Karnataka High Court
Baban Rama Mangale vs Supriya @ Varsha Vijay Dorugade on 6 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100222 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100222 OF 2020 (PAR/POS)
BETWEEN:
1. BABAN RAMA MANGALE,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: 158, KHADE BAZAR,
SHAHAPUR, BELAGAVI-590001.
2. SARASWATI BABAN MANGALE,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: 158/C, KHADE BAZAR,
SHAHAPUR, BELAGAVI-590001
...APPELLANTS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
YASHAVANT
AND:
NARAYANKAR
1. SUPRIYA @ VARSHA VIJAY DORUGADE
AGE: 34 YEARS, OCC: HOUSEHOLD,
Digitally signed
by YASHAVANT R/O: SANTAJI GALLI, KANGRALI B. K.,
NARAYANKAR
TQ AND DIST: BELAGAVI-590006.
Date:
2023.12.08
10:04:56 +0530 2. SOMNATH ARUN MANGALETT
AGE: 31 YEARS, OCC: PVT. SERVICE,
R/O: H. NO. 1299, BASWAN GALLI,
SHAHAPUR, BELAGAVI-590001.
3. SHRINATH ARUN MANGALE
AGE: 28 YEARS, OCC: PVT. SERVICE,
R/O: H. NO. 1299, BASWAN GALLI,
SHAHAPUR, BELAGAVI-590001.
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RFA No. 100222 of 2020
4. PRIYANKA ARUN MANGALE
AGE: 24 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 1299, BASWAN GALLI,
SHAHAPUR, BELAGAVI-590001.
5. ARUN RAMA MANGALE
AGE: 71 YEARS, OCC: BUSINESS,
R/O: 158, KHADE BAZAR,
SHAHAPUR, BELAGAVI-590001,
SINCE DIED BY LRS RESPONDENT NO. 1 TO 4.
6. MANOHAR RAMA MANGALE
AGE: 69 YEARS, OCC: BUSINESS,
R/O: MARKENDYANAGAR, BELAGAVI-590002.
SHRI ARUN RAMA MANGALE
TRANSPOSED AS PLAINTIFF NO.5,
7. MALAN VASANT DALAVI,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 71, WAJEGALLI,
VADAGAON, BELAGAVI-590002.
RAJASHREE RAJU KHANDEKAR
AGE: 48
SINCE DECEASED BY HER LRS
8. RESHMA RAJU KHANDEKAR
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 247/C, MUJAWARGALLI,
SHIVAJI ROAD, BELAGAVI-590002.
9. SURAJ RAJU KHANDEKAR
AGE: 33 YEARS, OCC: SERVICE,
R/O: H. NO. 247/C, MUJAWARGALLI,
SHIVAJI ROAD, BELAGAVI-590002.
10. SWATI RAJU KHANDEKAR,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 247/C, MUJAWARGALLI,
SHIVAJI ROAD, BELAGAVI-590002.
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RFA No. 100222 of 2020
11. UMA RAJU KHANDEKAR
AGE: 27 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 247/C, MUJAWARGALLI,
SHIVAJI ROAD, BELAGAVI-590002.
12. SAROJA RAMKRISHNA PAVASHE
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O: H. NO. 215, YALLUR ROAD,
VADAGAON, BELAGAVI-590001.
13. RENUKA NAGESH SHEREGAR
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: PLOT NO.3153, SAHAYADRI COLONY,
JAYTUNMAL, BELAGAVI-590002.
14. KAVITA VITHAL JAKANNEY
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O: GOKAK ROAD, OPP. SIDDESHWAR MANDIR
MUCHANDI, BELAGAVI-590002.
15. RUKMINI YALLAPPA SAWANT
AGE: 71 YEARS, OCC: HOUSEHOLD,
R/O: MATH GALLI, HOSUR,
BELAGAVI-590002.
16. ANIL BAVAKU CHOUGULE
C/O BHAVKU BHARMANNA CHOUGULE,
AGE: 41 YEARS, OCC: SERVICE,
R/O: MANNUR, BELAGAVI-590001.
17. BHARTI @ SHUBDHA SANJYA CHOUGULE
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: MANNUR, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. V.VIDYA ADVOCATE FOR R1 TO R4;
(R1 TO R4 ARE LRS OF DECEASED R5);
NOTICE SERVED TO R6, R7, R12, R13, R14, R15, R16, R17;
R8 TO R11 ARE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF
CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
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RFA No. 100222 of 2020
DATED.19.08.2019 PASSED IN O.S.NO.54/2014 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL MAGISTRATE, BELAGAVI, AND SUIT MAY KINDLY BE
DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the counsel for appellants and also the counsel
appearing for respondents 1 to 4. Inspite of service of notice of
this appeal, the other respondents remained unrepresented.
2. This appeal is filed challenging the judgment and
decree passed in O.S.No.54/2014 granting 1/5th share in favour
of plaintiffs 1 to 5 out of 10/36th share in suit schedule 'A'
property. The counsel appearing for the appellants would
vehemently contend that though the appellants were served
with notice ordered by the Trial Court, they could not appear
before the trial Court and decree has been passed in the
absence of these two appellants, who are defendant No.3 and
12, respectively. He would also contend that the Trial Court
even in the absence of any written statement by these
appellants, failed to take note of the same. The suit of the
plaintiffs is not maintainable as per Section 8 of the Hindu
Succession Act, 1956. The counsel would also vehemently
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contend that the Trial Court ought not to have granted decree
when the suit itself is not maintainable and the same requires
interference by this Court.
3. Per contra, the learned counsel appearing for the
respondents 1 to 4 would vehemently contend that the suit was
filed in the year 2014 and though notices have been served on
these appellants, they remained unrepresented and hence, the
suit came to be disposed of in the year 2019. He would also
contend that after the disposal of the suit, the final decree
proceedings were also initiated and notice was also ordered. He
would vehemently contend that it is not the case of the
appellants that no notice has been served on them. Inspite of
service of notice issued by the Trial Court, they kept quiet and
only after grant of decree in the year 2019 that too after lapse
of more than five years from the date of service of notice by
the Trial Court, when the final decree proceedings were
initiated, these appellants have approached this Court.
4. Having heard the appellants' counsel and the
counsel appearing for the contesting respondents and also on
perusal of the judgment and decree of the Trial Court, it is clear
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that these appellants have been placed exparte before the Trial
Court. The fact that defendant No.3 has been served personally
and defendant No.12 has been served through substituted
service by paper publication is not in dispute. It is also
important to note that the sale deed was executed by the
husband in favour of his wife as power of attorney holders of
defendants 1 to 4. Having perused the material on record, it is
not in dispute that the appellants have not participated in the
proceedings and therefore, the matter requires to be remanded
back to the Trial Court to consider the same on merits.
However, taking note of the fact that the suit was filed in the
year 2014 and it was disposed of in the year 2019 and the
appellants have come up with this appeal in the year 2020 i.e.
almost after 5½ years of filing of the suit, the appellants were
not diligent in pursuing the matter and there is serious lapse on
their part. The Courts also cannot set aside the judgment of the
Courts below as per the whims and fancies of the appellants,
who approach the Court belatedly. The appellants must be
imposed with costs of Rs.80,000/- which would meet both the
ends of justice. Hence, it is appropriate to remand the matter
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back to the Trial Court for considering the same on merits.
Hence, the following:
ORDER
i) The appeal is allowed and matter is remanded
back to the Trial Court subject to payment of
cost of Rs.80,000/- by the appellants and the
said cost shall be deposited before the Trial
Court within a month from today.
ii) Out of the above cost, Rs.40,000/- is ordered to
be paid to the plaintiffs and remaining cost of
Rs.40,000/- shall vest with the State.
iii) Accordingly, The judgment and decree in
O.S.No.54/2014 dated 19.08.2019 passed by
the II-Additional Senior Civil Judge and CJM,
Belagavi is hereby set aside and matter is
remanded back to the Trial Court for fresh
disposal on merits.
iv) The parties are directed to appear before the
Trial Court on 08.01.2024 without expecting
separate notice from the Trial Court.
v) The appellants are given one month time from
08.01.2024 to file their written statement. If the
appellants fail to file their written statement
within the time stipulated, the judgment of the
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Trial Court in O.S.No.54/2014 dated
19.08.2019, which is remanded now, shall stand
restored and no need to proceed with the case.
vi) The Trial Court is also directed to dispose of the
suit within a period of one year from the date
08.01.2024.
vii) Registry is directed to send back the trial court
records forthwith to enable the Trial Court to
take up the matter on 08.01.2024.
In view of disposal of this appeal, pending interlocutory
applications, if any, do not survive for consideration and are
disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
