Siddappa S/O Banashappa Hadimani vs Mallanagouda S/O A/F Bailappa ...
2023 Latest Caselaw 5828 Kant

                               IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                    DATED THIS THE 22nd DAY OF AUGUST, 2023

                                                       BEFORE

                                     THE HON'BLE MR JUSTICE C. M. POONACHA

                                  CIVIL REVISION PETITION NO. 100028 OF 2021
                              BETWEEN
                              SIDDAPPA S/O BANASHAPPA HADIMANI
                              AGE. 77 YEARS, OCC. AGRICULTURE,
                              R/O. ANGARAGATTI, TQ. RATTIHALLI,
                              DIST. HAVERI, P C NO.581109.
                                                                        ...PETITIONER

                              (BY SRI. P.G. MOGALI, ADV.)
           Digitally signed
           by                 AND
           SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH
           Date:              MALLANAGOUDA S/O A/F BAILAPPA HADIMANI
           2023.08.23
           15:33:38 +0530     AGE. 81 YEARS, OCC. AGRICULTURE,
                              R/O. ANGARAGATTI, TQ. RATTIHALLI,
                              DIST. HAVERI,
                              NOW R/O. NIRANNA NILAYA,
                              VINAYAKA NAGAR, BEHIND KEB,
                              OFFICE SHIKARIPUR, TQ. SHIKARIPUR.
                              DIST. SHIVAMOGGA, P C NO.581127.

                                                                       ...RESPONDENT

                              (BY SRI. MAHESH WODEYAR, ADV.)

                                   THIS CIVIL REVISION PETITION IS FILED UNDER SEC.115 OF
                              CPC, PRAYING TO SET ASIDE THE JUDGMENT PASSED IN
                              M.A.NO.4/2020 DATED 01.04.2021 BY THE SENIOR CIVIL JUDGE AND
                              JUDICIAL MAGISTRATE FIRST CLASS, HIREKERUR AND RESTORE THE
                              JUDGMENT AND DECREE PASSED IN O.S.NO.52/2004 DTD.01.09.2021
                              BY THE PRINCIPAL CIVIL JUDGE, HIREKERUR ALONG WITH HEAVY
                              COST THROUGH OUT.
                               2



      THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED ON 04.08.2023, COMING ON FOR PRONUNCEMENT OF
ORDER, THIS DAY, THIS COURT PRONUNCED THE FOLLOWING:

                          ORDER

The present petition is filed seeking for the following

relieves;

"Wherefore it is humbly prayed that this Hon'ble Court be pleased to set-aside the judgment passed in M.A.No.4/2020 dated 01.04.2021 by the Hon'ble Senior Civil Judge and JMFC, Hirekerur and Restore the Judgment and Decree passed in O.S. No.52/2004 dated 01.09.2012 by the Hon'ble Principal Civil Judge, Hirekerur along with heavy cost through out in the interest of justice and equity."

2. It is the case of the petitioner that O.S.

No.52/2004 was instituted against the respondent for

declaration of title. Though, the respondent was served

with the suit summons, he was placed exparte and he did

not contest the suit. On the basis of the evidence adduced

by the petitioner, the suit was decreed on 01.09.2012.

That after lapse of more than three years, the respondent

filed Civil Miscellaneous No.16/2015 under Order IX Rule

13 R/w Section 151 of the C.P.C., to set aside the exparte

Judgment and decree passed in O.S.No.52/2004 and along

with the said petition, an application was filed under

Section 5 of the Limitation Act to condone the delay. The

trial Court by its order dated 08.06.2020, dismissed the

application filed under Section 5 of the Limitation Act, to

condone the delay and consequently, dismissed C.Misc.

No.16/2015.

3. Being aggrieved, respondent filed

M.A.No.04/2020, before the First Appellate Court and the

petitioner entered appearance in the said proceedings and

contested the same. The First Appellate Court by its order

dated 01.04.2021 allowed the petition and passed the

following order.

• The miscellaneous appeal filed by the appellant under Order 43 Rule 1(d) of CPC is hereby allowed with cost of ₹3,000-00.

• Consequently, order passed by the Prl. Civil Judge and JMFC, Hirekerur in Civil Mis.No.16/2015 dated 08-06-2020 is hereby set aside.

• Virtually the exparte judgment and decree passed in OS.No.52/2004 is hereby set aside and it is hereby restored.

• The Trial Court is directed give an opportunity to the defendant to file his written statement and to contest the suit.

• The Trial Court is also directed to give an opportunity to both parties to lead both oral and documentary evidence on their behalf.

• Hereby parties to the appeal are directed to appear before the Trial Court on 07-06-2021 without there being notice to them from Trial Court.

• If parties are absent, then the Trial Court can proceed with the matter in accordance with law.

• Office is hereby directed to return back the Trial Court records along with copy of this order to the Trial Court forthwith.

• The petitioner is directed to pay cost to the respondent before the Court trial court on 07-06- 2021 itself.

4. Being aggrieved, the present petition is filed.

5. Learned counsel for petitioner Sri. P.G.Mogali,

assailing the order passed by the First Appellate Court,

vehemently contends that the suit summons was duly

served on the respondent on 27.07.2004 and that the trial

Court having recorded a categorical finding that the

respondent had knowledge of the proceedings and also

had not adduced the satisfactory evidence that to explain

the delay, the trial Court had rightly rejected the

application and petition filed by the respondent, which

order ought not to have been interfered by the First

Appellate Court.

6. Per contra, the learned counsel for respondent

Sri. Mahesh Wodeyar, justifying the order passed by the

First Appellate Court submits that First Appellate Court had

re-appreciated the entire factual matrix and having noticed

that the petitioner was on Government duty and was

residing at various places and was not residing at

Angaragatti village, at the time of filing of the suit in

O.S.No.52/2004, had rightly interfered with the order

passed by the trial Court and afforded an opportunity to

contest the suit on merits.

7. I have considered the submissions made by

both the learned counsel and perused the materials

available on record. The question that arise for

consideration is:

Whether the order dated 01.04.2021 passed by the trial Court is liable to be interfered with?

8. It is forthcoming from the material on record

that the O.S.No.25/1986 and OS. No.52/2004, were

instituted between the parties in respect of the same suit

schedule properties and in the said suits exparte Judgment

and decree was passed. The First Appellate Court has

further in detail had considered the fact that in suit

OS.No.52/2004, the address of the respondent was shown

as residing at Angaragatti village and the report of the

process server which is not noticed before the trial Court

discloses that the respondent is residing at Shikaripur

since 20 years. It is further noticed that the respondent

was in Government duty and was residing at various

places and hence, the Court had recorded a categorical

finding that the summons in O.S.NO.52/2004 was not

served on the respondent.

9. The First Appellate Court has after re-

appreciating the factual matrix of the matter and having

noticed the judgment of this Court in the case of

Rangappa and Others Vs. Nagappa and Others

reported in ILR 2016 Karnataka 4463 wherein it has

been held that "the rights of the parties should not be

deprived in respect of immovable property only on

technicality - when substantial justice and technical

considerations are pitted against each other, only the

substantial justice should prevail over the technical

consideration", has rightly, having noticed the fact that in

two earlier litigations between the parties an opportunity

to contest the suit on merits was not available and having

regard to the fact that valuable rights in immovable

property are required to be adjudicated between the

parties, the First Appellate Court has rightly passed the

order dated 01.04.2021.

10. The First Appellate Court, having noticed that

the summons was not duly served, has rightly appreciated

the case of the parties as also having regard to the fact

that it is expedient that the suit was required to be

adjudicated on its merits after giving an opportunity to the

respondent/defendant to contest the case of the

petitioner/plaintiff in view of the fact that earlier litigations

were also not contested and valuable rights in immovable

properties are required to be adjudicated.

11. The petitioner has failed to demonstrate that

the First Appellate Court has exercised a jurisdiction not

vested in it or failed to exercise a jurisdiction so vested or

acted in exercise of its jurisdiction illegally or with material

irregularity.

12. In view of the aforementioned the question

framed for consideration is answered in the negative. The

petition is dismissed as being devoid of merits.

No costs.

(Sd/-) JUDGE

PJ