Karnataka High Court
Veerabhadrappa S/O Basappa ... vs Smt.Yamanawwa W/O Ranappa ... on 14 January, 2022
Bench: R Natarajpresided Byrnj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14th DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
MFA NO.102572/2019 (CPC)
BETWEEN:
1. VEERABHADRAPPA S/O BASAPPA GANIGER,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: NARENDRA VILLAGE,
TQ/DIST: DHARWAD-580 005.
2. ISHWAR S/O BASAPPA GANIGER,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: NARENDRA VILLAGE,
TQ/DIST: DHARWAD-580 005.
3. IRAPPA S/O VEERABHADRAPPA GANIGER,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: NARENDRA VILLAGE,
TQ/DIST: DHARWAD-580 005.
...APPELLANTS
(BY SHRI ARUN L.NEELOPANT, ADVOCATE)
AND:
1. SMT.YAMANAWWA W/O RANAPPA DAFEDAR,
AGE: 73 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
R/O: BUDARAKATTI VILLAGE,
NOW AT KAMALAPUR,DHARWAD-580 006.
2. CHIDAMBAR S/O SHAADEVAPPA DAFEDAR,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: CHIDAMBARESHWAR NAGAR, WARD NO.17,
RAMAPUR SITE, (GULRHOSUR), SOUNDATTI,
TQ: SOUNDATTI, DIST: BELAGAVI-591 126.
3. JYOTIEPPA S/O CHIDAMBAR DAFEDAR,
AGE: 43 YEARS, OCC: AGRICULTURE,
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R/O: GULAKOPPA, (POST TEGUR),
TQ/DIST: BELAGAVI-591 115.
4. SMT.SHANTAWWA W/O GANGAPPA KOBAJI,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: PATTADAKALLU ONI, SOUNDATTI,
TQ: SOUNDATTI, DIST: BELAGAVI-591 126.
5. SMT.YALLAWWA W/O BASAPPA JADHAV,
AGE: 37 YEARS, OCC: HOUSEWIFE,
R/O: PATTADAKALLU ONI, SOUNDATTI,
TQ: SOUNDATTI, DIST: BELAGAVI-591 126.
6. SMT.MANJULA W/O NARAYAN DHARWAD,
AGE: 35 YEARS, OCC: HOUSEWIFE,
R/O: HOLTIKOTI, TQ: SOUNDATTI,
DIST: BELAGAVI-591 126.
7. MALLAPPA CHIDAMBAR DAFEDAR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: CHIDAMBARESHWAR NAGAR, WARD NO.17,
RAMAPUR SITE, (GULRHOSUR), SOUNDATTI,
TQ: SOUNDATTI, DIST: BELAGAVI-591 126.
8. KUMARI SAVAKKA D/O CHIDAMBAR DAFEDAR,
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHIDAMBARESHWAR NAGAR, WARD NO.17,
RAMAPUR SITE, (GULRHOSUR), SOUNDATTI,
TQ: SOUNDATTI, DIST: BELAGAVI-591 126.
9. BABU RAMAPPA DAFEDAR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KAMALAPUR, DHARWAD-580 006.
...RESPONDENTS
(BY SHRI N.S. BADIGER, ADVOCATE FOR R1 TO R8;
RESPONDENT NO.9 - SERVED)
THIS APPEAL IS FILED UNDER ORDER XLIII RULE 1(d) OF THE
CPC, AGAINST THE ORDER DATED 30.05.2019 PASSED IN
MISC.NO.24/2018 ON THE FILE OF THE SENIOR CIVIL AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BAILHONGAL
DISMISSING UNDER ORDER 9 FULE 14 R/W SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
1. This appeal under Order XLIII Rule 1(d) of the Code
of Civil Procedure is filed by the defendant Nos.3 to 5 in O.S.
No.9/2015 assailing the exparte judgment and decree dated
10.01.2017 in O.S. No.9/2015 as well as the order dated
30.05.2019 in Misc. No.24/2018 by which the petition filed by
the appellants for setting aside the exparte decree was rejected.
2. A suit in O.S. No.9/2015 was filed for partition and
separate possession. The appellants herein were defendant Nos.3
to 5 in the said suit. The appellants were placed exparte and an
exparte judgment and decree dated 10.01.2017 was passed. The
appellants filed Civil Misc. No.14/2017 under Order IX rule 13 of
the Code of Civil Procedure seeking restoration of the suit on
07.07.2018. It is stated that the counsel representing the
appellants in Civil Misc.No.14/2017 had been to this Court to
participate in 10th year Centenary Celebration while the
appellants were attending the funeral ceremony of their relative.
Therefore, the Civil Misc. No.14/2017 was dismissed for non-
prosecution. Thereafter the appellants filed Misc. No.24/2018
under Order IX Rule 4 of Code of Civil Procedure to set aside the
order dated 07.07.2018 in Civil Misc. No.14/2017. The appellants
filed an application under Section 5 of the Limitation Act, 1963
seeking to condone the delay of 32 days in preferring the Misc.
No.24/2018. The trial Court dismissed the application in terms of
the order dated 30.05.2019 and consequently rejected the Misc.
No.24/2018.
3. Being aggrieved by the aforesaid order, the present
appeal is filed.
4. Learned counsel for the appellants submitted that the
trial Court was not justified in not condoning the delay of 32 days
in filing the petition, more so when the appellants had explained
the reason for the delay. Learned counsel submitted that the trial
Court ought to have been liberal in the matter of considering the
application for condonation of delay.
5. Learned counsel for the respondents on the other
hand submitted that the appellants were casual and were not
seriously defending the litigation and therefore, this Court may
not show any leniency.
6. The suit is filed for partition and separate possession
and these appellants were arrayed as defendants in the suit. The
trial Court while considering the application for condonation of
delay must have considered it liberally rather than requiring
strict explanation of each day's delay. Further in cases relating to
setting aside exparte decrees, more particularly when the civil
and property rights of the parties are adversely affected, Courts
have to be pragmatic. Instead of keeping collateral proceedings
pending and wasting judicial time, it is appropriate that Courts
consider such petitions liberally. In the present case, the counsel
for the appellants had been to this Court to attend the 10th years
Centenary celebration, which could be true. Therefore, this Court
feels it proper to restore the original proceedings so that the
cause of action can be fully and finally adjudicated between the
parties.
7. In that view of the matter, this appeal is allowed.
The impugned order passed by the trial Court in Misc. 24/2018 is
set aside and consequently, the dismissal of the Misc. Petition
and exparte judgment and decree in O.S. No.9/2015 are set
aside. However, the same is subject to the following:
(i) The appellants shall pay costs of Rs.50,000/-
payable to the respondents/plaintiffs within a
period of four weeks from today.
(ii) The parties shall appear before the trial Court
in O.S. No. 9/2015 on 09.02.2022.
(iii) Appellants/Defendant Nos.3 to 5 shall also file
written statement on the said day. The trial
Court shall thereafter frame issues and take up
the suit on weekly basis and record the
evidence of the parties and dispose of the suit
within a period of six months from the date of
conclusion of the trial.
SD/-
JUDGE
Vnp*
