court to give find ings on all the issues, we p ass the following:
ORDER
i) Appeal is allowed .
ii) Judgment dated 22.2.2019 in O.S.No.382/2014 passed by the Prl. Senior Civil Judge, Belagavi, is set asid e. The matter is
remanded to the trial Court for d isposal on merits.
iii) Send back the trial Court records.
iv) The p arties shall appear before the trial Court on 5.2.2021.
Sd/-
JUDGE Sd/-
JUDGE Mrk/-