Shivalingappa S/O Ningappa ... vs Bomanna S/O Mallappa Baligar
2022 Latest Caselaw 1037 Kant

                         1




          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 24TH DAY OF JANUARY, 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

           WRIT PETITION NO.103688/2018
      & WRIT PETITION NO.103954/2018 (GM-CPC)

BETWEEN

1.     SHIVALINGAPPA S/O NINGAPPA BALIGAR
       AGE: 74 YEARS,
       OCC: AGRICULTURE,
       R/O: ARAKERI,
       TQ: BILAGI,
       DIST: BAGALKOTE.

2.     LOKAPPA S/O NINGAPPA BALIGAR
       AGE: ABOUT 50 YEARS,
       OCC: AGRICULTURE,
       R/O: ARAKERI,
       TQ: BILAGI,
       DIST: BAGALKOTE.

                                      ...PETITIONERS

(BY SRI. UMESH HAKKARKI, ADV. FOR
SRI.MALLIKARJUNSWAMY B HIREMATH, ADV.)

AND

1.     BOMANNA S/O MALLAPPA BALIGAR
       ALIAS KAJAGAR,
       AGE: ABOUT 41 YEARS,
       OCC: AGRICULTURE,
       R/O: ARAKERI,
       TQ: BILAGI,
       DIST: BAGALKOTE.
                          2




2.   PARAWATEVVA W/O MALLAPPA ALIAS KAJAGAR
     AGED ABOUT 53 YEARS,
     OCC: AGRICLTURE,
     R/O: NAVANAGAR,
     SHED NO.65/14,
     NAVANAGAR, BAGALKOTE.

3.   SMT.MAHADEVI W/O PARASSURAM VYPARI
     AGED ABOUT: 42 YEARS,
     OCC: HOUSEWIFE,
     R/O: H.NO.A-65,
     S.M.KRISHNA NAGAR,
     AUTO COLONY, GADAG.

4.   SMT.KALLVVA W/O BOMMANNA CHALAGERI
     AGED ABOUT: 59 YEARS,
     OCC: HOUSEWIFE,
     R/O: ILLAL,
     TQ AND DIST: BAGALKOTE.

5.   LAXMAVVA @ LASMIBAI
     W/O SHIVAPPA KAJAGAR,
     AGED ABOUT: 47 YEARS,
     OCC: HOUSEWIFE,
     R/O: YADAHALLI,
     TQ: BILAGI,
     DIST: BAGALKOTE.
                                    ...RESPONDENTS
(BY SRI.S.B.HEBBALLI, ADV. FOR R1
NOTICE TO R2 DISPENSED WITH)

     THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DATED:24.04.2018 AT
ANNEXURE-"J" PASSED BY THE SENIOR CIVIL JUDGE
AND JMFC, BILAGI IN O.S.NO.216/ 2005 AND
CONSEQUENTLY ALLOW I.A.NO.7 AND ETC.

     THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
                                   3




                             ORDER

The petitioners are the second and third

defendants in O.S. No.216/2005 pending on the file of

the Senior Civil Judge and JMFC, Bilagi (for short, "the

civil Court"). The civil Court by its impugned order

dated 24.04.2018 has rejected the petitioners'

application in I.A. Nos.7 and 8. The petitioners'

application in I.A. No.7 is for leave to file additional

written statement and their other application in I.A.

No.8 is under Order XIV Rule 5 of CPC. The petitioner

in filing this later application has requested the civil

Court to frame an additional issue on whether the

fourth and fifth respondents (the fifth and six

defendants) are entitled to 2/9th share in the suit

schedule properties. The civil Court's reasons for

rejection of the petitioners' applications read as under:

"After passing decree in OS.

No.216/2005 the deft. No.2 has preferred an R.A. before Hon'ble Prl. District and Sessions Judge, in R.A. No.25/2017 by challenging the decree, and the Hon'ble appellate court after

going through all the materials of the trial court has remanded the matter by setting aside the decree passed by this court with a condition for leading evidence of deft. No.2. When Hon'ble appellate has remanded the matter with condition precedent to lead the evidence of deft.No.2 only to that extent the decree passed in O.S.No.216/2005 dated: 20-01-2017 is set aside. The said decree has not been set aside by the appellate court in entirety. Hence if once these applications are allowed certainly the matter will go beyond the decree passed in O.S.No.216/2005. For that the parties are not entitle to go beyond the decree passed by this court in respect of the other facts involved in the suit. Therefore the deft.No.2 is permitted only to lead his evidence and to that extent only he can proceed with the case except otherwise. In I.A.No.8 the deft.No.2 has sought to frame additional issues in respect of share of the parties, but the court has already passed the decree in respect of allotment of share of the parties. If once as per the order of appellate court after leading evidence of deft.No.2 then court can mould the relief by granting modified share to the parties. Therefore

framing of additional issues at this stage will not arise."

2. The first respondent has filed the suit in O.S.

No.216/2005 for partition impugning the sale deeds

executed by his father in the year 1977 and 1980

contending that the petitioners, who are distantly

related, have taken advantage of his father's addiction

and vices and obtained the impugned sale deeds. The

first respondent originally filed this suit only against the

petitioners and their mother (the second respondent).

However, with the first respondent's sister/aunt [the

fourth and fifth respondents] impleading themselves

and filing their written statement on 23.01.2015, the

civil Court disposed of the suit by its judgment dated

20.01.2017 decreeing the suit.

3. However, the petitioners' appeal in R.A.

No.25/2017 on the file of the Principal District and

Sessions Judge, Bagalkot (for short, "the appellate

Court") is allowed by the judgment dated 16.12.2017

and the suit is restored. The operative portion of the

appellate Court's judgment dated 16.12.2017 reads as

under:

"The regular appeal filed by the appellants/defendants No.2 and3 is hereby allowed.

The judgment and decree passed by Senior Civil Judge and JMFC, Bilagi in O.S.216/2005 dated 20.1.2017 is hereby set aside.

The matter is remanded to lower court with the following conditions:

The defendants are directed to pay cost of Rs.5,000/- to the plaintiffs, which shall be condition precedent for leading their evidence.

The parties are represented by their respective counsel in the appeal. Hence, they are directed to appear before lower court on 1.2.2018 for receiving further instructions."

4. The appellate Court has thus set-aside the

civil Court's judgment dated 20.01.2017 in its entirety

observing that the petitioners did not have reasonable

opportunity to contest the suit and if there is any delay

in the adjudication of the suit by the judgment dated

20.01.2017, it is because of the first respondent. The

appellate Court has observed that the suit was initially

dismissed for non-prosecution but restored at the

instance of the first respondent on his application under

Order IX Rule 9 of CPC, and even after the suit is

restored, the first respondent did not complete his

evidence for over 2½ years. The suit was listed for

judgment without a reasonable opportunity to the

petitioners to lead evidence. In fact, the appellate Court

has observed that the civil Court has decreed the suit

only on the basis of evidence led in by the defendants

who have supported the first respondent.

5. From the reading of the appellate Court's

order it is only reasonable to conclude that the civil

Court has rejected the petitioner's application on a

complete misreading of the appellate Court's orders.

The petitioners' application (I.A. No.7) is to file written

statement, and their request is consequent to the first

respondent's sister and aunt [the fourth and fifth

respondents] filing written statement asserting that the

suit schedule properties, including the lands purchased

by the petitioners, are ancestral properties and

Sri.Mallappa could not have executed sale deeds and

they are entitled for a share. The petitioners' other

application is for additional issue on the entitlement of

the shares as asserted by the aforesaid in terms of the

written statement.

6. The suit is restored by the appellate Court to

enable complete adjudication with opportunity to the

parties to lead evidence on all issues that would arise

for consideration. The civil Court will not only have to

decide whether the first respondent is justified in his

claim for declaration that the sale deeds executed in

favour of the petitioners is null and void but also on the

question whether the third to sixth respondents are

entitled for a share. Therefore, in the peculiar

circumstances of the case, the petitioners must have the

liberty to file additional written statement and the civil

Court must also necessarily frame an issue as proposed

by the petitioners. Therefore, the following:

ORDER

a. The petition is allowed, and the

impugned order dated 24.04.2018 is

quashed. The petitioners' application (I.A.

Nos.7 and 8) are allowed.

            b.     The civil Court is called upon to

     take   on     record   the   petitioner's   written

statement and also frame Issue as proposed

by the petitioners.

c. The parties shall cooperate with

and assist the civil Court in expeditious

disposal of the suit, and the civil Court

under all circumstances shall dispose of the

suit within an outer limit of nine [9] months

from the date of receipt of a certified copy of

this order.

If there are any requests for unnecessary adjournments,

the Court shall deal with the same by imposing

exemplary costs.

Sd/-

JUDGE Rsh