Karnataka High Court
Yallavva W/O. Mahadevappa Koppad vs Hussainsab Rajesab Kotagunshi on 19 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MFA No. 102244 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO. 102244 OF
2014 (CPC-)
BETWEEN:
1. SMT. YALLAVVA W/O. MAHADEVAPPA KOPPAD
AGE. 90 YEARS, OCC. HOUSEHOLD,
R/O. CHANNAPUR, TQ. HUBLI,
DIST. DHARWAD.
2. SMT. BASAVVA D/O. MAHADEVAPPA KOPPAD
AGE: 55 YEARS, OCC: HOUSEHOLD WORK
R/O. CHANNAPUR, TQ: HUBLI
DIST: DHARWAD
3. SMT. PARAWWA D/O. MAHADEVAPPA KOPPAD
AGE: 53 YEARS, OCC: HOUSEHOLD WORK
R/O. CHANNAPUR, TQ: HUBLI, DIST: DHARWAD
Digitally
signed by
SAMREEN
SAMREEN AYUB
AYUB DESHNUR
4. PARAMESHWAR S/O. MAHADEVAPPA KOPPAD
DESHNUR Date:
2024.02.23
14:32:38
+0530 AGE: 50 YEARS, OCC: AGRICULTURE
R/O. CHANNAPUR, TQ: HUBLI, DIST: DHARWAD
5. MALAKAJAPPA MAHADEVAPPA KOPPAD
AGE: 43 YEARS, OCC: AGRICULTURE
R/O. CHANNAPUR, TQ: HUBLI, DIST: DHARWAD
6. YALLAPPA CHANNAPPA KOPPAD
AGE: 80 YEARS, OCC: NIL
R/O. CHANNAPUR, TQ: HUBLI, DIST: DHARWAD
...APPELLANTS
(BY SRI. ARUN L NEELOPANT, ADVOCATE)
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MFA No. 102244 of 2014
AND:
1. HUSSAINSAB RAJESAB KOTAGUNSHI
AGE: 64 YEARS, OCC: AGRICULTURE
R/O. CHANNAPUR, TQ: HUBLI
DIST: DHARWAD
SINCE DECEASED BY HIS LEGAL HEIRS
1(A) SMT. MEHABOOBI W/O. HUSSAINSAB KOTAGUNSHI
AGE: 65 YEARS, OCC: HOUSEHOLD WORK
R/O. CHANNAPUR, TQ: HUBLI
DIST: DHARWAD
1(B) RAJESAB S/O. LATE HUSSAINSAB KOTAGUNSHI
AGE: 42 YEARS, OCC: AGRICULTURE
R/O. CHANNAPUR, TQ:HUBLI
DIST: DHARWAD
1(C) MAHABOOBSAB S/O. LATE HUSSAINSAB KOTAGUNSHI,
AGE: 36 YEARS,
OCC: AGRICULTURE
R/O. CHANNAPUR, TQ:HUBLI
DIST: DHARWAD
1(D) SMT. BIBIJAN D/O. LATE HUSSAINSAB KOTAGUNSHI
AGE. 40 YEARS, OCC. HOUSEHOLD WORK
R/O. CHANNAPUR, TQ. HUBLI
DIST. DHARWAD
SINCE DECEASED BY HIS LRS.
SMT. NAGEENA HALLUR,
1D(I)
C/O. IRFANSAB HALLUR,
MAJOR, OCC. HOUSEHOLD WORK,
R/O. ASAR HONDA, NEAR JAIN MANDIR,
OLD-HUBBALLI, HUBBALLI.
1(E) SMT. BEGUM D/O. LATE HUSSAINSAB KOTAGUNSHI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O. CHANNAPUR, TQ:HUBLI
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MFA No. 102244 of 2014
DIST: DHARWAD
2. MAKTUMSAB RAJESAB KOTAGUNSHI
AGE: 56 YEARS, OCC: AGRICULTURE
R/O. CHANNAPUR, TQ:HUBLI, DIST: DHARWAD
3. MODINSAB RAJESAB KOTAGUNSHI
AGE: 49 YEARS, OCC: GOVT. SERVICE
R/O. DURGADBAIL, GOULI GALLI TQ:HUBLI
DIST: DHARWAD
4. ANANTH BHIMARAO DESAI
AGE: 54 YEARS, OCC: AGRICULTURE
AND PVT. SERVICE,
R/O. DURGADBAIL, GOULI GALLI HUBLI
5. SMT. VEEBABI W/O. SHIVAJI DESAI
AGE: 39 YEARS, OCC: HOUSEHOLD WORK
R/O. DURGADBAIL, GOULI GALLI HUBLI
6. SHANKAR BHIMARAO DESAI
AGE: 49 YEARS, OCC: GOVT. SERVICE
R/O. DURGADBAIL, GOULI GALLIHUBLI
7. ANANTH MALATESH BHIMARAO DESAI
AGE: 34 YEARS,
OCC: GOVT. SERVICE
R/O. DURGADBAIL, GOULI GALLI, HUBLI
8. GURUSIDDAPPA MAHADEVAPPA DESAI
AGE: 60 YEARS, OCC: AGRICULTURE
R/O. CHANNAPUR, TQ: HUBLI DIST: DHARWAD
9. SMT. SAJEEDA W/O. ABDUL GANI NADAF
AGE. 44 YEARS, OCC. HOUSEHOLD,
R/O. GOKUL ROAD, HUBBALLI.
...RESPONDENTS
(BY SRI. ANAND R KOLLI, ADVOCATE FOR R1A-C, R1D(I), R1E;
R1(D) DECEASED;
NOTICE TO R4-R8 SERVED;
SRI.S.V.KOPPAR, ADVOCATE FOR R9)
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MFA No. 102244 of 2014
THIS APPEAL IS FILED U/S.43(1)(d) OF CPC., AGAINST THE
JUDGMENT & ORDER DATED:03.07.2014, PASSED IN
MISC.NO.8/2009, ON THE FILE OF I ADDITIONAL SENIOR CIVIL
JUDGE, HULBI, DISMISSING THE APPLICATION FILED U/O.14 RULE
13 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Arun L Neelopant, learned counsel for the
appellants and Sri.Anand R Kolli, learned counsel for
respondents.
2. Though the matter is listed for admission, with
the consent of both parties, it is taken up for final
disposal.
3. Present appeal is filed challenging the order
passed by the learned I Additional Senior Civil Judge,
Hubballi in dismissing the Misc. No.8/2009, which was filed
under Order IX Rule 13 of Code of Civil Procedure (for
short 'CPC') to set aside the exparte decree passed in
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O.S.No.226/2005 on the file of Principal Senior Civil Judge,
Hubballi on 24.01.2008.
4. Facts in brief which are utmost necessary for
disposal of this case are as under:
4.1 A original suit came to be filed in
O.S.No.226/2005 with a prayer to declare that the
plaintiffs therein who are the respondents herein are the
owners of suit property by way of adverse possession.
4.2 Summons in the said suit according to bailiff
report is refused by the present appellants and therefore
he has made necessary endorsement in the backside of
the summons.
4.3 Learned trial Judge, acting on the bailiff report,
placed the present appellants exparte and suit was
proceeded exparte. Learned trial Judge decreed suit of the
plaintiff on 24.01.2008.
4.4 Soon after the appellants came to know about
result of the suit, they filed an application under Order IX
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Rule 13 of CPC seeking setting aside of the exparte decree
which was registered in Misc. No.8/2009.
4.5 The said Misc. application was contested by the
plaintiffs and enquiry was held by the learned trial Judge.
4.6 On behalf of appellants, one of the appellants
got examined as PW.1 and four documents were placed on
record which were exhibited and marked as Ex.P.1 to P.4.
4.7 As against the said evidence placed on record,
on behalf of respondents, one of the respondents got
examined as RW.1 and certified of copy objections and
vakalath were marked as Ex.R.1 and R.2.
4.8 Learned trial Judge on considering the oral and
documentary evidence placed on record, refused to set
aside the exparte decree and dismissed the
Misc.No.8/2009 filed under Order IX Rule 13 of CPC by
order dated 03.07.2014.
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5. Being aggrieved by the same, the appellants -
defendants in O.S.No.226/2005 who are petitioners in
Misc. No.8/2009 have filed the present appeal.
6. Reiterating the grounds urged in the appeal
memorandum, Sri.Arun L Neelopant, learned counsel for
the appellants vehemently contended that the learned trial
Judge did not appreciate the material evidence placed on
record in a proper manner and wrongly dismissed the
application filed under Order IX Rule 13 of CPC and same
has resulted in miscarriage of justice and sought for
allowing the appeal.
7. Per contra, Sri.Anand R Kolli appearing for the
contesting respondents who are plaintiffs in
O.S.No.226/2005 supported the impugned judgment by
contending that the learned trial Judge was justified in
acting on the endorsement made by the bailiff.
8. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
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9. On such perusal of material on record,
O.S.No.226/2005 is filed for declaration that respondents
herein are the owners of suit property by way of adverse
possession.
10. Admittedly, the decree is an exparte decree.
Whether at all the defendants were duly served or really
refused to receive the summons are all matters to be
considered by the learned trial Judge in O.S.No.226/2005.
11. Since it is an exparte decree and suit for
declaration was filed, affording one more opportunity to
the appellants to contest the suit on payment of cost of
Rs.25,000/- (Rupees Twenty Five thousand only) would
meet the ends of justice.
12. Accordingly, without expressing any opinion on
the merits of the matter, following order is passed:
ORDER
(i) Appeal is allowed.
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(ii) Judgment and decree passed in
O.S.No.226/2005 is set aside by allowing Misc.
No.8/2009 on the file of I Additional Senior Civil
Judge, Hubballi, on payment of cost of
Rs.25,000/- (Rupees Twenty Five thousand
only) payable by the appellants to the
contesting respondents (plaintiffs).
(iii) Parties shall appear before the trial Court
without any further notice on 18.03.2024.
(iv) Payment of cost is condition precedent to
restore the suit in O.S.No.226/2005 on or
before 15.03.2024.
(v) If appellants pay the cost and appear before the
trial Court on 18.03.2024, they shall file written
statement on the same day and thereafter trial
Court to dispose of the suit on or before
31.12.2024.
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(vi) Needless to emphasise that the parties shall co-
operate for early disposal of the suit.
(vii) The parties shall maintain status-quo with
regard to possession till the disposal of the suit.
Sd/-
JUDGE
SH
