Karnataka High Court
Subhash vs Sangeeta And Ors on 11 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:8304
RSA No. 200395 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200395 OF 2024
(PAR/POS)
BETWEEN:
SRI SUBHASH
S/O THAVARU JADHAV @ LAMANI,
AGED ABOUT 38 YEARS, OCC: AGRICULTURE,
R/O. PADAGANUR, TQ. DEVARHIPPARAGI,
DIST. VIJAYAPUR-586101.
...APPELLANT
(BY SRI S. S. MAMADAPUR, ADVOCATE)
AND:
Digitally signed by
SHIVALEELA
DATTATRAYA 1. SMT. SANGEETA W/O APPU RATHOD,
UDAGI
AGED ABOUT 45 YEARS, OCC: HOUSEHOLD,
Location: HIGH
COURT OF R/O. MANUR LT,
KARNATAKA TQ. DEVARHIPPARAGI-586115.
2. SRI MALLESH
S/O RAMU JADHAV @ LAMANI,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O PADAGANUR,
TQ. DEVARHIPPARAGI-586115.
3. SRI SRIMANT
S/O RAMU JADHAV @ LAMANI,
AGED ABOUT 38 YEARS, OCC: AGRICULTURE,
R/O. PADAGANUR, TQ. DEVARHIPPARAGI-586115.
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RSA No. 200395 of 2024
4. SMT. SUNITA W/O KUMAR RATHOD,
AGED ABOUT 35 YEARS, OCC: HOUSEHOLD,
R/O MANUR LT, TQ. DEVARHIPPARAGI-586115.
5. SMT. MEENAXI W/O APPU RATHOD,
AGED ABOUT 35 YEARS, OCC: HOUSEHOLD,
R/O MANUR LT, TQ. DEVARHIPPARAGI-586115.
6. SMT. SHILPA
W/O PRAKASH RATHOD,
AGED ABOUT 30 YEARS, OCC: HOUSEHOLD,
R/O GADDANKERI, TQ. BAGALKOT-587101.
7. SMT. RESHMA W/O SANDEEP RATHOD,
AGED ABOUT 28 YEARS, OCC: HOUSEHOLD,
R/O MANUR LT, TQ. DEVARHIPPARAGI-586115.
8. SRI SACHIN
S/O RAMU JADHAV @ LAMANI,
AGED ABOUT 26 YEARS, OCC: AGRICULTURE,
R/O PADAGANUR, TQ. DEVARHIPPARAGI-586115.
9. SMT. INDUBAI
W/O RAMU JADHAV @ LAMANI,
AGED ABOUT 60 YEARS, OCC: HOUSEHOLD,
R/O PADAGANUR, TQ. DEVARHIPPARAGI-586115.
10. SMT. SHANTABAI
W/O THAVARU JADHAV @ LAMANI,
AGED ABOUT 55 YEARS, OCC: HOUSEHOLD,
R/O PADAGANUR, TQ. DEVARHIPPARAGI-586115.
11. SRI KUMAR
S/O THAVARU JADHAV @ LAMANI,
AGED ABOUT 35 YEARS, OCC: HOUSEHOLD,
R/O. PADAGANUR,
TQ. DEVARHIPPARAGI-586115.
12. SRI VINOD
S/O THAVARU JADHAV @ LAMANI,
AGED ABOUT 25 YEARS, OCC: HOUSEHOLD,
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NC: 2024:KHC-K:8304
RSA No. 200395 of 2024
R/O. PADAGANUR,
TQ. DEVARHIPPARAGI-586115.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
01.04.2024 PASSED BY THE HON'BLE SENIOR CIVIL JUDGE
AND JMFC, SINGAGI IN RA NO.49/2022 AS WELL AS THE
JUDGMENT AND DECREE DATED 29.07.2022 PASSSED BY THE
HON'BLE CIVIL JUDGE, SINDAGI, IN FDP NO.5/2021.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
This appeal is filed by the defendant No.4 aggrieved
by the judgment and decree dated 01.04.2024 passed in
R.A.No.49/2022 on the file of Senior Civil Judge and JMFC,
Sindagi (hereinafter referred to 'First Appellate Court') as
well as the judgment and decree dated 29.07.2022 passed
in F.D.P.No.5/2021 on the file of Civil Judge, Sindagi
(hereinafter referred to 'the Trial Court').
2. A suit in O.S.No.339/2019 came to be filed by
respondent Nos.1 to 8 for the relief of partition and
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separate possession against the appellant and respondent
Nos.9 to 12 herein. The appellant herein was arrayed as
defendant No.4 in the said suit. In the said suit,
appellants has been placed ex-parte. Decree was passed
granting 1/9th share to the respondents/plaintiffs.
Seeking implementation of the same, the plaintiffs
initiated Final Decree Proceedings in F.D.P.No.5/2021.
Even in the said FDP proceedings, appellant herein was
placed ex-parte. A Court Commissioner was appointed,
who had filed his report on 03.06.2022. It appears
appellant herein had engaged a Counsel and had filed an
application seeking pre-ponement of the said F.D.P
proceedings. On 06.06.2022, the plaintiffs stated that they
had no objection for accepting the Court Commissioner's
report. Similar was the statement that was made on
behalf of defendant No.2, stating that they had no
objection to accept the Commissioner's report.
Accordingly, the Trial Court accepted the Commissioner's
report and passed the Orders in the Final Decree
Proceedings dated 29.07.2022.
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3. Being aggrieved by the same, the appellant herein
filed the Regular Appeal before the First Appellate Court.
The First Appellate Court on perusal of the order sheet and
previous records came to the conclusion that the F.D.P.
proceedings have been concluded by the Trial Court in
view of there being no objection from anyone despite
sufficient opportunity having been granted to the parties.
As such, the appellant could not have any grous of he not
having been provided with any opportunity.
4. Aggrieved by the same, appellant is before this
Court. The only ground urged in the memorandum of the
appeal is that the appellant herein was not provided any
opportunity to file objections either in the F.D.P
proceedings or to the Commissioner's report, thereby,
depriving him of an opportunity of presenting his case.
5. Perusal of the record would indicate that the
appellant herein was arrayed as defendant No.2 in the
original suit. In the original suit he has remained ex-parte
and the decree passed in the original suit has not been
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challenged. Even in the F.D.P proceedings, the appellant
herein has remained ex-parte. Even the said F.D.P
proceeding has not been challenged. Since there was no
objection, the Trial Court accepted the Commissioner's
report and has concluded the F.D.P proceedings. As
against all these proceedings, an appeal is filed only on
the ground of appellant herein not having been provided
any opportunity of filing objection to the report of the
Commissioner.
6. The First Appellate Court having taken into
consideration of the fact that the appellant herein had
never participated in any proceedings at any stage and he
having been placed ex-parte and said orders not having
been challenged, could not have claimed deprivation of
opportunity. Accordingly, dismissed the appeal.
7. Even in the present appeal, except contending
that the appellant was not provided opportunity, nothing is
put forth. In view of the fact that the original preliminary
decree that was passed in O.S.No. 339/2019 and the F.D.P
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proceedings having attained finality, merely because the
appellant herein was not given opportunity to file the
objection to the Commissioner's report, who took no
interest in the participating in the proceedings, this Court
do not see any reason to interfere.
8. No substantial question of law would therefore
arise for consideration. Accordingly, appeal is dismissed.
Sd/-
(M.G.S.KAMAL)
JUDGE
RL
CT:PK
