Karnataka High Court
Shantavva W/O. Shivalingapa ... vs Vijaymahantesh S/O. Vishwanath ... on 8 November, 2023
Bench: Hanchate Sanjeevkumar
-1-
NC: 2023:KHC-D:13109
MFA No. 100205 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.100205/2021(CPC)
BETWEEN:
1. SHANTAVVA
W/O. SHIVALINGAPPA SAJJAN @ JODAGANIGER,
AGE: 70 YEARS,
OCC: H.H.W.
R/O: KANTI CIRCLE,
NEAR DWARAKA LODGE,
ILKAL, TQ: HUNGUND,
BAGALKOT DIST - 587 201.
2. TIPPANNA
S/O. NINGAPPA JODAGANIGER,
AGE: 78 YEARS,
OCC: AGRIL.,
R/O: KANTI CIRCLE,
NEAR DWARAKA LODGE,
ILKAL, TQ: HUNGUND,
BAGALKOT DIST: 587 201.
Digitally
signed by
BHARATHI ...APPELLANTS
HM
(BY SRI P.G.YATNAL AND SADANAND M.K., ADVOCATES)
AND:
1. VIJAYMAHANTESH
S/O. VISHWANATH SAJAN,
AGE: 38 YEARS,
OCC: LECTURER IN BASAVESHWAR
ENGINEERING COLLEGE,
BAGALKOT,
R/O: STATION ROAD,
BAGALKOT-587 101.
-2-
NC: 2023:KHC-D:13109
MFA No. 100205 of 2021
2. SMT. NADANI
W/O. VISHWANATH SAJJAN,
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: COMPLI-583 132,
TQ: GANGAVATI,
KOPPAL DIST.
3. SANGAPPA
S/O. VISHWANATH SAJJAN,
AGE: 38 YEARS,
OCC: AGRI.,
R/O. COMPLI - 583 132,
TQ: GANGAVATI,
KOPPAL DIST.
4. ARCHANA
W/O. VENKATESH GANIGER,
AGE: 41 YEARS, OCC: H.H.W,
R/O: COMPLI - 583 132,
TQ: GANGAVATI,
DIST: KOPPAL.
5. SMT. DEEPAMATI
W/O. ANAND KUSHTAGI,
AGE: 41 YEARS,
OCC: TEXTILE SUPERVISOR,
R/O: WARD NO.9, H.NO.354,
BAGALKOT - 587 101,
TQ AND DIST: BAGALKOT.
...RESPONDENTS
(BY SRI PRAKASH HOSAMANE, ADVOCATE FOR R1;
NOTICE TO R2 TO R5 ARE DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(D) OF CPC,
SET ASIDE THE JUDGMENT AND ORDER DATED 21.03.2020 PASSED
IN CIVIL MISC.NO.14/2018 BY THE COURT OF IST ADDITIONAL
SENIOR CIVIL JUDGE, BAGALKO AND ALLOW THE CIVIL
MISC.NO.14/2018 ON THE FILE OF THE 1ST ADDITIONAL SENIOR
CIVIL JUDGE, BAGALKOT AND RESTORE O.S.NO.82/2014 ON THE
FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, BAGALKOT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC-D:13109
MFA No. 100205 of 2021
JUDGMENT
The appeal is filed by the Defendant Nos.6 and 7 in
the suit O.S.No.82/2014 against the Order passed in Civil
Misc.No.14/2018 dated 21.03.2020 by the Court of the I
Addl. Senior Civil Judge, Bagalkot, by setting aside the
exparte Judgment and Decree passed in O.S.No.82/2014.
2. The plaintiff in the suit who is Respondent No.1
herein has filed a suit for declaration and partition and the
suit is decreed. Upon perusal of O.S.No.82/2014, the
defendants have not appeared in the case and thus, they
were placed exparte. Therefore, the Trial Court proceeded
to pass exparte Judgment and Decree on 17.01.2018.
3. Subsequently, the Defendant Nos.6 and 7 have
filed Civil Misc.No.14/2018 by invoking Order IX Rule 13
read with Section 151 of CPC to set aside the exparte
Judgment and Decree passed in O.S.No.82/2014. But the
NC: 2023:KHC-D:13109
MFA No. 100205 of 2021
said Civil Misc. Petition is dismissed. Being aggrieved by
these orders, the instant appeal is preferred.
4. Even though the Trial Court has noticed that the
defendants have received notice, but did not appear and
without any alternative, the Trial Court might have
proceeded to pass exparte Judgment and Decree, but
fundamentally it is amounting to without hearing
defendants, exparte Judgment and Decree is passed.
Now, the defendants desire to contest the suit. Therefore,
the defendants have also right to participate in the said
proceedings. Otherwise, it would be violation of principles
of natural justice. Therefore, the Court is of opinion to set
aside the order passed in Civil Misc. No.20/2018 and
exparte Judgment and Decree passed in O.S.No.18/2014.
Therefore, the suit in O.S.No.82/2014 is restored on its
board for fresh consideration in accordance with law after
giving opportunities to defendants. Therefore, the Order
passed in Civil Misc.No.14/2018 dated 21.03.2020 and
NC: 2023:KHC-D:13109
MFA No. 100205 of 2021
exparte Judgment and Decree in O.S.No.82/2014 dated
17.01.2018 passed by the Court of the I Addl. Senior Civil
Judge, Bagalkot, are hereby set aside. The Defendant
Nos.6 and 7 are permitted to file written statement and
contest the suit. Therefore, the matter is remanded to
Trial Court for fresh consideration of the suit.
5. Therefore, I pass the following:
ORDER
i) MFA No.100205/2021 is allowed.
ii) The Order dated 21.03.2020 in
Misc.No.14/2018 and the exparte Judgment
and Award dated 17.01.2018 passed in
O.S.No.82/2014, both by the I Addl. Senior
Civil Judge, Bagalkot is set aside.
iii) O.S.No.82/2014 is restored on board on the file
of the Court of I Addl. Senior Civil Judge and
JMFC, Bagalkot.
NC: 2023:KHC-D:13109
MFA No. 100205 of 2021
iv) The plaintiff and defendants shall appear before
the Court on 19.12.2023 without expecting
notice from the Court.
v) The Trial Court shall make every endeavour to
dispose of the suit within a period of four
months from the date 19.12.2023.
SD/-
JUDGE
BNV
CT-ASC
