Shri Gaibusab S/O Babalal Bagani vs Shri Lalsab S/O Babalal Bagani
2024 Latest Caselaw 11596 Kant

Karnataka High Court

Shri Gaibusab S/O Babalal Bagani vs Shri Lalsab S/O Babalal Bagani on 27 May, 2024

                                                  -1-
                                                         NC: 2024:KHC-D:6989
                                                          WP No. 107692 of 2023




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                 DATED THIS THE 27TH DAY OF MAY, 2024
                                                BEFORE
                           THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
                              WRIT PETITION NO. 107692 OF 2023 (GM-CPC)
                      BETWEEN:
                      1.   SHRI GAIBUSAB S/O. BABALAL BAGANI,
                           AGE: 63 YEARS, OCC: AGRICULTURE AND BUSINESS,
                           R/O. SANJAY NAGAR,
                           PUGGEWADI, POST: DHAPADI PUNE-411 012,
                           (MAHARASHTRA STATE)

                      2.   KHAZU @ KHAJA S/O. GAIBUSAB BAGANI,
                           AGE: 35 YEARS, OCC: AGRICULTURE AND BUSINESS,
                           R/O. SANJAY NAGAR, PUGGEWADI,
                           POST: DHAPADI PUNE-411 012,
                           (MAHARASTRA STATE)

                      3.   SHRI ASLAM S/O. GAIBUSAB BAGANI,
                           AGE: 28 YEARS, OCC: AGRICULTURE AND BUSINESS,
                           R/O. SANJAY NAGAR, PUGGEWADI,
                           POST: DHAPADI PUNE-411 012,
                           (MAHARASHTRA STATE)
                                                                    ...PETITIONERS
                      (BY SRI. PRASHANT S. KADADEVAR, ADVOCATE)
                      AND:
YASHAVANT
NARAYANKAR
                      SHRI LALSAB S/O. BABALAL BAGANI,
Digitally signed by
YASHAVANT
                      AGE: 58 YEARS,
NARAYANKAR
Location: HIGH
COURT OF
                      OCC: AGRICULTURE AND BUSINESS,
KARNATAKA,
DHARWAD BENCH         R/O. CHIKKALAKI-587 301,
                      TQ: JAMKHANDI, DIST: BAGALKOT.
                                                                    ...RESPONDENT
                           THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                      OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
                      NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
                      DATED 6.11.2021 PASSED BY THE PRL. SENIOR CIVIL JUDGE,
                      JAMAKHANDI   AT.   JAMAKHANDI     IN  CIVIL  MISC.NO.3/2019
                      (ANNEXURE-D) AND ORDER DATED 25.05.2023 PASSED IN MA
                      NO.5007/2022 BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
                      BAGALKOT TO SIT AT JAMKHANDI AT.JAMKHANDI (ANNEXURE-G).
                                    -2-
                                         NC: 2024:KHC-D:6989
                                              WP No. 107692 of 2023




      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The captioned petition is filed assailing the

concurrent orders of the courts below wherein the

petitioners' application filed under Order IX Rule 13 of CPC

seeking leave of the court to set aside ex-parte decree is

rejected by the court of first instance and confirmed by the

appellate court in M.A.No.5007/2022.

2. Heard the learned counsel for the petitioners

and perused the grounds urged in the petition. I have also

given my anxious consideration to the reasons assigned by

the court of the first instance which has declined to

entertain the application filed under Order IX Rule 13 of

CPC. The court of first instance after having assessed the

evidence let in by the petitioners has taken note of the

fact that petitioners have admitted that they were served

with the summons. The contention that petitioner No.1

was suffering from viral infection and diarrhea was also

not accepted by the court of first instance. The court of the

NC: 2024:KHC-D:6989

first instance in the absence of the reasons indicating that

petitioners had sufficient cause for not appearing when the

suit was called on for hearing, proceeded to reject the

application and the same is confirmed by the appellate

court.

3. On examination of the materials on record, this

court has noticed that both the courts below after

meticulously examining the materials furnished by the

petitioners have come to the conclusion that petitioners

have failed to substantiate that they had sufficient cause

for not contesting the suit. In fact, both the courts below

have taken note of the fact that though petitioners were

served with the summons, have not chosen to contest the

suit. The reasons assigned by the courts below while

rejecting the application does not suffer from serious

material irregularity.

4. Be that as it may, the impugned orders will not

come in the way of the petitioners, in assailing the

judgment on merits by having recourse to Section 96(2) of

NC: 2024:KHC-D:6989

CPC. Even in the absence of defence, the petitioners under

Section 96(2) of CPC can demonstrate and substantiate

that plaintiff in the absence of rebuttal evidence is not

entitled for the decree that is granted by the court of the

first instance.

5. Therefore, reserving liberty to the petitioners to

prefer an appeal, the captioned petition stands dismissed.

Sd/-

JUDGE

MBS Ct-mck