Gangavva W/O Hanumanthappa ... vs Gouravva W/O Yallappa Hombaradi
2022 Latest Caselaw 847 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 19TH DAY OF JANUARY, 2022

                        BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

       WRIT PETITION NO.103543/2016 (GM-CPC)

BETWEEN:

1.   GANGAVVA
     W/O HANUMANTHAPPA BHYRANGI,
     AGE:61 YEARS, OCC:HOUSEHOLD WORK,
     R/O: RANEBENNUR, TQ:RANEBENNUR
     DIST: HAVERI.

2.   SATISH
     S/O HANUMANTHAPPA BHYRANGI,
     AGE:30 YEARS, OCC:BUSINESS,
     R/O: RANEBENNUR, TQ:RANEBENNUR
     DIST: HAVERI.

3.   PRAKASH
     S/O HANUMANTHAPPA BHYRANGI,
     AGE:31 YEARS, OCC:MAISON,
     R/O: RANEBENNUR, TQ:RANEBENNUR
     DIST: HAVERI.

4.   SHOBHA
     D/O HANUMANTHAPPA BHYRANGI,
     AGE:26 YEARS, OCC:HOUSEHOLD
     WORK,
     R/O: RANEBENNUR, TQ:RANEBENNUR
     DIST: HAVERI.

5.   SAPNA
     D/O HANUMANTHAPPA BHYRANGI,
     AGE:25 YEARS, OCC:HOUSEHOLD WORK,
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      R/O: RANEBENNUR, TQ:RANEBENNUR
      DIST: HAVERI.

6.    GANESH
      S/O LAKSHMAN BHYRANGI,
      AGE:56 YEARS, OCC:BUSINESS,
      R/O: RANEBENNUR, TQ:RANEBENNUR
      DIST: HAVERI.

7.    RAMESH
      S/O LAKSHMAN BHYRANGI,
      AGE:51 YEARS, OCC:BUSINESS,
      R/O: RANEBENNUR, TQ:RANEBENNUR
      DIST: HAVERI.

8.    MANJAKKA
      D/O NAGAPPA BASAPUR,
      AGE:27 YEARS, OCC:HOUSEHOLD WORK,
      R/O: MEDLERI, TQ:RANEBENNUR
      DIST: HAVERI.

9.    BASAMMA
      D/O NAGAPPA BASAPUR,
      AGE:25 YEARS, OCC:HOUSEHOLD WORK,
      R/O: MEDLERI, TQ:RANEBENNUR
      DIST: HAVERI.

10.   DRAKSHAYANI
      W/O KOTRAPPA KOKKANAVAR,
      AGE:46 YEARS, OCC:HOUSEHOLD WORK,
      R/O: YALLAPUR @ MEDLERI,
      TQ: RANEBENNUR,
      DIST: HAVERI.

11 . YANKAVVA
     W/O HANUMANTHAPPA BARKI,
     AGE:44 YEARS, OCC:HOUSEHOLD WORK,
     R/O: HAVANUR, TQ: HAVERI,
     DIST: HAVERI.
                           :3:


12 . PUTTAVVA
     W/O RAMACHANDRAPPA NITTUR,
     AGE:41 YEARS, OCC:HOUSEHOLD WORK,
     R/O: AGADI, TQ: HAVERI,
     DIST: HAVERI.

13 . RENUKA
     W/O LAXMAN BHYRANGI,
     AGE:36 YEARS, OCC:HOUSEHOLD WORK,
     R/O: RANEBENNUR, TQ:RANEBENNUR
     DIST: HAVERI.

14.   SURESH
      S/O SHIVAPPA BHYRANGI,
      AGE:MAJOR, OCC:BUSINESS,
      R/O: NEAR DURGAD ONI,
      RANEBENNUR,
      TQ: RANEBENNUR,
      DIST: HAVERI.

                                  PETITIONERS

(BY SRI : AVINASH BANAKAR, ADVOCATE)

AND

1.    GOURAVVA
      W/O YALLAPPA HOMBARADI,
      AGE:66 YEARS, OCC:HOUSEHOLD WORK,
      R/O: AGADI, TQ: HAVERI,
      DIST: HAVERI.

2.    SHANTAVVA
      W/O HANUMANTHAPPA HANASOGI,
      AGE:56 YEARS, OCC:HOUSEHOLD WORK,
      R/O: NAGINAMATTI, TQ: HAVERI,
      DIST: HAVERI.

3.    KAMALAVVA
      W/O HANUMANTHAPPA SUNAGAR,
      AGE:51 YEARS, OCC:HOUSEHOLD WORK,
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     R/O: NAGINAMATTI, TQ: HAVERI,
     DIST: HAVERI.

4.   TIRUKAPPA
     S/O PUTTAPPA BHYRANGI,
     AGE:71 YEARS, OCC:RTD. SERVANT
     R/O: SUNAGARGERI, TQ: BYADGI,
     DIST: HAVERI.

5.   RATNAVVA
     W/O RANGAPPA BHYRANGI,
     AGE:MAJOR, OCC:HOUSEHOLD WORK,
     R/O: SUNAGARGERI, TQ: BYADGI,
     DIST: HAVERI.

6.   BASAVARAJ
     S/O NINGAPPA SUNAGAR,
     AGE:61 YEARS, OCC:BUSINESS,
     R/O: NEAR DURGAD ONI,
     RANEBENNUR,
     TQ: RANEBENNUR,
     DIST: HAVERI.

                                      RESPONDENTS

(BY SRI HARSHAWARDHANA M. PATIL ADVOCATE
FOR SRI M.H. PATIL, ADVOCATE FOR RESPONDENT NOS.1 TO 3
RESPONDENT NOS.4 AND 5 ARE SERVED
SRI PRASHANT MATHAPATI, ADVOCATE FOR RESPONDENT
NO.6)

     THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN
THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
DATED 22.03.2016 PASSED BY THE COURT OF II ADDL.
DISTRICT AND SESSIONS JUDGE, HAVERI (SITTING AT
RANEBENNUR) IN M.A. NO.6/2010 VIDE ANNEXURE-F IN
CONFIRMING THE ORDER DATED 10.02.2010 PASSED BY THE
COURT OF PRL. CIVIL JUDGE (SR. DN.) RANEBENNUR IN CIVIL
MISC. NO.41/2007 VIDE ANNEXURE-D, IN THE INTEREST OF
JUSTICE AND EQUITY.
                                 :5:


       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The defendant Nos.4 to 8, 10, 11, 14 to 17, two daughters

of the deceased defendant No.12 and son of the deceased

defendant No.9 in O.S. No.85/1996 on the file of the Civil Judge

(Sr. Dn.) and Prl. JMFC., Ranebennur, (henceforth referred to as

'the Trial Court') have filed this writ petition challenging the

Judgment dated 22.03.2016 passed by the Court of II Additional

District and Sessions Judge, Haveri (Sitting at Ranebennur)

(henceforth referred to as 'the Appellate Court') in M.A.

No.6/2010 confirming the Order dated 10.02.2010 passed by the

Court of the Prl. Civil Judge (Sr. Dn.), Ranebennur, in Civil Misc.

No.41/2007, which arose out of the ex parte Judgment and

Decree dated 01.01.2003 passed by the Trial Court in O.S.

No.85/1996.

2. The suit in O.S. No.85/1996 was filed for declaration

that the plaintiffs are the owners of the property bearing CTS

No.4081 of Ranebennur and for symbolic possession of the same

from defendant Nos.3 to 17 who are the heirs of the deceased

Laxmana. Alternatively, the plaintiffs sought for partition of their

1/3rd share in the family properties if it was held that there was

no prior partition amongst the predecessors of the plaintiffs and

defendants.

3. Defendant Nos.3 to 18 were served with the suit

summons. However, amongst them, defendant Nos.3 to 8, 10,

11 and 17 appeared through their counsel, Sri G.I. Surangi,

while defendant Nos.12 to 15 and 18 remained absent and were

placed ex parte before the Trial Court.

4. Defendant Nos.1 and 2 filed the written statement

supporting the case of the plaintiffs. Since there was no

opposition to the relief sought for by the plaintiffs, the suit was

decreed on 01.01.2003. Plaintiff Nos.1 to 3 filed Execution

Petition No.59/2003. In the said petition also, defendant Nos.3

to 8, 10 to 17 appeared through their counsel, Sri G.I. Surangi.

Since there was no objection against execution of the decree, the

Executing Court granted symbolic possession of the suit schedule

properties in favour of plaintiff Nos.1 to 3. At that stage,

defendant Nos.3 to 8 and 10 to 17 filed a petition in Civil

Miscellaneous No.41/2007 before the Court of Prl. Civil Judge

(Sr. Dn.), Ranebennur, under Order IX Rule 13 read with Section

151 of the Code of Civil Procedure (for short, 'the CPC') seeking

to set aside the ex parte Judgment and Decree dated 01.01.2003

passed by the Trial Court in O.S. No.85/1996 on the ground that

Sri G.I. Suranagi was stricken with cancer and expired on

03.04.2003 and was not able to defend the suit effectively.

Before the Trial Court in the Civil Miscellaneous Petition, a

witness was examined as PW.1 and he marked documents as

Exs.P1 to P4. On the other hand, plaintiff No.3 was examined as

RW.1 and she marked documents as Exs.R1 to R6. The Trial

Court after considering the evidence on record, held that the

defendant Nos.3 to 8 and 10 to 17 had not explained the delay in

filing the application for setting aside the ex parte decree dated

01.01.2003 passed in O.S. No.85/1996 and dismissed the civil

miscellaneous petition.

5. Being aggrieved by the aforesaid Order, deceased

defendant No.3 represented by her legal heirs i.e., defendant

Nos.10 and 11, defendant Nos.4 to 8, two daughters of the

deceased defendant No.12 and defendant Nos.13 to 17 filed

Miscellaneous Appeal No.6/2010 before the Appellate Court. The

said appeal also was dismissed in terms of the Judgment passed

by the learned District Judge dated 22.03.2016 by holding that

the appellants therein did not take effective steps to examine the

son of Sri G.I. Suranagi, namely, Sri Prashanth Suranagi, who

was an Advocate practicing before the Court.

6. Being aggrieved by the aforesaid Judgment, the

present writ petition is filed.

7. The Judgment and Decree of the Trial Court dated

01.01.2003 would disclose that the plaintiffs and defendants are

coparceners. Plaintiffs claimed that the properties bearing CTS

Nos.4075 and 4081 were purchased by Sri Hanamantappa under

two different sale deeds dated 14.09.1931 and 17.03.1928

respectively. They claimed that the suit properties were

possessed by Sri Hanamantappa and his three sons and during

the life time of Sri Hanamantappa, his elder son, Sri Puttappa,

separated from the family and started residing separately and

that Sri Hanamantappa effected a family arrangement allotting

northern portion of CTS No.4075 to the deceased Sri Puttappa

and allotted the remaining portion of the property bearing CTS

No.4075 and the property bearing CTS No.4081 amongst himself

and his two sons, Sri Laxmana and Sri Ramappa jointly.

Plaintiffs, therefore, sought for declaration of their title to the

property bearing CTS No.4081 and for symbolic possession of the

same from defendant Nos.3 to 17 in the suit.

8. Having regard to the fact that the learned counsel for

defendant Nos.3 to 8, 10, 11 and 17 in the suit, namely, Sri G.I.

Surangi was afflicted with cancer, it could not have been possible

for the said defendants to effectively resist the suit by filing

written statement. The Trial Court as well as the Appellate Court

instead of wasting time in considering an application under Order

IX Rule 13 of the CPC must have exercised discretion to allow

the application so that the defendant Nos.4 to 8 and 13 to 17,

defendant Nos.10 and 11, who are the legal heirs of the

deceased defendant No.3 and the legal heirs of the deceased

defendant No.12 could take an order on merits. It is seen from

the year 2007, till today, the matter is loitering in the Courts.

In that view of the matter, this Writ Petition is allowed.

The Judgment and Award dated 22.03.2016 passed by the Court

of II Additional District and Sessions Judge, Haveri (Sitting at

Ranebennur) in M.A. No.6/2010 and the Order dated 10.02.2010

passed by the Court of the Prl. Civil Judge (Sr. Dn.),

Ranebennur, in Civil Misc. No.41/2007 and the ex parte

Judgment and Decree dated 01.01.2003 passed by the Court of

Civil Judge (Sr. Dn.) and Prl. JMFC., Ranebennur, in O.S.

No.85/1996 are set aside and the said suit is restored to the file

of the Court of Principal Senior Civil Judge and JMFC.,

Ranebennur. Petitioners herein - defendant Nos.4 to 8, 10, 11,

14 to 17 and legal heirs of the deceased defendant No.12 and

legal heir of the deceased defendant No.9 are directed to file

their written statement without fail on the next date of hearing

before the Trial Court. The Trial Court is directed to expedite the

suit in O.S. No.85/1996 and dispose off the same expeditiously,

at any rate, not later than one year from the date of the

petitioners herein filing the written statement. The parties shall

appear before the Trial Court on 18.02.2022 and petitioners

herein shall file their written statement on 18.02.2022 before the

Trial Court without fail. This shall however be subject to the

petitioners herein paying a cost of Rs.15,000/- (Rupees Fifteen

Thousand) to the plaintiffs/respondent Nos.1 to 3 herein on the

next date of hearing before the Trial Court.

Sd/-

JUDGE

sma