Karnataka High Court
Venkappa S/O Adiveppa Havannavar vs Mahadevi W/O Hanamanth Makannavar on 22 April, 2024
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RFA No. 100437 of 2023
C/W RFA No. 100098 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100437 OF 2023 (PAR/POS)
C/W
REGULAR FIRST APPEAL NO.100098 OF 2023
IN RFA NO.100437 OF 2023:
BETWEEN:
VENKAPPA S/O. ADIVEPPA HAVANNAVAR
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: GULAGANJIKOPPA VILLAGE,
TALUK MUDALAGI, DIST: BELAGAVI-591312.
...APPELLANT
(BY SMT.DEEPA P.DODDATTI, ADVOCATE FOR
SRI.PAVAN B.DODDATTI, ADVOCATE)
SHIVAKUMAR
HIREMATH AND:
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
Date: 2024.04.25
MAHADEVI W/O. HANAMANTH MAKANNAVAR
11:09:13 +0530
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HULAKUND VILLAGE, TALUK: RAMDURG,
DIST: BELAGAVI-591123.
...RESPONDENT
(BY SRI.BAHUBALI N.KANABARGI, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 OF CPC., PRAYING TO, SET-ASIDE THE ORDER AND
DECREE DATED 02.11.2022 PASSED BY THE COURT OF THE
PRINCIPAL SENIOR CIVIL JUDGE, GOKAK IN FDP NO.03/2022
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RFA No. 100437 of 2023
C/W RFA No. 100098 of 2023
BY ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE
AND EQUITY; PLEASE TO PASS ANY OTHER ORDER OR
DIRECTION AS THIS HONBLE COURT DEEMS FIT UNDER THESE
CIRCUMSTANCES.
IN RFA NO.100098 OF 2023:
BETWEEN:
VENKAPPA S/O. ADIVEPPA HAVANNAVAR
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: GULAGANJIKOPPA VILLAGE,
TALUK MUDALAGI, DIST: BELAGAVI-591312.
...APPELLANT
(BY SMT. DEEPA P.DODDATTI, ADVOCATE FOR
SRI.PAVAN B.DODDATTI, ADVOCATE)
AND:
MAHADEVI W/O. HANAMANTH MAKANNAVAR
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HULAKUND VILLAGE, TALUK: RAMDURG,
DIST: BELAGAVI-591123.
...RESPONDENT
(BY SRI.BAHUBALI N.KANABARGI, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 04.10.2021 PASSED IN O.S.NO.89/2021 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE GOKAK,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
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RFA No. 100437 of 2023
C/W RFA No. 100098 of 2023
JUDGMENT
RFA No.100098/2023 is filed by the defendant
challenging the Judgment and decree dated 04.10.2021 in
O.S.No.89/2021 on the file of I Additional Senior Civil
Judge, Gokak, decreeing the suit of the plaintiff. RFA
No.100437/2023 is filed by respondent in FDP No.3/2022
on the file of II Additional Senior Civil Judge, Gokak,
questioning the final decree proceedings in the matter.
2. For the sake of convenience the parties are
referred to as per their ranking in O.S.No.89/2021.
3. Brief facts in nutshell are that, plaintiff has filed
suit seeking relief of partition and separate possession
against the defendant on the ground that, the suit
schedule properties are the joint family properties of
plaintiff and defendant and as there is no partition in the
joint family consisting of the plaintiff and the defendant, it
is urged by the plaintiff that, the plaintiff is entitle for half
share in the suit schedule properties.
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4. Upon service of notice, the defendant failed to
enter appearance and accordingly placed ex-parte. In
order to establish her case, the plaintiff has examined
herself as P.W.1 and got marked six documents as Ex.P.1
to Ex.P.6. On the other hand, no oral and documentary
evidence have been produced by the defendant. The trial
Court after considering the material on record, by its
Judgment and decree dated 04.10.2021 decreed the suit
holding that the plaintiff is entitle for half share in the suit
schedule properties. Feeling aggrieved by the Judgment
and decree passed by the trial Court, defendant has
preferred RFA No.100098/2023.
5. After the passing of the Judgment and decree
passed by the trial Court in O.S.No.89/2021, plaintiff has
filed FDP No.3/2022 before the trial Court, seeks to
execute the preliminary decree in O.S.No.89/2021. In the
said proceedings notice to the respondent/appellant herein
is unclaimed and accordingly the service was held
sufficient. The trial Court after considering the report filed
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by the Commissioner, draw the final decree proceedings
by order dated 02.11.2022 in FDP No.3/2022. Feeling
aggrieved by the said impugned order dated 02.11.2022
respondent/defendant/appellant herein preferred RFA
No.100437/2023.
6. We have heard Smt. Deepa P. Doddatti, learned
counsel for Sri. Pavan B. Doddatti, learned counsel
appearing for appellant and Sri. Bahubali N. Kanabargi,
learned counsel appearing for the respondent.
7. It is submitted by the learned counsel
appearing for the appellant/defendant that, a fair
opportunity has not been extended to the appellant herein
to file written statement and though the said suit was filed
on 03.02.2021, the suit came to be decreed on
04.10.2021 and accordingly, it is submitted by the learned
counsel for the appellant that fair opportunity has not
been extended to the defendant/appellant to contest the
matter.
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8. Per contra, learned counsel appearing for the
respondent/plaintiff sought to justify the impugned
Judgment and decree passed by the trial Court.
9. In the light of the submissions made by the
learned counsels appearing for the parties, the following
points are to be answered in these appeals:
(i) Whether fair opportunity has been extended to
the defendant before the trial Court?
(ii) Whether the Judgement and decree passed by
the trial Court requires interference?
(iii) What order?
10. In the light of the submission made by the
learned counsels appearing for the parties, it is not in
dispute with regard to the relationship between the
parties. Perusal of the order sheet before the trial Court
would indicate that, the plaintiff has instituted suit in
O.S.No.89/2021 against the defendant before the trial
Court, seeking relief of partition and separate possession
in respect of the suit schedule properties. The suit came to
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be decreed on 04.10.2021 and on consideration of the
order sheet, it is evident that, the trial Court has not
extended fair opportunity to the defendant to file written
statement and to contest the suit on merits. Undisputably,
suit is for partition and separate possession in respect of
the properties in question. In that view of the matter, the
trial Court ought to have granted fair opportunity to the
defendant to file written statement after entering
appearance through his learned counsel. On the other
hand, it is the duty of the defendant to file written
statement in terms of Order VIII Rule 1 of CPC, at the
earliest. In that view of the matter, we are of the opinion
that, the appeals are required to be allowed providing
opportunity to the defendant to file written statement at
the earliest subject to compensate the plaintiff by
imposing costs of Rs.10,000/-.
11. In the case of Salem Advocate Bar
Association, Tamil Nadu Vs. Union of India, reported
in (2005) 6 SCC 344 and C.N.Ramappa Gowda Vs.
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C.C.Chandregowda (dead) by L.Rs. and another,
reported in (2012) 5 SCC 265, it is held that, fair
opportunity be extended to the defendant to contest the
matter on merits. Therefore, the points for determination
referred to above favours the defendant and accordingly
we pass the following:
ORDER
(i) The appeals are allowed;
(ii) Judgment and decree dated 04.10.2021 in
O.S.No.89/2021 on the file of I Additional
Senior Civil Judge Court, Gokak is set aside
and the matter is remanded to the trial
Court for fresh disposal after affording fair
opportunity to the parties;
(iii) Order dated 02.11.2022 in FDP No.3/2022
on the file of II Additional Senior Civil Judge
Gokak is set aside, in view of remanding
the matter in O.S.No.89/2021;
(iv) In order to avoid further delay in the
matter, the parties are directed to appear
before the trial Court on 28.05.2024 at
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11.00 a.m. and defendant shall file written
statement on the very same day, subject to
payment of Rs.10,000/- to the plaintiff
towards the costs of litigation.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
