Shri. Manjunath vs Smt. Irabasavva
2023 Latest Caselaw 1003 Kant

                             -1-




                                       RFA No. 100218 of 2022


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 17TH DAY OF JANUARY, 2023

                          PRESENT
     THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                            AND
            THE HON'BLE MR JUSTICE C M JOSHI
        REGULAR FIRST APPEAL NO.100218 OF 2022
                        (PAR/POS-)

BETWEEN:

1.    SRI. MANJUNATH S/O. SHIVAPPA KAMATAR
      AGE. 40 YEARS, OCC. AGRICULTURIST,
      R/O. GANGADHAR ONI,
      NAGAVI, TQ. DIST. GADAG - 582 101

2.    SMT. RATNAVVA ALIAS NEELAVVA
      W/O. CHANNABASAPPA SHIVARUDRANNAVAR
      AGE. 48 YEARS, OCC. HOME MAKER
      R/O.HORAKERI UMACHAGI,
      RQ. HUBBALLI,
      DIST. DHARWAD - 580 020

                                                 ...APPELLANTS

(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

AND:

1.    SMT. IRABASAVVA
      W/O. SHIVAPPA KAMATAR
      AGE. 75 YEARS, OCC. HOME MAKER
      R/O. BELADADI,
      TQ. DIST. GADAG -582 101

2.    SMT. SAVITRI W/O. RAMESH LADDI
      AGE. 43 YEARS, OCC. HOME MAKER
                              -2-




                                     RFA No. 100218 of 2022


     R/O. VIJAY NAGAR EXTENSION, HUBBALLI,
     DIST. DHARWAD - 582 101

3.   SMT. MANJAVVA W/O. SHANKARAGOUDA PATIL
     AGE. 40 YEARS, OCC. HOME MAKER
     R/O. TUPPADA KURAHATTI,
     TQ. ANNIGERI,
     DIST. DHARWAD - 582 201

                                                 ...RESPONDENTS

(BY SRI. SRINIVAS NAIK, ADVOCATE FOR R1 TO R3)

     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER XLI RULE 1 OF CPC., PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 19.07.2021 PASSED IN
O.S.NO.41/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG AND REMAND
THE MATTER TO THE TRIAL COURT FOR ITS DISPOSAL ON MERITS
BY PERMITTING THE APPELLANTS TO FILE THEIR WRITTEN
STATEMENT TO CONTEST THE SUIT, BY ALLOWING THE ABOVE
APPEAL AS PRAYED FOR WITH COST, IN THE INTEREST OF JUSTICE
AND EQUITY.

      THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION,
THIS DAY, C M JOSHI J., DELIVERED THE FOLLOWING:


                        JUDGMENT

1. Heard the learned counsel appearing for the

appellants and the learned counsel appearing for the

respondents.

2. The appellants are before this Court being

aggrieved by the exparte judgment and decree passed in

RFA No. 100218 of 2022

O.S.No.41/2021 by the learned Principal Senior Civil Judge

and Chief Judicial Magistrate, Gadag.

3. The only ground that is urged in the appeal

memo as well as during the submission by the learned

counsel appearing for the appellants is that though the

summons were served upon the defendants - appellants

herein, they were unable to appear and as such they were

placed exparte and thereafter the trial Court has disposed

off the matter in a hurried manner without affording any

opportunity for the defendants therein to cross-examine

PW.1.

4. It is obvious from the submissions as well as

from the records available before the Court that the

defendants were placed exparte as they did not appear

despite service of summons on them. Therefore, the

alternate remedy to approach the trial Court under Order

IX Rule 13 of the Code of Civil Procedure was always open

to them and to make out a case that opportunity was not

RFA No. 100218 of 2022

granted to them by explaining as to why they did not

appear before the trial Court despite service of summons.

5. If sufficient reasons are forthcoming for non-

appearance of the defendants before the trial Court

despite service of the summons, obviously the provisions

of Order IX Rule 13 of the Code of Civil Procedure are

applicable. Therefore, we are of the view that the

appellants/defendants be directed to approach the trial

Court under Order IX Rule 13 of the Code of Civil

Procedure and make out their case and urge their

contentions before it.

6. This appeal was filed before the District Court,

Gadag and on account of pecuniary jurisdiction, the same

has been resubmitted to this Court. The said appeal was

filed in time and therefore, the appellants would be at

liberty to approach the trial Court within four weeks from

today and if they approach the trial Court within the said

RFA No. 100218 of 2022

four weeks under Order IX Rule 13 of the Code of Civil

Procedure, the question of limitation would not arise.

7. Hence, with liberty to the appellants to

approach the trial Court under Order IX Rule 13 of Code of

Civil Procedure, within four weeks, the appeal stands

disposed off.

Sd/-

JUDGE

Sd/-

JUDGE

SH