Smt. Bibijan W/O Late Abdulmajid ... vs Mehaboobi W/O Deceased Abdul ...
2022 Latest Caselaw 8977 Kant

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                                                        MFA No. 100568 of 2022


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                             DATED THIS THE 16TH DAY OF JUNE, 2022
                                            PRESENT
                            THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
                                               AND
                             THE HON'BLE MR JUSTICE P.KRISHNA BHAT
                                  MFA NO. 100568 OF 2022 (FC)
                   BETWEEN:

                         SMT. BIBIJAN W/O LATE ABDULMAJID SHIRAHATTI
                         AGE ABOUT 45 YEARS, OCC HOUSEWIFE,
                         R/O. 143/C VIVEKANAND NAGAR,
                         6TH CROSS, HATALAGERI ROAD,
                         BETAGERI, DIST GADAG-582101

                                                                   ...APPELLANT
                   (BY SRI. K ANANDKUMAR, ADVOCATE)

                   AND:

                   1.    MEHABOOBI W/O DECEASED ABDUL MAJID
                         SHIRAHATTI AGE 47 YEARS,
                         OCC HOUSEHOLD, R/O. JAVALA GALLI
                         BEAR ABBIGERI, FACTORY GADAG

                   2.    DIVISIONAL PERSONNEL OFFICER
                         DRM/P OFFICE, SOUTH WESTERN
                         RAILWAY KESHWAPUR RAILWAY
Digitally signed
by JAGADISH T
R                        STATION ROAD,HUBBALLI
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD
Date:
2022.06.18
                   3.    DIVISIONAL MANAGER
10:12:52 +0530
                         RAILWAY KESHWAPUR
                         RAILWAY STATION ROAD, HUBBALLI

                   4.    GENERAL MANAGER
                         OF REGIONAL OFFICE RAILWAY
                         BENGALURU

                                                                ...RESPONDENTS
                   (BY SRI.H.N. GULAREDDI, ADVOCATE FOR R1)
                   (BY SRI. AJAY U PATIL, ADVOCATE FOR R2-R4)
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                                     MFA No. 100568 of 2022


     THIS MFA FILED U/S.19(1) OF THE FAMILY COURT ACT
READ WITH ORDER 41 RULE 1 OF CPC. PRAYING TO ALLOW THIS
APPEAL AND BE PLEASED TO SET ASIDE THE JUDGMENT AND
DECREE DATED 05.12.2018 PASSED BY THE LEARNED PRINCIPAL
JUDGE, FAMILY COURT AT GADAG IN O.S.NO.16/2018 IN THE
INTEREST OF JUSTICE AND EQUITY.
     THIS APPEAL COMING ON FOR ORDERS, THIS             DAY,
P. KRISHNA BHAT J., DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is filed calling in question the correctness

of judgment and decree dated 05.12.2018 passed in OS

No.16/2018 by the learned Prl. Judge, Family Court,

Gadag (for short, 'Family Court').

2. Smt. Mehaboobi, who is respondent No.1 in this

appeal instituted the suit in question seeking declaration

against the present appellant and rest of the respondents

that she is legally wedded wife of the deceased Abdul

Majid Shirahatti and further that she is entitled to receive

family pension and other service benefits of said deceased

Abdul Majid Shirahatti and for further restraining the

appellant herein from interfering in the affairs of the

deceased Abdul Majid Shirahatti.

MFA No. 100568 of 2022

3. In the said suit, the appellant was placed

exparte. Respondents No.2 and 4 who appeared before

the learned Family Court and were represented by learned

counsel did not file their written statement.

4. Respondent No.1 examined herself as PW1 and

Ex.P1 to P9 were marked. No witnesses were examined

for the defendants before the learned Family Court. After

hearing, suit of respondent No.1 was decreed and

declaration as sought for was granted with the injunction

as against the present appellant.

5. Learned counsel appearing for the appellant

mainly contended that the appellant is legally wedded wife

of late Abdul Majid Shirahatti and respondent No.1 herein

filed suit for declaration showing wrong address of the

appellant and therefore, she was placed exparte. He

further submitted that Ex.P7 clearly showed that

respondent No.1 herself had produced document before

the learned Family Court showing address of the appellant

MFA No. 100568 of 2022

as resident of Vivekanand Nagar and not of Rajivgandhi

Nagar. He further raised various other contentions.

6. Learned counsel for respondent No.1, per

contra, contended that the appellant herein inspite of

receiving summons had remained absent and therefore,

the learned Family Court had rightly placed her exparte.

He further submitted that upon consideration of the

materials produced, the learned Family Court decreed the

suit and therefore, same should not be interfered with.

7. After making considerable submissions, both

learned counsel requested that the matter may be

remanded to the learned Family Court for fresh

consideration after permitting rival sides to adduce their

respective evidence. Accepting the said submission on

both sides, we proceed to pass the following:

ORDER

a) Appeal is disposed off by remanding the matter for fresh consideration by the learned Family Court by restoring OS No.16/2018 to its file and he shall further afford opportunity to rival sides to file

MFA No. 100568 of 2022

such further pleadings as they may feel necessary and permit them to lead fresh evidence/further evidence touching the merits of the matter and dispose off the case in accordance with law.

b) However, order regarding release of terminal benefits shall be done subject to final outcome in the suit.

c) Both parties to appear before the learned Family Court on 06th July, 2022 at 11 a.m. without expecting further notice from the said Court.

d) Transmit the records to the learned Family Court forthwith.

e) All contentions of the parties are kept open.

f) Pending applications, if any, do not survive for consideration, and accordingly, they are disposed off.

Sd/-

JUDGE

Sd/-

JUDGE

JTR