Karnataka High Court
Smt Mamataj W/O Appasab Attar vs Smt Khatunabi W/O. Imamsab ... on 10 August, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:8685
MFA No. 100109 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 100109 OF 2023
(CPC)
BETWEEN:
1. SMT. MAMATAJ
W/O APPASAB ATTAR
AGED ABOUT 53 YEARS,
OCC: H/W,
R/AT: HULAKUND,
TQ: RAMADURGA,
DIST: BELAGAVI-591123.
2. SMT. SHAKEELA
W/O BABASAB SULIKERI
AGED ABOUT 51 YEARS,
OCC. H/W
R/AT: KILLA-HOSKOTI,
Digitally
TQ: MUDHOL,
DIST: BAGALKOT-587301.
signed by
VIJAYALAXMI
VIJAYALAXMI M BHAT
M BHAT Date:
2023.08.16
10:41:55 -
0700
...APPELLANTS
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
SMT. KHATUNABI
W/O IMAMSAB KARANACHI
SINCE DECEASED BY HER LRS,
1.
SRI. APPALAL
S/O IMAMSAB KARANACHI,
-2-
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MFA No. 100109 of 2023
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE,
R/AT: KILLA-HOSKOTI,
TQ: MUDHOL,
DIST: BAGALKOT-587301.
2. SRI. SHIVAPPA
S/O GURUBASAPPA NARAGUND
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE,
R/AT: KILLA-HOSKOTI,
TQ: MUDHOL,
DIST: BAGALKOT-587301.
...RESPONDENTS
(BY SRI. R.K.KULKARNI, ADVOCATE FOR R2;
R1-NOTICE SERVED)
THIS MFA IS FILED U/O.43 RULE 1(T) OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE ORDER DATED 23.09.2022,
PASSED IN CIVIL MISC. NO. 5045/2021 ON THE FILE OF THE
I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT
TO SIT AT JAMKHANDI, DISMISSING THE PETITION FILED
UNDER ORDER 41 RULE 19 READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:8685
MFA No. 100109 of 2023
JUDGMENT
This appeal is filed against rejection of an application
under order XLI Rule 19 of Civil Code of Procedure
(hereinafter referred to as 'CPC', for short). The appellants
filed an application to recall order dated 01.02.2019
wherein the RA no.24/2018 field by the present appellants
before the First Appellate Court was dismissed for non-
prosecution. The application was resisted by the
respondents on the premise that the appellants have not
made out a case for recalling the order dated 01.02.2019.
2. Sri Mrutyunjaya Tata Bangi, learned counsel
appearing for the appellants would submit that the
plaintiffs had filed a suit for partition and separate
possession in OS no.79/2011 on the file of the Senior Civil
Judge, Mudhol. The said suit was erroneously dismissed
by the trial Court despite the plaintiffs establishing their
right over the suit schedule properties. The plaintiffs have
filed an appeal in RA no.24/2015 and on the appointed
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MFA No. 100109 of 2023
date, there was no representation on behalf of the
appellants and the Appellate Court was not justified in
dismissing the appeal vide order dated 01.02.2019.
3. The learned counsel for the respondents would
submit that the First Appellate Court is justified in
dismissing the appeal for non prosecution as there was no
representation when the case was called on 01.02.2019.
By that time, appeal was more than 4 years old and he
would further submits that the valid grounds are not made
out in an application filed under Order XLI Rule 19 of CPC
to recall the order dated 01.02.2019. Accordingly, would
submit that there is no merit in the appeal and appeal has
to be dismissed.
4. This Court has considered the contentions
raised at the Bar.
5. Admittedly the appeal is filed challenging the
judgment and decree in OS no.79/2011 filed on the file of
the Civil Judge, Mudhol. When the case was called on
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MFA No. 100109 of 2023
01.02.2019, there was no representation. Learned
counsel for the appellants would submit that the counsel
for the appellants was engaged in another case and as
such, he could not appear when the case was called on
01.02.2019. Though it is well settled position of law that
Advocate engaged in another Court is not a ground to seek
restoration of the case, incase same is dismissed for want
of representation, it is also equally true that the advocate
cannot appear in two places simultaneously at a given
point of time.
6. Considering the fact that the case is one for
partition and separate possession where plaintiffs are
claiming right over the immovable properties, this Court is
of the view that an opportunity should be given to the
present appellants to contest their appeals on merits.
However, since there was no representation on behalf of
the appellants on the appointed date, the respondents had
to undergo ordial of contesting the application under Order
XLI Rule 19 of CPC as well as the preset appeal. Thus
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MFA No. 100109 of 2023
appellants should be directed to pay reasonable cost in
favour of the respondents.
7. Hence the following:
ORDER
i. The appeal is allowed.
ii. The impugned order 23.11.2022 passed
in Civil Misc.No.5045/2021, on the file of
the I Additonal District Judge, Bagalkot
sitting at Jamkhandi, is set aside. RA
no.79/2011 is restored to file, subject to
the appellants paying cost Rs.5,000/- to
the respondents.
iii. The parties shall appear before the
jurisdictional District Court on
04.09.2023 without waiting for further
notice from the District Court.
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MFA No. 100109 of 2023
iv. It is also made clear that, the plaintiff
shall cooperate with the early disposal of
the case.
Sd/-
JUDGE
VMB
