Shivasharanappa S/O Annarao ... vs Venkatrao S/O Ramkishan Rao
2022 Latest Caselaw 2721 Kant

                             1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 18TH DAY OF FEBRUARY 2022

                         BEFORE

      THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

     WRIT PETITION NO.207015/2015 (GM-CPC)

BETWEEN:

SHIVASHARANAPPA S/O ANNARAO PATIL
AGE: 55 YEARS, OCC: AGRICULTURE
R/O ATTUR VILLAGE, TQ: BASAVAKALYAN
DIST: BIDAR-585 401
                                              ... PETITIONER

(BY SRI MAHADEV S. PATIL, ADVOCATE)

AND:

1.      VENKATRAO S/O RAMKISHAN RAO
        AGE: 70 YEARS, OCC: AGRICULTURE
        R/O BELAMGI VILLAGE, TQ. ALAND
        DIST. KALABURAGI-585 314

2.      ANNARAO S/O BHIMRAO PATIL
        SINCE DECEASED BY L.RS.

2A.     SMT. JANABAI W/O ANNARAO PATIL
        AGE: 70 YEARS, OCC: HOUSEHOLD
        R/O ATTUR VILLAGE, TQ. BASAVAKALYAN
        DIST. BIDAR-585 401

2B.     MALLIKARJUN S/O ANNARAO PATIL
        AGE: 40 YEARS, OCC: AGRICULTURE
        R/O ATTUR VILLAGE, TQ. BASAVAKALYAN
        DIST. BIDAR-585 401
                                2



  2C.    KHANDERAO S/O ANNARAO PATIL
         AGE: 38 YEARS, OCC: AGRICULTURE
         R/O ATTUR VILLAGE, TQ. BASAVAKALYAN
         DIST. BIDAR-585 401

   2D.   MAHANTAPPA S/O ANNARAO PATIL
         AGE: 35 YEARS, OCC: AGRICULTURE
         R/O ATTUR VILLAGE, TQ. BASAVAKALYAN
         DIST. BIDAR-585 404

   3.    SMT TANABAI W/O RAMKISHANRAO
         SINCE DECEASED BY L.Rs.

   3A.   SHANTABAI D/O RAMKISHANRAO
         AGE: 40 YEARS, OCC: HOUSEHOLD
         R/O BELAMGI VILLAGE, TQ. ALAND
         DIST. KALABURAGI-585 314.

    3B. SHARADABAI D/O RAMKISHANRAO
        AGE: 40 YEARS, OCC: HOUSEHOLD
        R/O BELAMGI VILLAGE, TQ. ALAND
        DIST. KALABURAGI-585 314

   4.    MANIK RAO S/O RAMKISHAN RAO
         AGE: 45 YEARS, OCC: AGRICULTURE
         R/O CHINCHOLI, TQ. OMERGA-413 606
         DIST. OSMANABAD (MAHARASHTRA).
                                             ... RESPONDENTS

(SRI R.S. SIDHAPURKAR, ADV. FOR R1, R3(A), R3(B) & R4;
 R2(A) TO R2(D) - SERVED)

        THIS WRIT PETITION IS FILED UNDER ARTICLES 226
  AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
  A WRIT OF CERTIORARI BY SETTING ASIDE THE ORDER DATED
  20.12.2013 PASSED BY PRL. CIVIL JUDGE (JR.DN) AT ALAND IN
  CIVIL. MISC. PETITION NO.18/2005 AND AN ORDER DATED
  14.10.2015 PASSED BY SENIOR CIVIL JUDGE AT ALAND IN
  MISC. APPEAL NO.2/2014 (ANNEXURES-K AND L) BY ALLOWING
  THE APPLICATION FILED BY THE PETITIONER U/O 9 RULE 13 OF
  CPC FOR SETTING ASIDE EX-PARTE DECREE IN O.S.
  NO.108/1987 AND ETC.
                               3



      THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This petition is directed against the impugned order

dated 20.12.2013 passed in Civil Misc. No.18/2005 by the

Principal Civil Judge (Jr.Dn.), Aland (for short 'Trial Court')

dismissing the petition filed by the petitioner under Order

IX Rule 13 of the Code of Civil Procedure which was

confirmed by the subsequent impugned order dated

14.10.2015 in Misc. Appeal No.02/2014 by the Senior Civil

Judge, Aland (for short 'First Appellate Court'), whereby

the First Appellate Court dismissed the appeal filed by the

petitioner, confirming the order passed by the Trial Court.

2. Heard the learned counsel for the petitioner

and learned counsel for the respondents and perused the

material on record.

3. The material on record indicates that

respondent Nos.3 and respondent No.4 herein filed a suit

in O.S.No.108/1987 for partition and separate possession

of their alleged share in the suit schedule properties and

for other reliefs. In the said suit, petitioner herein was

arrayed as defendant No.2. The said suit was not

contested by either the petitioner/defendant No.2 or

respondent No.1/defendant No.1. On 18.11.1989, the said

suit in O.S.No.108/1987 was decreed in favour of the

plaintiffs.

4. It is the specific contention of the petitioner

that he has not served with suit summons/notice in the

aforesaid suit O.S.No.108/1987; that, he was not aware of

filing of the aforesaid suit nor its pendency title, he

received notice in FDP No.04/2004 filed by respondent

No.4 to enforce and implement the aforesaid judgment and

decree; that, the petitioner had never engaged the

services of any counsel in the said suit. It was contended

that since the petitioner did not have any knowledge about

the suit on account of the suit summons not having been

served upon him, the aforesaid Misc. Petition filed by him

under Order IX Rule 13 of CPC within a period of 30 days

from the date of knowledge of the decree was within the

prescribed period of 30 days as contemplated under Article

123 of the Limitation Act.

5. The material on record also indicates that

before the Trial Court, plaintiffs contested the Misc.

petition pursuant to which the Trial Court recorded the

evidence of both sides. On behalf of the petitioner,

petitioner examined himself as PW.1 and on behalf of the

respondents, one Sri Revanasiddappa, Advocate was

examined as RW.1. After trial, the Trial Court proceeded

to dismiss the aforesaid Misc. petition, aggrieved by which

the petitioner preferred an appeal in M.A.No.02/2014

before the First Appellate Court. By the subsequent

impugned order dated 14.10.2015, the First Appellate

Court dismissed the appeal filed by the petitioner,

aggrieved by which, the petitioner is before this Court by

way of the present petition.

6. A perusal of the material on record including

the impugned orders passed by the Trial Court and the

First Appellate Court will clearly indicate that both the

courts have rejected the claim of the petitioner for setting

aside the exparte judgment and decree on the ground that

the petitioner had been represented by a counsel and

consequently the judgment and decree passed against him

was not an exprate decree warranting interference under

Order IX Rule 13 of CPC. In this context, it is relevant to

state that it is well settled that in the light of the provisions

contained in Order IX Rule 13 of CPC R/w Order XVII Rules

2 and 3 CPC, merely filing of vakalath itself cannot lead to

an inference that the petitioner was not entitled to file a

petition under Order IX Rule 13 of CPC, particularly when

he did not contest the proceedings. It is also significant to

note that the Lawyer, who was examined as RW.1 has

categorically admitted that the petitioner had not signed

the vakalath in his office in his presence; that, it was

defendant No.1, who bought the vakalath of the petitioner

and defendant No.3 to the office of RW.1; that, RW.1 had

never met the petitioner during the course of the

proceedings; that, petitioner had not given any

instructions to RW.1 to either file the written statement or

contest the proceedings.

7. The material on record also discloses that

there is no legal or acceptable evidence to come to the

conclusion that the petitioner had been served with suit

summons/notice of the aforesaid O.S.No.108/1987 filed by

respondent Nos.3 and 4.

8. Under these circumstance, in the absence of

any material to establish that suit summons/notice of

O.S.No.108/1987 was served upon the petitioner during

the course of the proceedings coupled with the various

discrepancies, admissions, contradictions and

inconsistencies in the pleadings and evidence of plaintiffs,

in particular the evidence of RW.1, I am of the considered

opinion that the impugned orders passed by the Trial Court

and the First Appellate Court are based on surmises and

conjectures and not on the basis of legal and acceptable

evidence and consequently, in order to give one more

opportunity to the petitioner to contest the case on merits,

it is necessary that the impugned orders passed by the

Trial Court and the First Appellate Court are set aside and

the matter is remitted back to the Trial Court for

reconsideration of the suit in O.S.No.108/1987 afresh in

accordance with law by fixing a time frame for completion

of the proceedings by the Trial Court.

9. In the result, I pass the following:

ORDER

i. Petition is allowed.

ii. The impugned order dated 20.12.2013 passed

by the Trial Court in Civil Misc. No.18/2005 and

the order dated 14.10.2015 passed by the First

Appellate Court in M.A.No.02/2014 are hereby

set aside.

iii. Consequently, the suit in O.S.No.108/1987 is

restored to the file of the Trial Court.

iv. The petitioner undertakes to appear before the

Trial Court on 21.03.2022 without awaiting

further notice from the Trial Court.

v. The petitioner is directed to file written

statement before the Trial Court within a

period of one month from 21.03.2022.

vi. Upon the petitioner filing written statement,

the Trial Court is directed to proceed further in

the matter and dispose of the suit on merits as

expeditiously as possible and preferably on or

before 16.12.2022.

Sd/-

JUDGE LG