Karnataka High Court
Smt. C. Shivarudramma vs Smt. Jagadamba on 17 August, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 282 OF 2016 (DEC)
BETWEEN:
SMT. C. SHIVARUDRAMMA
W/O M S BASAVARAJAPPA @ BASAVARAJAIAH
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE,
R/O ADIVALA VILLAGE,
TQ:HIRIYUR, DIST:CHITRADURGA
REPRESENTED BY HER SPECIAL POWER
OF ATTORNEY HOLDER
SRI. B HEMANTHARAJ S/O M S BASAVARAJAPPA @
BASAVARAJAIAH,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE,
R/O ADIVALA VILLAGE, TQ:HIRIYUR,
DIST:CHITRADURGA.
... APPELLANT
(BY SRI. GURUDEV I GACHCHINAMATH, ADVOCATE)
AND
1. SMT. JAGADAMBA
W/O HOTEL JAYANNA,
AGED ABOUT 62 YEARS,
OCC:HOTEL BUSINESS
R/O NERALAGUNTE, CHALLAKERE TALUKA,
DIST:CHITRADURGA-577522.
REPRESENTD BY LEGAL REPRESENTATIVE
SMT. PRABHAVATI, ADOPTED DAUGHTER OF
2
SMT. JAGADAMBA W/O CHANDRASHEKAR,
AGED ABOUT 50 YEARS,
OCC: HOUSE HOLD WORK,
R/O NERALAGUNTE, CHALLAKERE
TALUKA, CHITRADURGA DISTRICT.
V APPAJI
S/O VENKATAPPA
SINCE DECEASED BY HIS LRS
2. ARUNA W/O LATE V APPAJI
AGED ABOUT 60 YEARS,
AGRICULTURISTS
RESIDING OF
BEHIND MAHATMA GANDHI SCHOOL,
SOMAGUDDU ROAD, CHALLAKERE,
TQ:CHALLAKERE, DIST:CHITRADURGA-577522.
3. RAJU
S/O LATE V APPAJI ,
AGED ABOUT 40 YEARS,
AGRICULTURISTS
RESIDING OF
BEHIND MAHATMA GANDHI SCHOOL,
SOMAGUDDU ROAD, CHALLAKERE,
TQ:CHALLAKERE, DIST:CHITRADURGA-577522.
4. MADHU
S/O LATE V APPAJI,
AGED ABOUT 35 YEARS,
AGRICULTURISTS
RESIDING OF
BEHIND MAHATMA GANDHI SCHOOL,
SOMAGUDDU ROAD, CHALLAKERE,
TQ:CHALLAKERE, DIST:CHITRADURGA.
5. HARISH
S/O LATE V APPAJI ,
AGED 32 YEARS,
AGRICULTURISTS
3
RESIDING OF
BEHIND MAHATMA GANDHI SCHOOL,
SOMAGUDDU ROAD, CHALLAKERE,
TQ:CHALLAKERE, DIST:CHITRADURGA.
6. THE SECRETARY,
UNION OF INDIA,
PARLIAMENT BHAVAN,
NEW DELHI-110045
7. THE GENERAL MANAGER
(MC.II), THE NATIONAL HIGHWAYS
AUTHORITY OF INDIA,
G-5 AND 6, SECTOR-10
DWARAKA, NEW DELHI-110 045.
8. THE COMPETENT AUTHORITY
AND LAND ACQUISITION OFFICER
NATIONAL HIGH WAY AUTHORITY OF INDIA,
SREE RUDRA KRUPA,
NO.1075, OPPOSITE TO ITI COLLEGE,
BEHIND M M PETROL BUNK
HADADI ROAD, DAVANGERE
DIST:DAVANAGERE.
9. THE PROJECT DIRECTOR
NATIONAL HIGHWAY AUTHORITY
OF INDIA, BEHIND JMIT COLLEGE
CHITRADURGA, DIST:CHITRADURGA.
...RESPONDENTS
(BY SRI.V.RAGHAVENDRA, ADVOCATE FOR R2 TO R5, SRI.
SINGHANIA AND PARTNERS FOR R8 AND R9, R1(A)
SERVED AND UNREPRESENTED, VIDE ORDER DATED
29.07.2022, R6 AND R7 ARE DELETED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 27.09.2012 PASSED IN R.A NO.37/2011
ON THE FILE OF THE ADDL. DIST. JUDGE (FAST TRACK
4
COURT), CHITRADURGA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
1.4.11 PASSED IN O.S NO.41/2006 ON THE FILE OF THE
SENIOR CIVIL JUDGE, HIRIYUR.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
With the consent of both the counsel on record
having regard to the fact that suit is of the year 2003
which was re-numbered as O.S.No.41/2006 and also
having regard to the fact that appeal is of the year 2011,
this matter is taken up for 'Final Hearing'.
2. The captioned second appeal is filed by
plaintiff/respondent No.1 questioning the concurrent
judgments and decrees of the Courts below.
3. Learned counsel appearing for the respondents who
were appellants before the Appellate Court did make an
attempt and a statement was also made indicating that
plaintiff who was arrayed as respondent No.1 before the
Appellate Court was served with notice, however, when
asked to go through the Appellate Court records, the
learned counsel appearing for the defendants was not in a
position to show to this Court that there was due service of
notice on the plaintiff before the Appellate Court.
4. It is useful for this Court to cull out the endorsement
which is returned to the Appellate Court which reads as
under;
¸ÁQë:- dUÀzÁA§ M§âgÉ MAzÉà ªÀÄ£ÉAiÀÄ°è ªÁ¸À, D R1 ¥ÀæwªÁ¢ GµÁj®èzÉ
D¸ÀàvÉæUÉ ºÉÆÃVzÁÝgÉAzÀÄ «µÀAiÀÄ w½¹ µÀgÁ ¸À»ºÁQgÀÄvÁÛgÉ.
vÀAzÉ--
45 ªÀµÀð
£ÉÃgÀèUÀÄAmÉ
j¥ÉÆÃl£À: ¢£ÁAPÀ:17/12/2011
ºÀÄPÀÄA ªÉÄÃgÉUÉ: ¢£ÁAPÀ:5/12/11 gÀAzÀÄ R1 ¥ÀæwªÁ¢AiÀÄ «¼Á¸ÀPÉÌ ºÉÆÃV
«ZÁj¹zÁUÀ, F ¥ÀæwªÁ¢AiÀÄÄ GµÁj®èzÉ D¸ÀàvÉæUÉ ºÉÆÃVzÁÝgÉAzÀÄ «µÀAiÀÄ w½¹
µÀgÁ §gÉzÀÄ ¸À» ºÁQzÁÝgÉ DzÀÝjAzÀ eÁjU CªÀPÁ±À«®èzÉà £ÁåAiÀiÁ®AiÀÄPÉÌ ªÁ¥À¸ï
ªÀiÁrgÀÄvÉÛãÉ, ¸Áé«Ä.
5. On perusal of the said endorsement, this Court
would find that Jagadamba was appellant No.1 in the
appeal and notice is issued to Jagadamba and the report
indicates that at the time of service of notice, she was not
present at her residential address and had gone to hospital
for checkup. This report would clearly clinch the issue and
it is quite clear that the Appellate Court without verifying
as to whether plaintiff was duly served with summons, in a
very casual manner has proceeded to place her ex-parte
and the appeal is allowed.
6. I have gone through the records pertaining to
R.A.No.37/2011. I have also gone through the
acknowledgement receipt issued by the Appellate court
which is produced by the plaintiff before this Court. The
typed copy of summons issued by the Appellate Court is
also placed on record. On perusal of said summons copy,
this Court would find some force in the submission made
by learned counsel appearing for the plaintiff. The
Appellate Court has issued notice to appellant in
R.A.No.37/2011 and not to plaintiff who was arrayed as
respondent No.1. Notice is served on appellant No.1 in
regular appeal and service is held sufficient on plaintiff.
Summons copy clearly depicts that the summons was
issued to appellant No.1 and not to the plaintiff who was
arrayed as respondent No.1. Therefore, the reversal of
decree by the Appellate Court blatantly violates the
principles of natural justice and also the principles of fair
trial. Plaintiff was denied an opportunity to contest appeal
before the Appellate Court. If plaintiff was not served with
the summons/notice, the judgment and decree on that
sole count is not sustainable and the same is liable to be
set aside.
7. The Appellate Court records clearly depict that
plaintiff was never served with the notice and therefore,
the dismissal of the suit by the Appellate Court is without
affording an opportunity to the plaintiff. On this short
ground the judgment and decree rendered by the
Appellate Court in R.A.No.37/2011 is liable to be set aside.
The substantial question of law framed by this Court is
liable to be answered in the Affirmative. Accordingly, I
pass the following;
ORDER
The second appeal is allowed. The
judgment and decree of the Appellate Court
dated 27.09.2012 in R.A.No.37/2011 is set
aside.
The matter stands remitted back to the
Appellate Court to rehear the appeal afresh
and decide the appeal in accordance with law
after hearing both the parties.
Since parties are represented by their
respective counsel, it is made clear that
plaintiffs and defendants without expecting any
further notice shall appear before the Appellate
Court on 12.09.2022.
Sd/-
JUDGE
HDK
