Monappa S/O Late Dattappa Sutar vs Smt. Chandrabhaga W/O Bhimashya ...
2022 Latest Caselaw 9044 Kant

                                 1

             IN THE HIGH COURT OF KARNATAKA

                      KALABURAGI BENCH

          DATED THIS THE 17TH DAY OF JUNE 2022

                            PRESENT

 THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                               AND

           THE HON'BLE MR.JUSTICE S. RACHAIAH

     REGULAR FIRST APPEAL No.200001/2022 (PAR/POS)

Between:

Monappa S/o Late Dattappa Sutar
Age: 44 Years, Occ: Agriculture
R/o: Itaga, Tq: Jewargi
Dist: Kalaburagi-585212
                                               ...Appellant

(By Sri B. Bhimashankar, Advocate)

And:

1.     Smt. Chandrabhaga
       W/o Bhimashya
       D/o Late Dattappa Sutar
       Age: 62 Years, Occ: Agriculture
       R/o: Chincholi Badadalli Village
       Tq: Afzalpur, Dist: Kalaburagi-585301

2.     Smt. Manamma @ Shantabai
       W/o Manohar
       D/o Late Dattappa Sutar
       Age: 46 Years, Occ: Agriculture
       R/o: Lad Chincholi
                                2

     Tq: Aland, Dist: Kalaburagi - 585302
                                                ...Respondents

(Sri Ananth S. Jahagirdar, Advocate for
Sri Ameet Hatti, Advocate for R1 & R2)

      This RFA is filed under Order 41 Rule 1 read with
Section 96 of the Code of Civil Procedure, 1908 praying to allow
the appeal and set-aside the judgment and decree passed in
O.S.No.29/2020 dated 16.04.2021 by the learned Senior Civil
Judge and JMFC at Jewargi or remand the matter for fresh
consideration directing the plaintiffs to include all necessary
parties and joint family properties and give an opportunity to
contest the case by filing written statement under the facts and
circumstances of the case.


      This RFA is coming on for Orders, this day, SREENIVAS
HARISH KUMAR J., delivered the following:

                         JUDGMENT

We have heard Sri B. Bhimashankar, learned counsel

for the appellant and Sri Ananth S. Jahagirdar, learned

counsel for Sri Ameet Hatti, learned counsel for respondent

Nos.1 and 2.

2. This appeal is filed by the defendant in

O.S.No.29/2020 on the file of Senior Civil Judge and JMFC,

Jewargi. By judgment dated 16.04.2021, the suit filed by the

respondents herein for partition was decreed holding that

each respondent was entitled to 1/3rd share in the land

bearing Sy.No.155/2 measuring 5 acres 38 guntas of Itaga

Village, Jewargi Taluka.

3. The appellant did not appear before the trial

Court inspite of service of summons. Therefore, he was

placed ex-parte and the suit was decided in his absence.

Learned counsel for the appellant Sri B. Bhimashankar

submits that summons was served on the appellant during

COVID-19 period and therefore, he could not go out of the

house. This resulted in appellant being placed ex-parte and

judgment pronounced against him.

4. We are of the opinion that, the appellant has

genuine reason for his not being able to appear before the

trial Court. According to the learned counsel

Sri B. Bhimashankar, the suit is bad for non-joinder of

necessary parties and non-inclusion of other items of the

joint family property. This argument shows that the

appellant has got valid defence to be taken. In this view, the

appeal deserves to be allowed and the matter deserves to be

remanded to the trial Court for disposal on merits. Hence,

the following:

ORDER

The appeal is allowed. The judgment dated

16.04.2021 in O.S.No.29/2020 passed by the Senior Civil

Judge and JMFC, Jewargi is set aside. The matter is

remanded to the trial Court for disposal in accordance with

law.

The appellant is hereby directed to pay cost of

Rs.2,000/- to the respondents.

The parties shall appear before the trial Court on

11.07.2022.

The appellant shall file his written statement on

11.07.2022 and pay cost to the respondents. In case, the

appellant fails to file written statement, the trial Court is at

liberty to proceed further.

In view of disposal of the main appeal, I.A.No.1/2021

filed for production of additional documents does not survive

for consideration and the same is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

RSP