Karnataka High Court
Smt.Mahadevi W/O Veerupraxappa ... vs Savita W/O Veeranna Kajagar on 7 January, 2021
Author: Sreenivas Harish P.N.Desai
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.
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
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
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
(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
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/-
