Karnataka High Court
Neelawwa W/O Irappa Chikenkoppa vs Somanna W/O Basappa Chikenkoppa on 7 August, 2023
Bench: S.R. Krishna Bysrkkj
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NC: 2023:KHC-D:8470
WP No. 104617 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 104617 OF 2018 (GM-CPC)
BETWEEN:
1. NEELAWWA W/O. IRAPPA CHIKENKOPPA,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: LAKAMANGULE, TQ: YELBURGA, DIST: KOPPAL.
2. BHARAMAWWA W/O. RAMANNA BANDI,AGE: 55 YEARS,
OCC: AGRICULTURE, R/O: LAKAMANGULE,
TQ: YELBURGA, DIST: KOPPAL.
...PETITIONERS
(BY SRI. B.C.JNANAYYASWAMI, ADVOCATE)
AND:
1. SOMANNA W/O. BASAPPA CHIKENKOPPA,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: LAKAMANGULE, TQ: YELBURGA,
DIST: KOPPAL-583131.
2. NINGAJJA S/O. BASAPPA CHIKENKOPPA,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: LAKAMANGULE, TQ: YELBURGA, DIST: KOPPAL.
Digitally signed by NOW AT SARDAR GALLI, KOPPAL,
JAGADISH T R
Location: HIGH DIST: KOPPAL-583231.
COURT OF
KARNATAKA
Date: 2023.08.10 3. RAJANNA S/O. BASAPPA CHIKENKOPPA,
12:36:29 +0530
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: LAKAMANGULE, TQ: YELBURGA, DIST: KOPPAL.
NOW AT KUSHTAGI CROSS,
APMC ROAD, KOPPAL, DIST: KOPPAL-583231.
...RESPONDENTS
(BY SRI.ANAND R.KOLLI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, CALL FOR
RECORDS.QUASH THE IMPUGNED ORDER DATED 07.03.2018 IN
MISC.APPEAL NO.5/2015 PASSED BY HON'BLE SENIOR CIVIL JUDGE
AND JMFC YELBURGA AND IMPUGNED ORDER DATED:07.01.2015 IN
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WP No. 104617 of 2018
CIVIL MISC.NO.1/2006 PASSED BY HON'BLE CIVIL JUDGE (Jr.Dn.)
AND JMFC AT YELBURGA AS PER ANNEXUERS- RESPECTIVELY.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition by the defendants in OS No.59/2003 is
directed against the impugned order dated 7.1.2015 passed
in Civil Misc. No.1/2006 on the file of learned Civil Judge and
JMFC, Yelburga, which dismissed the said miscellaneous
petition and confirmed in MA No.5/2015 by the learned
Senior Civil Judge and JMFC, Yelburga.
2. Heard the learned counsel for the petitioners and
learned counsel for respondents No.1 to 3 and perused the
material on record.
3. The material on record discloses that the
respondents/plaintiffs instituted the aforesaid suit against
the petitioners/defendants for partition and separate
possession of their alleged share in the suit schedule
immovable properties. In the said suit, the
petitioners/defendants did not appear nor contest the suit
and accordingly, the trial Court decreed the suit in favour of
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WP No. 104617 of 2018
respondents/plaintiffs vide exparte judgment and decree
dated 29.03.2004. Subsequently, the petitioners filed Civil
Misc. No.1/2006 under Order IX Rule 13 of CPC seeking to
set-aside the said exparte judgment and decree. The said
miscellaneous petition having been opposed by the
respondents/plaintiffs, the trial Court proceeded to pass the
impugned order rejecting the miscellaneous petition.
Aggrieved by the same, the petitioners filed MA No.5/2015,
which was also dismissed by the first appellate Court vide
order dated 7.3.2018. Aggrieved by the impugned orders
passed by the trial Court as well as first appellate Court, the
petitioners are before this Court by way of present petition.
4. A perusal of the impugned orders passed by the
trial Court and the first appellate Court, whereby both the
Courts refused to set-aside the exparte judgment and decree
and did not provide one more opportunity in favour of the
petitioners to contest the suit on merits, will indicate that the
trial Court has adopted hyper technical approach and failed
to appreciate specific assertion on the part of the petitioners
that due to ill-health on the part of Bharamappa/defendant
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WP No. 104617 of 2018
No.2, it was not possible for the defendants to engage the
services of counsel and give necessary instructions to contest
the suit, which resulted in exparte judgment and decree.
Both the Courts failed to consider/appreciate the inability
and omission on the part of the petitioners to appear and
contest the suit on merits, which was due to bonafide
reasons and unavoidable circumstances and sufficient cause.
Under these circumstances, adopting justice oriented
approach, I deem it just and appropriate to set-aside the
impugned orders passed by the trial Court and the first
appellate Court by allowing Civil Misc.1/2006 and restoring
the suit to be disposed of within a stipulated time frame.
5. In the result, I proceed to pass the following:
ORDER
a) The writ petition stands allowed.
b) The impugned order dated 7.1.2015 passed in
Civil Misc.No.1/2006 by the trial Court and the
impugned order dated 7.3.2018 passed in MA
No.5/2015 by the first appellate Court are
hereby set-aside.
c) Consequently, Civil Misc. No.1/2006 is allowed
and exparte judgment and decree dated
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WP No. 104617 of 2018
29.03.2004 passed in OS No.59/2003 by the
learned Civil Judge (Jr.Dn.), Yelburga is hereby
set-aside and the said suit is restored to the file
of the trial Court subject to the petitioners
paying costs of Rs.5,000/- to the respondents on
the next date of hearing before the trial Court.
d) Both petitioners as well as respondents are
directed to appear before the trial Court on
4.9.2023 without awaiting further notice from
the trial Court.
e) The petitioners/defendants are directed to file
their written statement before the trial Court on
4.9.2023 without seeking adjournment under
any circumstances whatsoever.
f) The Trial Court is directed to dispose of the suit
within a period of six months from 4.9.2023.
Sd/-
JUDGE
JTR
