Karnataka High Court
Lakshman vs Manja on 29 October, 2024
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MFA No. 100900 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.100900 OF 2021 (CPC)
BETWEEN:
TULASI HANUMAN NAIK,
SINCE DECEASED BY LRS.,
1. LAKSHMAN HANUMA NAIK,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURIST, R/O: AAIGOD,
AT PRESENT TORANAKOPPA,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
2. JATYA HANUMA NAIK.
AGED ABOUT 48 YEARS,
OCC: AGRICULTURIST, R/O: AAIGAD,
AT PRESENT TORANAKOPPA,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
Digitally signed
by SAROJA
HANGARAKI
3. ANAND HANUMA NAIK.
Location: High AGED ABOUT 38 YEARS, OCC: AGRICULTURIST,
Court of
Karnataka R/O: AAIGAD, AT PRESENT TORANAKOPPA,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
4. KANNE YANE KALAVATI W/O. KERIYAPPA NAIK,
AGED ABOUT 57 YEARS, OCC: HOUSEHOLD,
R/O: ANDAVALLI, SORAB TALUK - 577 429,
SHIVAMOGGA DISTRICT.
5. UMTA W/O. HANUMNTAPPA,
AGED ABOUT 35 YEARS,
OCC: COOLIE, R/O: YALAVALLI,
MAVALLI, SORAB TALUK - 577 429,
DISTRICT: SHIVAMOGGA.
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MFA No. 100900 of 2021
6. JAYALAXMI W/O. RAMESH,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURIST,
R/O: MOODALLI, TYAGALI,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
...APPELLANTS
(BY SRI LINGESH V. KATTEMANE, ADVOCATE FOR
SRO S.G.KADADAKATTI, ADVOCATE)
AND:
DEVI W/O. RAMA NAIK
SINCE DECEASED BY LRS.,
1. MANJA RAMA NAIK,
SINCE DECEASED BY HIS LRS.,
1A. YAMUNA KOM MANJU NAIK,
AGE: 60 YEARS, OCC: AGRICULTURIST,
R/O: IGODU, POST: KANGODU,
TALUK: SIDDAPUR(U.K), PIN CODE: 581 355.
2. ANNAPPA MRAMA NAIK,
AGED ABOUT 49 YEARS,
OCC: AGRICULTURIST,
R/O: EAIGOD, SIDDAPUR, TQ - 581 355,
UTTARA KANNADA DISTRICT.
3. MANJAMMA W/O. MABLESHWAR NAIK,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURIST,
R/O: HANJAGI, AKKUNKI VILLAGE,
SIDDAPUR TQ - 581 355,
UTTARA KANNADA DISTRICT.
4. PARVATI W/O. NAGESH NAIK,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURIST AND HOUSEWIFE,
R/O: SOORGUPPERAMANE,
EAIGOD, SIDDAPUR TQ - 581 355,
UTTARA KANNADA DISTRICT.
5. SHIVA KERIYA NAIK,
SINCE DECEASED BY HIS LR'S.
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MFA No. 100900 of 2021
5A. GANAPATI SHIVA NAIK,
AGED 40 YEARS, OCC: AGRICULTURIST,
R/O: IGODU, POST: KANGODU,
TALUK: SIDDAPURA (U.K), PIN CODE: 581 355.
5B. SURESH SHIVA NAIK,
AGED 36 YEARS, OCC: AGRICULTURIST,
R/O: IGODU, POST: KANGODU,
TALUK: SIDDAPURA (U.K), PIN CODE: 581 355.
5C. SHARAVATI KOM RAJAPPA NAIK,
AGED 42 YEARS, OCC: AGRICULTURIST,
IRAPPANA MANE,
NEAR MARIKAMBA TEMPLE
HALE SORABA, TALUK: SORABA,
DIST: SHIMOGGA, PIN - 577 429.
6. MADEVI KOM KANNA NAIK,
SINCE DECEASED BY HIS LRS.
6A. NAGESH KANNA NAIK,
AGED 71 YEARS, OCC: AGRICULTURIST,
R/O: BIKKALSE VILLAGE, TQ: SIDDAPUR,
DIST: U.K., PIN: 581 355.
6B. GANAPATHI KANNA NAIK,
AGED 58 YEARS, OCC: AGRICULTURIST,
R/O: BIKKALSE VILLAGE, TQ: SIDDAPUR,
DIST: U.K., PIN: 581 355.
6C. MAHABALESHWAR KANNA NAIK,
AGED 49 YEARS, OCC: AGRICULTURIST,
R/O: BIKKALSE VILLAGE, TQ: SIDDAPUR,
DIST: U.K., PIN: 581 355.
6D. RENUKA K W/O. MANJUNATH,
AGED 57 YEARS, OCC: AGRICULTURIST,
R/O: 1ST CROSS SRIDHAR NAGAR SAGAR,
DIST: SHIMOGGA, PIN: 577 401.
6E. SHARADA RAMACHANDRA NAIK,
AGED 38 YEARS,
OCC: AGRICULTURIST,
R/O: AAIGOD, TQ: SIDDAPUR,
DIST: U.K., PIN: 581 355.
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MFA No. 100900 of 2021
6F. SUSHEELA ISWAR NAIK,
AGED 60 YEARS, OCC: AGRICULTURIST,
R/O: BIKKALSE VILLAGE, TQ: SIDDAPUR,
DIST: U.K., PIN: 581 355.
6G. PARWATHI PANDI NAIK,
AGED 58 YEARS, OCC: AGRICULTURIST,
R/O: KESINAGUDDE VILLAGE,
POST KOLIGI, TQ: SIDDAPUR,
DIST: U.K., PIN: 581 355.
6H. MAHALAXMI BANGARYA NAIK,
AGED 62 YEARS, OCC: AGRICULTURIST,
R/O: GUNTIGOND ROAD VILLAGE,
POST: BEDKANI, TQ: SIDDAPUR,
DIST: U.K., PIN: 581 355.
7. CHOWDI W/O. GANAPATI NAIK,
AGED ABOUT 69 YEARS,
OCC. AGRICULTURIST AND HOUSEHOLD,
R/O: KOLAGI, SHIRALAGI VILLAGE,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
8. LAKMI W/O. RAMA NAIK,
SINCE DECEASED BY HIS LRS.
8A. SHARADA KOM NARAYAN NAIK,
AGE: 60 YEARS, OCC: AGRICULTURIST,
R/O: MANAMANE, TQ: SIDDAPURA,
DIST: U.K.,
8B. DEVAKI KOM BEERA NAIK,
AGE: 56 YEARS, OCC: AGRICULTURIST,
R/O: HONAGADDE,
POST: HRASIKATTA,
TQ: SIDDAPURA, DIST: U.K.,
8C. GANESH RAMA NAIK,
AGE: 52 YEARS, OCC: AGRICULTURIST,
R/O: KANALLI, TQ: SIDDAPURA,
DIST: U.K.,
9. RAMACHANDRA MALLA NAIK,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURIST,
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MFA No. 100900 of 2021
R/O: KADKERI VILLAGE,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
10. RENUKA W/O. BANGARYA NAIK,
AGED ABOUT 64 YEARS,
OCC: AGRICULTURIST,
R/O: SAMPEKERI VILLAGE,
HOSUR, SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
11. DEVI W/O. RAMA NAIK,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURIST, R/O: BEDKANI,
SIDDAPUR TALUK,
UTTARA KANNADA DISTRICT.
12. SAVITRI W/O. GANAPATI NAIK,
AGED ABOUT 61 YEARS,
OCC: AGRICULTURIST,
R/O: GALAMANV VILLAGE,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
13. PARVATI W/O. PARSHURAM NAIK,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURIST, R/O: GOLGOD VILLAGE,
SIDDAPUR TALUK - 581 355,
UTTARA KANNADA DISTRICT.
...RESPONDENTS
(BY SRI BEERESH N.K., ADVOCATE FOR
SRI S.R.HEGDE AND ASSOCIATES,
SRI P.K.SANNINGAMMANAVAR, ADVOCATE FOR R2 TO R4;
V/O DATED 29.10.2024, NOTICE TO R7, R9 TO R13,
R5(C), R8(C) ARE DISPENSED WITH;
NOTICE ISSUED TO R1(A), R5(A TO C); R6(A TO H);
R8(A), (B) ARE SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER XLIII RULE (C) R/W
SECTION 104 OF C.P.C., PRAYING TO, CALL FOR RECORDS; SET
ASIDE THE ORDER DATED 26.02.2016 PASSED BY THE SENIOR
CIVIL JUDGE, SIRSI ITINERARY COURT AT SIDAAPUR, ON I.A.NO.I
IN CIVIL MISC.CASE NO.17/2016 AND CONSEQUENT DISMISSAL OF
CIVIL MISC. NO.17/2016 AND TO ALLOW THE PETITION IN THE
ENDS OF JUSTICE AND ETC.,
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MFA No. 100900 of 2021
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present appeal is filed challenging the order
dated 24.03.2020 passed in Civil.Misc.No.17/2016 by the
Court of Senior Civil Judge, Sirsi, Itinerary Court at
Siddapur1.
2. The relevant factual matrix leading to the
present appeal is that one Tulasi W/o Hanuma Naik and
Others instituted a suit in O.S.No.56/2009 for partition
and separate possession before the Court of Civil Judge,
Siddapur2. The said suit was contested by the defendants.
The Trial Court vide judgment and decree dated
01.10.2013 partly decreed the suit and passed the
following:
"The suit of the plaintiff is Partly decreed as
follows.
Hereinafter referred to as 'First Appellate Court'
Hereinafter referred to as 'Trial Court'
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The branch of Hanuma that is Plaintiffs
together are entitled to 1/4th share in suit schedule
properties by metes and bounds.
The branch of Rama and Defendant No.6 are
entitled to 1/4th share each in suit schedule
properties by metes and bounds.
The registered will dated: 6-7-1978 executed
by Keriya Jatya Naik- Propositus is legal. The
beneficiary of the Will Defendant No.2 is entitled to
the property bequeathed in his favour by the
Testator to the extent of 1/4th share in suit
schedule properties.
The relief of declaration prayed by the
Plaintiffs is dismissed.
In the circumstances the parties are directed
to bear their own costs.
Draw preliminary decree accordingly."
3. Being aggrieved, the plaintiffs preferred
R.A.No.105/2013 before the First Appellate Court. Vide
order dated 26.02.2016, the said R.A.No.105/2013 was
dismissed for non-prosecution. The plaintiff Nos.2 to 7
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filed Civil.Misc.No.17/2016 under Order IX Rule 9 read
with 151 CPC for restoration of R.A.No.105/2013. Since
Civil.Misc.No.17/2016 was filed belatedly, I.A.No.1 was
filed under Section 5 of the Limitation Act to condone the
delay of 284 days in filing the petition. Vide order dated
24.03.2020, the First Appellate Court dismissed I.A.No.1
filed under Section 5 of the Limitation Act and
consequently dismissed the Civil.Misc.No.17/2016. Being
aggrieved, the present appeal is filed.
4. Heard the submissions of learned counsel,
Sri.Lingesh V Kattemane for the appellants and learned
counsel Sri.Beeresh N.K. for the respondents No.2 to 4
and perused the appeal papers.
5. It is forthcoming that the First Appellate Court
vide its order dated 24.03.2020 has recorded a finding
that the applicants were not diligent in conducting the
appeal as well as Civil.Misc.No.17/2016 and that no
reasons have been assigned for condoning the delay for
appearance.
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6. It is forthcoming that the appellants were the
plaintiffs in the suit for partition which has been partly
decreed. The appellants have filed the R.A.No.105/2013.
The said appeal was not effectively prosecuted by the
appellants resulting in its dismissal vide order dated
26.02.2016. The First Appellate Court while passing the
order dated 24.03.2020 has noticed that the appellants
were not diligent in conducting the appeal as well as
Civil.Misc.No.17/2016.
7. Learned counsel for the appellants assailing the
said order, vehemently contends that they were regularly
appearing before for the Trial Court and that they were not
aware of the death of their counsel and hence they were
unable to effectively prosecute the appeal.
8. Having regard to the fact that the appeal that
was sought to be prosecuted by the appellants arises out
of the suit for partition, where valuable rights in
immovable property have been adjudicated and the first
appeal being a valuable right available to the appellants, it
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is expedient that the appellants be afforded another
opportunity to contest R.A.No.105/2013.
9. In view of the aforementioned, the following:
ORDER
i. The above appeal is allowed;
ii. The order dated 24.03.2020 passed on I.A.No.1
in Civil.Misc.No.17/2016 by the Senior Civil
Judge, Sirsi, Itinerary Court at Siddapur is set
aside;
iii. I.A.No.1 filed in Civil.Misc.No.17/2016 as well
as Civil.Misc.No.17/2016 filed on the file of the
Court of the Senior Civil Judge, Sirsi, Itinerary
Court at Siddapur are allowed and the order
dated 26.02.2016 dismissing the
R.A.No.105/2013 is recalled and
R.A.No.105/2013 is restored to file;
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iv. The appellants shall appear before the First
Appellate Court on 28.11.2024 without the
requirement of any further notice being issued
in this regard;
v. Consequent to the appearance of the
appellants, the First Appellate Court shall
proceed further in accordance with law;
vi. All contentions of the parties are left open.
Sd/-
(C.M. POONACHA)
JUDGE
Sh, CT-ASC
