Karnataka High Court
Smt Roopa vs Smt Padmamma on 4 March, 2024
-1-
NC: 2024:KHC:9064
WP No. 12884 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 12884 OF 2021 (GM-CPC)
BETWEEN:
1. SMT. ROOPA
W/O LATE CHANDREGOWDA
AGED ABOUT 42 YEARS
2. SMT. C. MONISHA
D/O LATE CHANDREGOWDA
AGED ABOUT 20 YEARS
BOTH RESIDING AT
MALURPATNA VILLAGE
MALUR HOBLI,
CHANNAPATNA TALUK-562160.
...PETITIONERS
(BY SRI. RAVISHANKAR S., ADVOCATE)
AND:
Digitally
signed by BS
RAVIKUMAR
1. SMT. PADMAMMA
Location:
HIGH W/O JAVARAYIGOWDA
COURT OF D/O LATE THIMMEGOWDA
KARNATAKA AGED ABOUT 51 YEARS
RESIDING AT NO.207,
9TH MAIN, 3RD 'A' CROSS,
CHANNAMMAKERE ACHUKATTU,
BSK 3RD STAGE, WARD NO.54,
BENGLAURU-560085.
2. SMT. PUTTAMMA
W/O LATE THIMMEGOWDA
AGED ABOUT 79 YEARS
3. SRI. SREENIVASA
S/O LATE THIMMEGOWDA
-2-
NC: 2024:KHC:9064
WP No. 12884 of 2021
AGED ABOUT 47 YEARS
RESPONDENTS 2 AND 3 ARE
RESIDING AT KANAKANAGARA,
HALASINAMARADA DODDI,
SATHNUR ROAD,
CHANNAPATNA-562160.
...RESPONDENTS
(BY SRI. M.VEERABHADRAIAH, ADVOCATE FOR RESPONDENT NO.1;
NOTICE SERVED ON RESPONDENT NOS.2 AND 3;
VIDE ORDER DATED 26.10.2021, SRI LOKESH A, ADVOCATE FOR
RESPONDENTS (VK NOT FILED))
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN
O.S.NO.547/2006 AND MISCELLANEOUS PETITION NO.26/2012 AND
SET ASIDE THE ORDER DATED 20.03.2020 PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC, CHANNAPATNA, RAMANAGARA IN
MISCELLANEOUS PETITION NO.26/2012 AS PER ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The respondent Nos.1 and 2 in Misc. No.26/2012 on
the file of Senior Civil Judge and JMFC., Channapatna,
have filed this petition challenging an order dated
20.03.2020 by which the miscellaneous petition was
allowed and the suit in O.S. No.547/2006 was restored to
file.
NC: 2024:KHC:9064
2. A suit in O.S. No.547/2006 was filed by
petitioners herein before the Court of Principal Civil Judge
(Sr. Dn.), and CJM., Ramanagara, (henceforth referred to
as 'the Trial Court') for partition and separate possession
of their 1/4th share in respect of a house property and an
agricultural land. The respondent herein was the
defendant No.3 in the said suit. A written statement was
filed by defendant Nos.1 and 2 wherein they contended
that the suit item No.1 was the self acquisition of
defendant No.1 and that he out of his earnings had
purchased it in terms of a sale deed dated 22.09.1980. He
also contended that he had gifted the suit item No.1 in
favour of defendant No.3 on 10.05.2006 in terms of a
document duly registered. Therefore, defendant Nos.1
and 2 contended that the plaintiffs had no right to claim a
share in the suit schedule properties. It appeared that the
defendant No.3 had also affixed her signature to the said
written statement.
NC: 2024:KHC:9064
3. Based on these contentions, the suit was set
down for trial. The plaintiff No.1 was examined as PW.1
and she marked documents as Exs.P1 to P4. However, the
defendants did not enter into the witness box and did not
produce any documents.
4. Based on the oral and documentary evidence,
the Trial Court in terms of the judgment dated
25.02.2011, held that the plaintiffs are entitled to 1/4th
share in the suit schedule properties. Following this, a
final decree proceeding was initiated by the plaintiffs, in
FDP No.5/2012 before the Court of Senior Civil Judge and
JMFC., Channapatna. When the notice of final decree
proceeding was issued, the petitioner herein/defendant
No.3 filed a miscellaneous petition in Misc. No.26/2012
under Order IX Rule 13 of the Code of Civil Procedure,
1908 (for short, 'CPC')., contending that she was not
served with the notice of the suit in O.S. No.547/2006.
She also contended that she did not engage any Advocate
and had not filed any written statement in the said suit
NC: 2024:KHC:9064
and the one filed before the Trial Court was false and
fraudulent and some person had impersonated her. The
petition was initially dismissed on the ground of delay.
Thereafter an appeal was filed in M.A No.20/2013 before
the Court of I Additional District and Sessions Judge,
Ramanagara, which was allowed and the case was
remitted back to the Court of Senior Civil Judge and
JMFC., Channapatna, to consider the Miscellaneous
Petition under Order IX Rule 13 of CPC. The Court of
Senior Civil Judge and JMFC., Channapatna, recorded the
evidence of defendant No.3/respondent No.1 herein as
PW.1 and she marked documents as Exs.P1 to P5. The
petitioner No.1 herein was examined as RW.1 and she
marked documents as Exs.R1 to R5.
5. Based on the oral and documentary evidence,
the Court of Senior Civil Judge and JMFC., Channapatna, in
terms of the impugned order, held that the medical
records exhibited by defendant No.3/respondent No.1
herein, established that she was prevented by sufficient
NC: 2024:KHC:9064
cause from defending the suit in O.S.No.547/2006.
Therefore, it allowed the miscellaneous petition in Misc.
No.26/2012 and set aside the judgment and decree dated
25.02.2011 passed in O.S. No.547/2006 subject to the
defendant No.3 paying cost of Rs.2,000/- to the
respondents therein.
6. Being aggrieved by the same, the plaintiffs in
O.S. No.547/2006 / respondent Nos.1 and 2 in Misc.
No.26/2012 have filed this petition.
7. Learned counsel for the petitioners submitted
that the defendant No.3 in O.S. No.547/2006 / respondent
No.1 herein had admitted in categorical terms that she
had engaged an Advocate and had also filed a written
statement in the first instance. He contends that the
reason assigned by the Senior Civil Judge and JMFC.,
Channapatna, for setting aside the ex parte judgment and
decree dated 25.02.2011 passed by the Trial Court in O.S.
No.547/2006 was extremely specious and therefore, no
indulgence could have been shown to the respondent No.1
NC: 2024:KHC:9064
herein. He further contends that Ex.P4, which was the
medical record, was an ultra sound report which did not
show that the respondent No.1 herein was suffering from
any illness and therefore, nothing turned on Ex.P4 to hold
that respondent No.1 herein was prevented from sufficient
cause in defending the suit.
8. Per contra, the learned counsel for respondent
No.1 / defendant No.3 submits that defendant No.3 did
not engage an Advocate and did not file a written
statement and that the signature found on the written
statement filed in O.S. No.547/2006 before the Trial Court
was impersonated by some person. He contends that it is
the petitioners herein who had stage managed the whole
episode so as to walk away with a decree of partition and
separate possession. He contends that the suit item No.1
was the self acquired property of the father of defendant
No.3 and that a gift deed was executed in her favour. He
contends that if the defendant No.3 knew of the suit in
O.S. No.547/2006, she would have taken definitive steps
NC: 2024:KHC:9064
to defend her title in respect of the suit properties.
Therefore, he contends that the Court of Senior Civil Judge
and JMFC., Channapatna, has rightly set aside the
judgment and decree passed by the Trial Court in O.S.
No.547/2006 and granted an opportunity to the defendant
No.3/respondent No.1 herein to contest the suit on merits.
9. I have considered the submissions made by the
learned counsel for the petitioners and the learned counsel
for respondent No.1.
10. A perusal of the evidence of respondent
No.1/defendant No.3 in O.S. No.547/2006 recorded in
Misc. No.26/2012 goes to show that she admitted her
signature found on the vakalath filed for defendant Nos.1
to 3 in O.S. No.547/2006, which was marked as Ex.R1.
Likewise, she admitted her signature found in the written
statement filed in O.S. No.547/2006 which was marked as
Ex.P5. Therefore, it is quite clear that respondent No.1/
defendant No.3 had participated in the proceedings in O.S.
No.547/2006 before the Trial Court by engaging an
NC: 2024:KHC:9064
Advocate and also filed a written statement. Therefore,
the contention of the respondent No.1 herein that she had
not engaged an Advocate and had not filed a written
statement are all liable to be rejected. The defendant
Nos.1 and 2 as well as defendant No.3 claimed in their
written statement that a gift deed was executed by
defendant No.1 in favour of defendant No.3/respondent
No.1 herein in respect of the suit item No.1 property on
10.05.2006 which was duly registered. Therefore, though
the cause shown for not contesting the suit does not
appear to be genuine, yet an opportunity deserves to be
granted to defendant No.3 to establish her case that the
suit item No.1 property was gifted to her by her father so
that her case is finally considered. It is not unnatural for
the defendant Nos.1 and 2 to take responsibility of
pursuing the suit on their behalf and also on behalf of
defendant No.3. It is quite possible that in this process,
defendant No.3 must have lost track and therefore, an
opportunity deserves to be granted to defendant No.3 to
contest the suit on merits. However, Court of Senior Civil
- 10 -
NC: 2024:KHC:9064
Judge and JMFC., Channapatna could not have allowed the
request of defendant No.3 in O.S. No.547/2006 /
petitioner therein in the face of her admission in the cross-
examination, by a flea bite fine and it ought to have
imposed exemplary cost to ensure that she participated in
the proceedings effectively without procrastinating it. In
that view of the matter, though the impugned order does
not warrant any interference, however, the cost imposed
needs to be enhanced.
11. Consequently, this writ petition is disposed off
upholding the impugned order dated 20.03.2020 passed
by the Court of Senior Civil Judge and JMFC.,
Channapatna, in Misc. No.26/2012. However, the same
shall be subject to payment of cost of Rs.10,000/- (Rupees
Ten Thousand only) payable by the respondent No.1
herein to the petitioners herein, before the Trial Court on
the next date of hearing. Now that defendant No.3 has
already filed written statement in O.S. No.547/2006 and
the Trial Court has also framed issues and posted the suit
- 11 -
NC: 2024:KHC:9064
for cross-examination of defendant No.3, the Trial Court
shall expedite the matter and dispose off the suit - O.S.
No.547/2006 at the earliest which at any rate shall not
exceed six months from the date of receipt of a certified
copy of this order.
Sd/-
JUDGE
SMA
