Karnataka High Court

Smt.Rudravva vs State Of Karnataka on 6 February, 2025

                                                   -1-
                                                              NC: 2025:KHC-D:2643
                                                           RSA No. 100993 of 2016




                               IN THE HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH
                           DATED THIS THE 6TH DAY OF FEBRUARY, 2025
                                              BEFORE
                              THE HON'BLE MR. JUSTICE E.S.INDIRESH
                        REGULAR SECOND APPEAL NO. 100993 OF 2016 (DEC-)

                   BETWEEN:

                   SMT. RUDRAVVA
                   W/O. NIJAGUNEPPA MADIWALAR,
                   AGE: 61 YEARS, OCC: COOLIE,
                   R/O: KUSUGAL VILLAGE,
                   HUBBALLI TALUKA,
                   DISTRICT DHARWAD
                   NOW AT TADAKOD VILLAGE,
                   TALUK/DISTRICT DHARWAD -580001.

                                                                      ...APPELLANT

                   (BY SRI. C. N. HARLAPUR AND SRI. S.S.TATTIMANI, ADVOCATES)

                   AND:

                   1.   STATE OF KARNATAKA,
                        REP. BY DEPUTY COMMISSIONER,
VN                      DHARWAD,
BADIGER
                        DISTRICT: DHARWAD-580001.

                   2.   THE DEPUTY COMMISSIONER,
Digitally signed
by V N BADIGER          D.C.COMPOUND,
Location: High
Court of
Karnataka,
                        DHARWAD-580001.
Dharwad Bench
Date:
2025.02.12
15:49:43 +0530     3.   THE TASHILDAR,
                        HUBBALLI TALUKA,
                        MINI VIDHAN SOUDHA,
                        HUBBALLI-580020.
                                                                   ...RESPONDENTS

                   (BY SMT. MALAL B. BHUTE, AGA)

                                              ----------
                             -2-
                                          NC: 2025:KHC-D:2643
                                     RSA No. 100993 of 2016




      THIS RSA IS FILED UNDER SECTION 100 OF CIVIL
PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE PASSED IN R.A.NO.115/2015 BY THE HON'BLE I
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI VIDE DATED
27.02.2016 AND TO SET ASIDE THE JUDGMENT AND DECREE
PASSED O.S.NO.128/2015 BY THE HON'BLE II ADDITIONAL CIVIL
JUDGE AND JMFC-III COURT, HUBBALLI VIDE DATED 07.08.2015, IN
THE ENDS OF JUSTICE AND EQUITY.

    THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

CORAM:    THE HON'BLE MR. JUSTICE E.S.INDIRESH

                   ORAL JUDGMENT

1. This Regular Second Appeal is filed by the

plaintiff, challenging the judgment and decree dated

27.02.2016 passed in RA No.115 of 2015 on the file of

the I Additional Senior Civil Judge, Hubballi,

dismissing the appeal and confirming the judgment

and decree dated 07.08.2015 passed in OS No.128 of

2015 on the file of II Additional Civil Judge and III

JMFC, Hubballi, dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the trial Court.

NC: 2025:KHC-D:2643

3. The plaint averments are that, the plaintiff is the

legally wedded wife of Nijaguneppa Basappa @

Basavanneppa Madiwalar and their marriage was

solemnized on 22.02.1976 at Kusugal Village, and in

their wedlock, no children were born. It is the

grievance of the plaintiff that, her husband-

Nijaguneppa Basappa left the house on 31.08.1999 to

visit their relatives house, however, he did not

returned back and as such, the plaintiff has lodged a

complaint with the Hubballi Rural Police Station on

16.09.2014 and had taken paper publication in

'Vijayavani Kannada Daily Newspaper' on 01.10.2014.

Hence, it is the case of the plaintiff that, husband of

the plaintiff has not been traced out and as such,

plaintiff has filed OS No.128 of 2015, seeking

declaration that, her husband-Nijaguneppa Basappa is

presumed to be dead.

NC: 2025:KHC-D:2643

4. After service of summons, the defendants

entered appearance and filed detailed written

statement denying the averments made in the plaint.

They also sought for dismissal of the suit.

5. On the basis of the rival pleadings, the Trial Court

has formulated the issues for its consideration.

6. In order to establish the case, plaintiff has

examined three witnesses as PW1 to PW3 and got

marked 08 documents as Exs.P1 to P8. On the other

hand, no evidence has been adduced on the part of

the defendants.

7. The trial Court, after considering the material on

record, by its judgment and decree dated 07.08.2015

dismissed the suit of the plaintiff and being aggrieved

by the same, the plaintiff has preferred Regular

Appeal in RA No.115 of 2015 on the file of First

NC: 2025:KHC-D:2643

Appellate Court and the said appeal was resisted by

the defendants. The First Appellate Court, after re-

appreciating the facts on record, by its judgment and

decree dated 27.02.2016 dismissed the appeal and

confirmed the judgment and decree passed by the

Trial Court in OS No.128 of 2015. Being aggrieved by

the same, the appellant/plaintiff has preferred this

Regular Second Appeal under Section 100 of CPC.

8. This court vide order dated 19.04.2023 framed

the following substantial question of law for its

consideration.

"Whether the courts below were justified in not following the mandate provision of Selection 108 of the Indian Evidence Act, where the burden is on the person to prove that the said person is unheard for 7 years and plaintiff having examined PW2 and PW3 who are the brothers of NIjaguneppa Basappa @ Basavaneppa Madiwalar ?

NC: 2025:KHC-D:2643

9. I have heard Sri. C.N.Harlapur and Sri. S.S.

Tattimani, learned counsel for the appellants and

Smt. Mala B. Bhute, learned Additional Government

Advocate appearing for the respondent-State.

10. Sri. C.N.Harlapur, learned counsel for the

appellant submits that both the courts below have

committed an error in not considering the evidence on

record, wherein, PW3 who is elder brother of

Nijaguneppa (husband of the plaintiff) deposed that,

the said Nijaguneppa is missing from the year 1999.

Accordingly, sought for interference of this Court. He

also submitted that, in view of concurrent findings of

fact, liberty be reserved to the plaintiff to file one

more suit, seeking similar relief.

11. Per contra, Smt. Mala B. Bhute, learned

Additional Government Advocate appearing for the

respondent-State sought to justify the impugned

NC: 2025:KHC-D:2643

judgment and decree passed by the courts below and

accordingly, sought for dismissal of the appeal.

12. I have heard the learned counsel appearing for

both the parties and perused the records. On careful

examination of the finding recorded by both the courts

below would goes to show that, though the plaintiff

has stated that, her husband is missing from

31.08.1999, however, nothing is forthcoming from the

evidence of the plaintiff or in the pleadings, till the

lodging of the complaint at Hubballi Rural Police

Station on 16.09.2014 as to missing of the husband

and also to substantiate the said fact. The suit is filed

in the year 2015 and therefore, both the courts below

have rightly dismissed the claim made by the plaintiff.

Hence, I do not find any merit in the appeal and

substantial question of law framed above favours the

defendants. However, taking into consideration the

NC: 2025:KHC-D:2643

fact that the suit is of the year 2015 and the

substantial question of law is framed on 19.04.2023

and in this regard, the ends of justice would be met by

following the declaration of made by the Hon'ble

Supreme Court in the case of Estralla Rubber vs.

Dass Estate (Pt) Ltd., reported in 2001 8 SCC 97.

Therefore, I find force in the arguments advanced by

the learned counsel appearing for the appellant to

grant liberty to the plaintiff to file fresh suit on same

cause of action by taking into account the date of

missing of Nijaguneppa Basappa @ Basavaneppa

Madiwalar as 16.09.2014. Accordingly, I pass the

following:

ORDER

i) The Regular Second Appeal is dismissed;

ii) Judgment and decree dated 27.02.2016 passed

in RA No.115 of 2015 on the file of the I

Additional Senior Civil Judge, Hubballi,

NC: 2025:KHC-D:2643

dismissing the appeal and confirming the

judgment and decree dated 07.08.2015 passed

in OS No.128 of 2015 on the file of II Additional

Civil Judge and III JMFC, Hubballi, is hereby

confirmed.