Smt. Rukmini W/O. Durgaji Bhimrao ... vs Subhas S/O. Late Krishnaji Damodar
2024 Latest Caselaw 27034 Kant

Karnataka High Court

Smt. Rukmini W/O. Durgaji Bhimrao ... vs Subhas S/O. Late Krishnaji Damodar on 12 November, 2024

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                                                            NC: 2024:KHC-D:16505
                                                         MFA No. 101597 of 2021




                                  IN THE HIGH COURT OF KARNATAKA,
                                          DHARWAD BENCH

                            DATED THIS THE 12TH DAY OF NOVEMBER, 2024

                                               BEFORE

                              THE HON'BLE MR. JUSTICE C.M. POONACHA

                        MISCELLANEOUS FIRST APPEAL NO.101597 OF 2021 (CPC)

                   BETWEEN:

                   SMT. RUKMINI W/O. DURGAJI BHIMRAO KUNTHE,
                   AGE: ABOUT 71 YEARS, OCC: HOUSEHOLD,
                   R/O: PLOT NO.24, SADASHIVNAGAR,
                   MICHAGUN COMPOUND,
                   DHARWAD - 580 003.
                                                                     ...APPELLANT
                   (BY SMT. KAVITA JADHAV, ADVOCATE FOR
                   SRI ARUN L. NEELOPANT, ADVOCATE)

                   AND:

                   1.     SUBHAS S/O. LATE KRISHNAJI DAMODAR,
                          AGE: ABOUT 67 YEARS, OCC: BUSINESS,
                          R/O: 28A, DAIVADNYA NAGAR,
                          HEBBALLI ROAD, WARD NO.8,
                          DHARWAD - 580 001.
Digitally signed
by SAROJA
HANGARAKI          2.     MANOJ S/O. LATE GOVIND DAMODAR,
Location: High
Court of
                          AGE: ABOUT 52 YEARS, OCC: BUSINESS,
Karnataka                 R/O: DAROGA STREET, RAMANAGOUDAR ONI,
                          DHARWAD - 580 001.

                   3.     VINAY S/O. LATE GOVIND DAMODAR,
                          AGE: ABOUT 46 YEARS, OCC: BUSINESS,
                          R/O: DAROGA STREET, RAMANAGOUDAR ONI,
                          DHARWAD - 580 001.

                   4.     ARUN S/O. LATE KRISHNAJI DAMODAR,
                          AGE: ABOUT 67 YEARS, OCC: BUSINESS,
                          R/O: C/O. K.G. DAMODAR AND SONS,
                          OPP. KCC, BANK, DHARWAD - 580 001.

                   5.     SATISH S/O. LATE KRISHNAJI DAMODAR,
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                                        NC: 2024:KHC-D:16505
                                    MFA No. 101597 of 2021




     AGE: ABOUT 63 YEARS, OCC: BUSINESS,
     R/O: 35C, RAJATGIRI,
     NEAR GANESH TEMPLE,
     DHARWAD - 580 004.

6.   MOULA ALI S/O. BABUSAB JAKATI,
     AGE: ABOUT 54 YEARS, OCC: BUSINESS,
     R/O: NAGARKAR COLONY,
     P.B.ROAD, HOSAYALLAPUR,
     DHARWAD - 580 007.

7.   KASHIMSAB I. SHETASANADI,
     AGE: ABOUT 55 YEARS, OCC: BUSINESS,
     R/O: NAGARKAR COLONY,
     P.B.ROAD, HOSAYALLAPUR,
     DHARWAD - 580 007.

8.   CHETAN W/O. CHIDANAND KAGATIKAR,
     AGE: MAJOR, OCC: SERVICE,
     R/O: PLOT NO.35, A1, RAJATGIRI,
     NEAR GANESH TEMPLE,
     DHARWAD - 580 004.

9.   RANGARAJ S/O. NARAYAN MASHALDI,
     AGE: MAJOR, OCC: SERVICE,
     R/O: PLOT NO.35, A1, RAJATGIRI,
     NEAR GANESH TEMPLE,
     DHARWAD - 580 004.
                                             ...RESPONDENTS
(BY SRI RAVI N. CHIKKARADDER, ADVOCATE FOR R6;
NOTICE TO R8 AND R9 ARE SERVED BUT UNREPRESENTED)

      THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CODE OF CIVIL
PROCEDURE, AGAINST THE ORDER DATED 26.07.2021 PASSED IN
MISC.NO.28/2019 ON THE FILE OF THE IV ADDITIONAL SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, DHARWAD
AND ETC.,

     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:



CORAM:    THE HON'BLE MR. JUSTICE C.M. POONACHA
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                                                        NC: 2024:KHC-D:16505
                                                      MFA No. 101597 of 2021




                                    ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present appeal is filed challenging the order

dated 26.07.2021 passed in Misc.No.28/2019 by the Court

of IV Additional Senior Civil Judge and JMFC., Dharwad1.

2. The factual matrix in nutshell leading to the present

appeal is that the appellant instituted a suit in

O.S.No.208/2013 for partition and separate possession. The

defendants entered appearance in the said suit and contested

the same. The suit was decreed vide the judgment and decree

dated 09.08.2019 and the Trial Court ordered as follows:

"It is ordered and Decreed that:-

The suit filed by plaintiff is hereby dismissed with cost.

It is hereby declared that the Defendant No.1 to 6 are the owners of the counter claim properties by virtue of the Will dated 05.06.1991 executed by late Krishnaji damodar.

The Sale Deed dated 09-01-2014 executed by the Plaintiff in favour of the Defendant No.8 is null and void and not binding on the Defendant No.1 to 6."

Hereinafter referred to as 'the Trial Court'

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3. Being aggrieved the appellant filed

Misc.No.28/2019. The respondents entered appearance in the

said proceedings and contested the same. The Trial Court by its

order dated 26.07.2021 dismissed the said petition. Being

aggrieved, the present appeal is filed.

4. Heard the submissions of learned counsel Smt.

Kavita Jadhav appearing for the learned counsel Sri.Arun L.

Neelopant and learned counsel Sri Ravi N. Chikkaradder for

respondent No.6.

5. It is the contention of the learned counsel for the

appellant that the appellant was suffering from health-related

ailments and that adequate material evidencing, the same has

been produced before the Trial Court. Hence, it is contended

that the Trial Court has erred in not adequately in appreciating

the documentary evidence on record and erred in dismissing

the petition filed by the appellant. It is further contended that

the plaintiff has not laid any evidence and an opportunity is

required to be afforded to the plaintiff to prosecute the suit filed

before the Trial Court.

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6. Per contra, learned counsel for respondent No.6

vehemently opposes the above appeal and contends that the

Trial Court has adequately considered the factual matrix and

dismissed the petition filed by the appellant which order ought

not to be interfered by this Court in the present appeal.

7. The submissions of both the learned counsels have

been considered and the materials on record have been

perused.

8. The appellant instituted O.S.No.208/2013 for

partition and separate possession. The said suit was contested

by the defendants by filing the written statement. The Trial

Court framed 6 issues and 1 additional issue. However, the

appellant, despite adequate opportunity having been afforded

did not appear before the Trial Court and not adduce any

evidence. The defendants regularly appeared before the Trial

Court and adduced evidence. The Trial court appreciating the

oral and documentary evidence on record, dismissed the suit as

also decreed the counter-claim by granting declaration as

sought for.

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9. It is forthcoming that in the suit, valuable rights in

immovable properties have been adjudicated upon. It is also

forthcoming that the appellant did not adduce any evidence in

the suit and in her absence, the Trial Court has adjudicated

upon the suit and the counter-claim.

10. It is the contention of the appellant that she was

suffering from medical ailments and hence, could not appear

before the Trial Court in the suit. The appellant examined

herself as PW.1 in Misc.No.28/2019. In the said proceedings,

the appellant has also produced a certificate dated 04.10.2019

(Ex.P.2) which demonstrates that the Doctor has issued a

certificate that the appellant was being treated for depression

from 21.05.2019 and prior to that, she was taking treatment at

National Institute of Mental Health and Neurosciences

(NIMANS) and that she was advised medication. The screening

registration slip issued by NIMANS (Ex.P.4) discloses that the

appellant was taking treatment for hyper tension and diabetes

and other ailments.

11. The Trial Court appreciating the said documents has

recorded a finding that the appellant has taken treatment from

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21.05.2019 and the suit was posted for evidence of plaintiff for

the first time on 21.05.2015 and that there is no explanation by

the appellant for not prosecuting the suit from the year 2013 to

2019.

12. It is relevant to note that Ex.P.4 discloses that the

appellant was taking treatment prior to 21.05.2019. In any

event the appellant has been produced medical records to

demonstrate that she was taking treatment for medical

ailments.

13. Having regard to the fact that in the suit filed by

the appellant, valuable rights have been adjudicated between

parties and the said adjudication has taken place without the

participation of the appellant, in the interest of justice, it is just

and proper that the appellant be afforded another opportunity

prosecute the suit. However, while such an opportunity is

required to be granted by imposing certain terms.

14. Learned counsel for the appellant seeks leave to file

reply to the counter-claim made by the defendants.

15. In view of the aforementioned, the following:

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ORDER

i) The above appeal is partly allowed.

ii) The order dated 26.07.2021 passed in

Misc.No.28/2019 by the Court of IV Additional

Senior Civil Judge and JMFC., Dharwad is set aside.

iii) Misc.No.28/2019 filed by the appellant on the file of

IV Additional Senior Civil Judge and JMFC.,

Dharwad is allowed and the judgment and decree

dated 09.08.2019 passed in O.S.No.208/2013 by

the IV Additional Senior Civil Judge and JMFC.,

Dharwad is set aside subject to the condition that

the appellant pays cost of ₹4,000/- to each of the

defendants on the date of appearance before the

Trial Court and also subject to the condition that

the appellant who is plaintiff before the Trial Court

shall adduce her evidence on the date of

appearance before the Trial Court as on the date

fixed by the Trial Court.

iv) The appellant shall appear before the Trial Court in

O.S.No.208/2013 on 04.12.2024 without

NC: 2024:KHC-D:16505

requirement of any further notice being issued in

this regard.

v) On the date of appearance, the appellant shall

deposit the cost as ordered above before the Trial

Court and shall also adduce her evidence in the suit

on the date fixed for the same by the Trial Court.

On the date fixed for appearance before the Trial

Court, the appellant shall also file reply to the

counter-claim if any. In the event, the appellant

does not deposit the cost or does not file reply to

the counter-claim or is not ready to adduce

evidence on the date fixed by the Trial Court, the

appellant shall lose the benefit of this order.

Sd/-

(C.M. POONACHA) JUDGE

SSP CT-ASC