Karnataka High Court
Malleshappa S/O Hanmavva Gonal vs Basappa S/O Thippanna ... on 12 October, 2022
Bench: R Natarajpresided Byrnj
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MFA No. 23661 of 2012
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 23661 OF 2012 (ISA-)
BETWEEN:
1. MALLESHAPPA S/O HANMAVVA GONAL
AGE: 62 YEARS, OCC: POSTMAN
R/O. HURALIKUPPI, TQ: SAVANUR
DIST: HAVERI
...APPELLANT
(BY SRI. G N NARASAMMANAVAR, ADVOCATE)
AND:
1. BASAPPA S/O THIPPANNA KENCHAPPANAVAR
AGE: 44 YEARS, R/O.YEREBELERI
TQ: RON, DIST: GADAG.
2. THE DEPUTY COMMISSIONER
GADAG TQ and DT: GADAG.
3. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS
GADAG TQ and DT: GADAG.
4. THE BLOCK EDUCATION OFFICER, SHIRAHATTI
TQ: SHIRAHATTI, DT: GADAG.
5. THE HEAD MASTER
GOVERNMENT HIGH SCHOOL, KADAKOL
AT: KADAKOL, TQ: SHIRAHATTI, DT: GADAG
...RESPONDENTS
(BY SRI. DEEPAK MAGANUR, ADV. FOR
SRI CHANDRASHEKAR P PATIL, ADVOCATE FOR R1,
SMT.GIRIJA S.HIREMATH, HCGP FOR R2 TO R5)
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MFA No. 23661 of 2012
THIS MFA IS FILED UNDER SECTION 299 OF THE INDIAN
SUCCESSION ACT, 1925, AGAINST THE ORDER DATED
25.06.2012 PASSED IN P & SC NO.2/2011 ON THE FILE OF THE
DISTRICT & SESSIONS JUDGE, GADAG, ALLOWING THE
PETITION FILED UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant herein claims to be the brother-in-law of
deceased Smt.Shivagangawwa who apparently was in service
as a Peon with the Department of Public Instructions
Government of Karnataka. She died while in service.
2. The appellant herein filed a suit in O.S.No.199/2008
for a declaration that he is the only legal heir of
Smt.Shivagangawwa. The said suit was decreed on
13.01.2009. In the meanwhile, the respondent No.1 had
initiated P & S.C.No.2/2011 claiming that Smt.Shivagangawwa
had executed a Will on 10.02.2008 and therefore, he was
entitled to the service benefits and the insurance polices of
Smt.Shivagangawwa. In the said proceedings i.e.,
P&S.C.No.2/2011, the appellant herein filed an application to
MFA No. 23661 of 2012
be impleaded on the ground that he had a interest to deny the
lawful execution of the Will. Since the said application was
rejected, he filed W.P.No.66878/2011 before this Court. The
said writ petition was disposed off by this Court in terms of the
order dated 19.06.2012 whereby the appellant was granted an
opportunity to pursue the application filed by him to implead
him in the proceedings. However, by the time the order passed
by this Court was intimated by the appellant to the Court in P &
S.C.No.2/2011, the same was disposed of on 25.06.2012.
Being aggrieved by the same, the present appeal is filed.
3. The learned counsel for the appellant submitted
that the order passed by this Court in W.P.No.66878/2011 was
on 19.06.2012 and he could not intimate the Court in P & S.C.
No.2/2011 in time and therefore, he was deprived of an
opportunity to contest the proceedings in P & S.C.No.2/2011
and therefore, he prayed for an opportunity to contest the
proceedings in P & SC No.2/2011.
4. Per contra, learned counsel for the respondent No.1
submitted that the appellant was not diligent in pursuing the
application in P & S.C.No.2/2011. He submits that the appellant
MFA No. 23661 of 2012
did not intimate the Court about the order passed in
W.P.No.66878/2011.
5. The order passed by this Court in
W.P.No.66878/2011 was on 19.06.2012. The application for
obtaining certified copy of the order was filed on 20.06.2012
and the copy was ready on 23.06.2012 and therefore, the
appellant could not have intimated the Court in P &
S.C.No.2/2011 about the order passed in W.P.No.66878/2011.
Under these circumstances, the appellant cannot be accused of
not being diligent in pursuing the application filed by him in
P & S.C.No.2/2011. Therefore, the impugned order passed by
the Court in P & S.C.No.2/2011 deserves to be set aside.
Hence, the following:
ORDER
The appeal is allowed.
The impugned order passed in P &
S.C.No.2/2021 by the District and Sessions Judge,
Gadag, is set-aside and case is restored on the file of
the said Court, which is directed to dispose of the
same after hearing the appellant in accordance with
law within a period of six months from the date of
receipt of certified copy of this order.
MFA No. 23661 of 2012
In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
JUDGE
JM, YAN
