Karnataka High Court
Veerupakshayya S/O Gangayya ... vs Smt.Basavva D/O Mallayay Tegur @ ... on 16 November, 2022
Bench: R Nataraj
-1-
MFA No. 104842 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 104842 OF 2019 (CPC)
BETWEEN:
VEERUPAKSHAYYA
S/O GANGAYYA HANCHINALMATH
SINCE DECEASED BY HIS LR
1(a) BASAYYA S/O VIRUPAKSHAYYA
HANCHINALMATH
AGE: 60 YEARS, OCC: AGRICULTURE.
1 BASAYYA S/O VIRUPAKSHAYYA
HANCHINALMATH
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O DYAMAVANGUDI ONI,
AT: POST YADWAD, DHARWAD-581206
2. NINGAYYA S/O GANGAYYA HANCHINALMATH
AGE:71 YERS,
OCC: AGRICULTURIST,
R/O DYAMAVANGUDI ONI,
AT: POST YADWAD
DHARWAD-581206
3. BASAYYA S/O GANGAYYA HANCHINALMATH
AGE:63 YEARS,
OCC: AGRICULTURIST,
R/O DYAMAVANGUDI ONI,
AT: POST YADWAD
DHARWAD-581206
-2-
MFA No. 104842 of 2019
4. BASAVVA W/O CHENNABASAYYA HANCHINALMATH
AGE:61 YEARS,
OCC: AGRICULTURIST,
R/O DYAMAVANGUDI ONI,
AT: POST YADWAD
DHARWAD-581206
APPELLANTS
(BY SRI. SHRIHARSH A NEELOPANT AND SRI AVINASH S.
MALIPATIL, ADVOCATES)
AND:
1. SMT.BASAVVA D/O MALLAYYA TEGUR @ TEGURMATH
AGE ABOUT: 68 YEARS,
OCC: HOUSEHOLD WORK
R/O AT: POST KELGERI,
DHARWAD
2. SMT. NEELAVVA D/O MALLAYYA TEGUR @
TEGURMATH
(AFTER MARRIAGE SMT. NEELAVVA W/O BASAYYA
KELGINMANI @ SALIMATH)
AGE ABOUT: 61 YEARS
OCC: HOUSEHOLD WORK
R/O AT: POST GOVANKPOOA, DHARWAD
SHRI. MALLAYYA S/O RUDRAYYA TEGUR
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
RUDRAYYA S/O MALLAYYA TEGUR (EXPIRED)
(AS SUCH RUDRAYYA'S LEGAL HEIRS ARE
BROUGHT ON RECORD AS 3(a) (i) and 3(a)(ii))
3. SMT. NEELAVVA W/O RUDRAYYA TEGUR
AGE:MAJOR
OCC: HOUSEWIFE
-3-
MFA No. 104842 of 2019
AT POST: KELGERI,
DHARWAD 580 007
4. SMT. TUNGAVVA D/O RUDRAYYA TEGUR
AGE: MAJOR
OCC: NOT KNOWN,
AT POST: KELGERI,
DHARWAD 580 007
...RESPONDENTS
(BY SMT. ARCHANA MAGADUM, ADVOCATE FOR RESPONDENT
NOS.1 TO 3
SERVICE OF NOTICE TO RESPONDENT NO.4 IS HELD
SUFFICIENT VIDE ORDER DATED 16.11.2022)
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(d) OF
THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE ORDER
DATED 07.11.2019 PASSED IN MISC. NO.3/2018 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, DHARWAD, DISMISSING THE SUIT FILED UNDER
ORDER 9 RULE 4 READ WITH SECTION 151 OF THE CPC.
THIS APPEAL COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the petitioners in Misc.
No.3/2018 on the file of the Principal Senior Civil Judge and
CJM., Dharwad, (for short 'the Trial Court') by which their
petition filed under Order IX Rule 4 read with Section 151 of
MFA No. 104842 of 2019
the Code of Civil Procedure, 1908 (for short, 'the CPC') was
rejected.
2. The suit in O.S. No.24/2015 was filed by the father
of the petitioner No.1(a) and petitioners Nos.2 to 4 in Misc.
No.3/2018 / plaintiffs in the suit for substantive reliefs to
declare that they were the only legal heirs of deceased
Gadigevva to succeed to the suit schedule property as her legal
heirs and to declare that the mutation entry No.1976 in respect
of the suit property was null and void and not binding on the
plaintiffs. They also sought for a declaration that the gift deed
executed by the defendant No.1 in favour of defendant No.2
was null and void and for the consequential relief of possession
of the suit schedule property.
3. It is stated that when the suit was listed for
evidence of the plaintiffs, the same was dismissed for non-
prosecution on 27.11.2017, following which, the petition was
filed under Order IX Rule 4 of the CPC., for restoration of the
suit. The Trial Court after recording the evidence of the
parties, dismissed the petition on the ground that the
petitioners failed to assign proper reasons as to why they could
MFA No. 104842 of 2019
not lead evidence and that Exs.P1 to P3 indicated that none of
the petitioners were interested in conducting the suit.
4. Being aggrieved by the same, the present petition
is filed.
5. Learned counsel for the appellants submitted that
the plaintiffs examined PW.1 on 07.11.2015 and marked
documents as Exs.P1 to P7. However, the defendants filed an
application on 27.11.2015 seeking permission to file their
written statement and the same was allowed by the Trial Court
consequent to which the Trial Court framed issues on
03.04.2017 and case was listed for evidence of the plaintiffs.
However, on account of ill health of Smt. Sangavva Hanchinal,
wife of plaintiff No.1, they could not lead evidence. On
27.11.2017, the learned counsel for the plaintiffs was out of
station and there was no representation for them before the
Trial Court and hence, the Trial Court dismissed the suit for
non-prosecution. Learned counsel submits that since the
plaintiffs have sought for substantive reliefs, they may be
afforded an opportunity to prosecute the suit on such terms as
may be felt reasonable.
MFA No. 104842 of 2019
6. The learned counsel for the respondent Nos.1 to 3
on the other hand, submitted that the petitioners have been
consistently pursuing one or the other proceedings before the
Revenue authorities and were not diligently prosecuting the suit
pending before the Trial Court. She further submitted that the
plaintiffs have no subsisting right, title and interest in the suit
schedule property and no purpose would be served in restoring
the suit.
7. I have considered the submissions made by the
learned counsel for the petitioners and the learned counsel for
the contesting respondents.
8. It is not in dispute that the suit is filed for
substantive reliefs, namely, to declare that the plaintiffs are the
owners of the suit schedule property and also to set at naught
a gift deed allegedly executed by defendant No.1 in favour of
defendant No.2. The observations made by the Trial Court in
the impugned Order would clearly indicate the fact that the
plaintiffs have been lethargic and have shown no interest in
pursuing the suit. This Court does not see any reason to
disbelieve the findings of the Trial Court. Nonetheless, having
regard to the fact that the petitioners would be condemned
MFA No. 104842 of 2019
unheard on a technical ground, it is appropriate that a final
opportunity is granted to them to pursue the suit, on the
condition that they shall pay the cost to the defendants so as to
compensate them for the time lost in the proceedings. It is
also appropriate to rein in the petitioners / appellants herein to
ensure that they participate in the proceedings without any
further delay.
9. In that view of the matter, the appeal is allowed
and the impugned Order dated 07.11.2019 passed by the
Principal Senior Civil Judge and CJM., Dharwad, in Misc.
No.3/2018 is set aside and the suit in O.S. No.24/2015 is
restored to the file of the Trial Court subject to the condition
that the appellants herein shall pay cost of Rs.50,000/-
(Rupees Fifty Thousand) to the respondents herein /
defendants before the Trial Court on the next date of hearing.
The parties shall appear before the Trial Court on
30.11.2022 and the plaintiffs shall lead their evidence on the
said day without fail and mark all documentary evidence in
their custody. The Trial Court shall record cross-examination of
PW.1 on the same day preferably and if not, by 07.12.2022. It
shall further record evidence of the plaintiffs, if any, by or
MFA No. 104842 of 2019
before 28.02.2023 and record evidence of the defendants by
31.03.2023 and dispose off the aforesaid suit within a period of
three months from the date of conclusion of the arguments in
the suit.
(Sd/-)
JUDGE
SMA
