Karnataka High Court
Gurulingappa S/O Neelkantrao ... vs Archana W/O Bannappa Bankur on 11 July, 2023
Bench: N.S.Sanjay Gowdapresided Bynssgj
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NC: 2023:KHC-K:5168
RFA No. 200088 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR FIRST APPEAL NO. 200088 OF 2023 (SP)
BETWEEN:
GURULINGAPPA S/O NEELKANTRAO PATIL
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O KONKANALLI VILLAGE,
TQ. SEDAM, DIST : KALABURAGI
NOW RESIDING AT
C/O MAHADEVAPPA BHIMALLI,
NEAR EKNAMA MASJID, JAGAT,
KALABURAGI-585102.
...APPELLANT
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE)
AND:
Digitally signed by
RAMESH MATHAPATI
SMT. ARCHANA W/O BANNAPPA BANKUR
Location: HIGH
COURT OF
AGE: 29 YEARS, OCC: AGRICULTURE,
KARNATAKA
R/O HOSALLI, TQ. SEDAM,
DIST. KALABURAGI-585222.
...RESPONDENT
(BY SRI RAVI BHEEMSINGH, ADVOCATE)
THIS RFA IS FILED U/O 41 RULE 1 AND 2 R/W SEC. 96
OF CPC, PRAYING TO ALLOW THIS APPEAL AND TO SET ASIDE
THE JUDGMENT AND DECREE DATED 06.04.2021 PASSED IN
O.S. NO. 73/2018 ON THE FILE OF SENIOR CIVIL JUDGE AND
J.M.F.C. AT SEDAM, AND TO PASS TO GRANT ANY OTHER
APPROPRIATE RELIEF AS MAY BE DEEMED JUST AND
NECESSARY.
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NC: 2023:KHC-K:5168
RFA No. 200088 of 2023
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal arise out of a suit which had been
instituted for specific performance and which had been
decreed without there being a contest by the defendant.
2. Learned counsel for the appellant would be seriously
prejudiced since he would be losing his land without there
being a defence put up to the case set up by the
respondent. He submits that for the reasons beyond the
control of appellant, the defendant could not defend
himself. He also submits that in respect of the very same
land a similar judgment granting an ex-parte decree was
set aside by the Division Bench of this Court in RFA
No.200031/2023 and on the same analogy, this appeal
may also be allowed.
3. Learned counsel for the respondent on the other
hand stoutly opposed this request. He submitted that in
the case dealt with by the Division Bench, the appellant
therein was placed ex-parte, whereas, in the present case
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RFA No. 200088 of 2023
the appellant had entered appearance and had chosen not
to contest the proceedings.
4. Having regard to the fact that the decree was
granted in favour of respondent without contest,
notwithstanding the fact that the appellant had entered
appearance, in my view, it would be appropriate to set
aside the impugned decree and remand the matter to the
Trial Court for granting fresh opportunity to the appellant
to contest the proceedings, as has been done by the
Division Bench in RFA No.200031/2023. As a result, the
appeal is allowed and the matter is remanded to the Trial
Court by setting aside the impugned judgment and decree
is set aside.
5. The appellant and respondent are directed to appear
before the civil Court without expecting any further notice
on 25.07.2023.
6. The appellant shall file his written statement on or
before 25.07.2023, If the written statement is not filed,
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RFA No. 200088 of 2023
the Trial Court shall consider holding the appellant had
waived his right to file his written statement.
7. Since the appellant has forced this litigation on the
respondent, it would be necessary to impose costs of
Rs.30,000/- and the said costs shall be paid on the next
date of hearing before the Trial Court without fail.
8. The Trial Court shall endeavour to dispose of the
matter within a period of 9 months from 25.07.2023 and
the parties are directed to ensure that the civil Court
dispose of the matter within 9 months.
The Court fee paid on this appeal shall be refunded
to the appellant.
Sd/-
JUDGE
MSR
