Miyajan S/O Muktumsab Abbigeri vs Rahamatbi W/O Abdulsalam Bellary
2023 Latest Caselaw 5182 Kant

                                                  -1-
                                                         NC: 2023:KHC-D:8147
                                                             WP No. 101125 of 2023




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 2ND DAY OF AUGUST, 2023

                                                BEFORE

                           THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

                              WRIT PETITION NO. 101125 OF 2023 (GM-CPC)

                      BETWEEN:

                      1.   MIYAJAN S/O. MUKTUMSAB ABBIGERI,
                           AGE: 56 YEARS, OCC: BUSINESS & AGRICULTURE,
                           R/O: JAWALI BAZAAR, NEAR TANGAKOOT,
                           GADAG-582101.

                      2.   MOHAMMAD GHOUS S/O. MUKHTUMSAB ABBIGERI,
                           AGE: 54 YEARS, OCC: AGRICULTURE & BUSINESS,
                           R/O: JAWALI BAZAAR, NEAR TANGAKOOT,
                           GADAG-582101.

                      3.   NOOR AHAMED S/O. MUKTUMSAB ABBIGERI,
                           AGE: 51 YEARS, OCC: BUSINESS & AGRICULTURE,
                           R/O: JAWALI BAZAAR, NEAR TANGAKOOT,
                           GADAG-582101.

                                                                     ...PETITIONERS
                      (BY SRI SADIQ N. GOODWALA, ADVOCATE)
YASHAVANT
NARAYANKAR
                      AND:
Digitally signed by
YASHAVANT
NARAYANKAR
Location: High
Court of Karnataka,
Dharwad
                      1.   SMT. RAHAMATBI W/O. ABDULSALAM BELLARY,
                           AGE: 64 YEARS, OCC: AGRICULTURE & BUSINESS,
                           R/O: PLOT NO. 73, EX-SERVICEMAN COLONY,
                           BANALORE BYPASS ROAD, COWL BAZAAR,
                           BELLARY-583102.

                      2.   SMT. JAMEELABI W/O. KASHIMSAB TAHASILDAR,
                           AGE: 60 YEARS, OCC. AGRICULTURE & HOUSEHOLD,
                           R/O: NETAJI COLONY, GOKUL ROAD,
                           HUBLI-580030.

                      3.   SMT. JAINABI W/O. SIKANDARSAB SINDAG,
                           AGE: 59 YEARS, OCC: AGRICULTURE & HOUSEHOLD,
                           R/O. SETTLEMENT, GANDHINAGAR,
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                                    NC: 2023:KHC-D:8147
                                      WP No. 101125 of 2023




    GADAG-BETAGERI-582102.
    BETAGERI.
                                            ...RESPONDENTS
(BY SRI M.M. HIREMATH AND M.R. HIREMATH, ADVOCATES FOR R1
TO R3)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED
10.11.2022 PASSED BY ADDITIONAL SENIOR CIVIL JUDGE, GADAG
IN FDP NO.9/2014 ON I.A.NO.9 VIDE ANNEXURE-D.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The captioned petition is filed by the defendant feeling

aggrieved by the order of the FDP Court on I.A.No.9 seeking

leave to deposit Rs.50,000/- towards costs in view of the

remand order passed by this Court in RFA No.100037/2014.

The said application is rejected on the ground that the

petitioner has failed to deposit Rs.50,000/- costs imposed by

this Court while remanding the matter to the Trial Court.

2. On examining the records, I would find that there

is some laxness on the part of the petitioner in not

depositing Rs.50,000/- costs as directed by this Court in RFA

No.100037/2014. This Court while allowing the appeal has

set aside the judgment and decree of the Trial Court passed

NC: 2023:KHC-D:8147 WP No. 101125 of 2023

in O.S.No.52/2012 permitting the petitioner to file written

statement and contest the suit. Though the petitioner is

found to be guilty of not exercising due diligence, however I

am of the view that the petitioner is entitled for one more

opportunity. This Court has also taken cognizance of the fact

that pursuant to order passed by this Court, the petitioner

has deposited costs of Rs.50,000/- before this Court. If

petitioner has already deposited Rs.50,000/- of costs and

has a benefit of interim order, to meet the ends of justice,

the order under challenge needs to be set aside. Hence, the

following:

ORDER

i. The writ petition stands allowed.

ii. This petition is allowed and the order under challenge is set aside subject to petitioner paying additional costs of Rs.10,000/- to the respondent-plaintiff on the next date of hearing before the Trial Court.

iii. The Trial Court is directed to permit the petitioner to lead rebuttal evidence as

NC: 2023:KHC-D:8147 WP No. 101125 of 2023

indicated in earlier order passed by this Court in RFA No.100037/2014.

iv. The Trial Court shall expedite the matter and decide the case within three months.

v. The amount in deposit, shall be remitted to the Trial Court to enable the respondent-plaintiff to withdraw the same.

vi. It is needless to say that the Trial Court shall secure records in O.S.No.52/2012 to enable the petitioner to lead his evidence.

vii. It is made clear that the petitioner shall not drag on the matter by seeking unnecessary adjournments and shall conclude his evidence within six weeks from the date the trial Court takes up the matter for hearing.

viii. In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are disposed accordingly.

Sd/-

JUDGE