Karnataka High Court
Khalil S/O Syed Jalaluddin Peerzade vs Sayed Nasriuddin on 25 January, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 111921 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.111921 OF 2017 (GM-CPC)
BETWEEN:
1. KHALIL S/O. SYED JALALUDDIN PEERZADE,
AGE: 57 YEARS, OCC: EMPLOYEE IN DEFENCE,
R/O: B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
2. ANWAR S/O. SYED JALALUDDIN PEERZADE,
AGE: 67 YEARS, OCC: EMPLOYEE IN DEFENCE,
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
3. SATTAR S/O. SYED JALALUDDIN PEERZADE,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
ASHPAK
KASHIMSA
MALAGALADINNI
4. NAJUMUNNISA W/O. ABDULRAZAK SHAKH,
Digitally signed by
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
ASHPAK KASHIMSA
MALAGALADINNI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.01.29 11:44:10
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
+0530
PUNE CITY, MAHARASHTRA.
5. NOORJAHA W/O. ABDULRAZAK SHAKH,
AGE: 67 YEARS, OCC HOUSEHOLD WORK,
R/O: MUMBAI, NOW R/AT @ TREE TOP B BLOCK,
SHOLAPUR BAZAR, PUNE CITY, MAHARASHTRA.
6. RAZIYA W/O. NABILAL KHALIFA,
AGE: 63 YEARS, OCC: EMPLOYEE IN DEFENCE,
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
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7. ASHRAFUNNISA W/O. ALLABHAKSH HUSEN MULLA,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: BARAMATI, DIST: PUNE,
NOW @ TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
...PETITIONERS
(BY SRI. NANDISH PATIL, ADVOCATE)
AND:
1. SAYED NASRIUDDIN,
S/O. SYED NAJEERUDDIN PEERAZADE,
R/BY. HIS GPA, SMT. HASEENA BEGAM,
W/O. SYED NASIRUDDIN PEERZADE,
AGE: 40 YEARS, OCC: HOUSEWIFE,
R/O: THOUHEED MANZIL, SYCALGAR STREET,
RANEBENNUR, DIST: HAVERI,
DECEASED BY HIS LRS.
1A. SMT. HASEENA BANU
W/O. SYED NAJEER PEERZADE,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O: CYCLGAR ONI, RANEBENNUR TOWN, DIST: HAVERI.
1B. SMT. SHABANA BANU W/O. ABDUL RAHEMAN AIRANI,
AGE: 29 YEARS, OCC: HUOSEHOLD,
R/O: KOTI, RABBANI GALLI,
RANEBENNUR TOWN, DIST: HAVERI.
1C. SMT. FARZANA BANU W/O. MUBARAK SHAIK,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O: KOTI, MARUTI MANDIR,
HOUSING BOARD, MADGON, STATE GOA.
1D. SAYYED SOLAUDDIN
S/O. SAYYED NASIR PEERZADE,
AGE: 20 YEARS, OCC: STUDENT,
R/O: CYCLGAR ONI,
RANEBENNUR TOWN, DIST: HAVERI.
1E. KUMARI UMMIE AYEMAN
D/O SAYYED NASIR PEERZADE,
AGE: 18 YEARS, OCC: STUDENT,
R/O: CYCLGAR ONI,
RANEBENNUR TOWN, DIST: HAVERI.
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1F. SAYYED NOORUDDIN
S/O. SAYYED NASIR PEERZADE,
AGE: 16 YEARS, OCC: STUDENT,
R/O: CYCLGAR ONI,
RANEBENNUR TOWN, DIST: HAVERI.
BEING MINORS 1(F) ARE
R/BY. THEIR NEXT FRIEND
NATURAL GUARDIAN MOTHER 1(A)
2. SAYED RAFIQ S/O. SAYED NAJEERUDDIN PEERZADE,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
3. SAYEEDA W/O. MOHAMED WARIS KHAJI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
4. AMEENABI W/O. SAYED SAJEERUDDIN PEERZADE,
AGE: 71 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
5. SAYED MUNEERUDDIN S/O. SAYED RAFIUDDIN
PEERZADE,
SINCE DECEASED BY HIS LRS,
5A. SYED NIZAM SAYED MUNEERUDDIN PEERZADE,
AGE: 41 YEARS, OCC: EMPLOYEE,
R/O: RANEBENNUR, DIST: HAVERI.
5B. SALMA D/O. SAYED MUNEERUDDIN PEERZADE,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, DIST: HAVERI.
5C. KHUSHNUDA D/O SAYED MUNEERUDDIN PEERZADE,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, DIST: HAVERI.
5D. MAHMOODUNNISA D/O SAYED MUNEERUDDIN
PEERZADE,
AGE: 81 YEARS, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, DIST: HAVERI.
6. ABDULMAJEED S/O. CHAMANSAB KAMADOD,
AGE: 71 YEARS, OCC: RETIRED TEACHER,
R/O: RANEBENNUR, DIST: HAVERI.
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7. UMARSATI S/O. MUSASAIT KATHEWADE,
AGE: 81 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
8. MOHAN S/O. SHAMAPPA BENNUR,
AGE: MAJOR, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
...RESPONDENTS
(BY SRI. N.P. VIVEKMATH, ADVOCATE FOR
R1(A-C), R1(F), R1(F) IS MINOR R/BY R1(A);
SRI. M.H. PATIL, ADVOCATE FOR R1(D), R4, R5(B-C) & R6;
NOTICE TO R1(E),R2,R3,R5(A),R5(D),R8 IS DISPENSED WITH;
NOTICE TO R7 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE WRIT IN THE
NATURE OF CERTIORARI IN QUASHING THE IMPUGNED ORDER
DATED 31.08.2017 PASSED BY THE COURT OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HAVERI SITTING AT RANEBENNUR
IN R.A. NO.33/2013 VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking for
the following reliefs:
A. Issue Writ in the nature of certiorari in quashing the
impugned order dated 31.08.2017 passed by the
court of II Addl. District And Sessions Judge, Haveri
sitting at Ranebennur, in R.A. No.33/2013 vide
ANNEXURE-A, in the interest of justice and equity.
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B. Issue such other suitable order/s or directions as this
Hon'ble Court deems fit and proper in the nature and
circumstances of the case, in the interest of justice
and equity.
2. Petitioners are aggrieved by the order dated
31.08.2017 passed in R.A.No.33 of 2013 on I.A.no.1
filed under Section 5 of the Limitation Act.
3. R.A.No.33 of 2013 had been filed challenging the
Judgment and Decree passed in O.S.No.72 of 2006,
which was a suit for partition, which came to be
decreed on 02/11/2009. Subsequent to the said
Judgment and decree, FDP proceedings in FDP
No.10/2010 having been filed. Final decree was
directed to be drawn up on 21/04/2012.
4. Subsequently execution proceedings were filed in
Ex.P.No.270 of 2012, wherein possession delivery
warrant was issued and executed, and execution
petition was closed on 16/02/2013.
5. It is thereafter that R.A.No.33 of 2013 had been filed
along with an application seeking for condonation of
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delay of 1227 days, which came to be allowed by the
impugned order.
6. The submission of Shri Nandish Patil learned counsel
for the petitioners is that the petitioners have
followed all procedures, inasmuch as, notice having
been issued to the address of the appellant, the
notice not being capable of being served. Notice was
affixed on the last known address of the petitioner,
which is accepted by trial Court and the matter
proceeded with. Therefore, service of notice having
been accepted to be completed and the suit having
been proceeded and decreed. It is only after the
execution of the final decree drawn up in pursuance
of the preliminary decree that the appeal is filed. The
appeal being completely belated and there being no
acceptable reasons to indicate as to why appellant
did not appear in the suit and contest the matter.
The trial Court ought not to have condoned the
delay.
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7. His further submission is that during the course of
evidence, the petitioners have cross-examined the
respondent, who has categorically accepted that he
came to India in the year 1996, 1998, 2008 as also
in the year 2012-13 to perform the marriage of his
daughter and as such he was aware of the pendency
of the suit and has chosen deliberately not to appear
in the suit and on that ground, he submits that the
order of the first appellate Court not being proper, is
required to be set aside.
8. Shri N.P. Vivek Mehta, learned counsel appearing for
respondents submits firstly that the respondent was
not residing in the address shown in the cause title,
he was residing in Saudi Arabia. His wife and children
were residing at Cycalgar Oni of Ranebennur town.
The respondent was working as a Driver in Saudi
Arabia, which is evidenced by the documents
including the passport, which has been produced by
him.
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9. This fact of respondent working in Saudi Arabia was
known to all the family members, without furnishing
the proper and correct address, a wrong address had
been furnished to take advantage of the absence of
the respondent. This aspect has been considered in a
proper manner by the trial Court and as such he
submits that the order passed by the trial Court need
not be in proceeded with.
10. Heard Sri Nandish Patil learned counsel for the
petitioners and Sri N.P.Vivek Mehta for respondents
No.1(A) to 1(C), 1(F) so also Sri M.H.Patil, advocate
for respondents No.1(D), 4, 5(B) to 5(c) and 6.
11. At first blush a delay of 1227 days being condoned by
the 1st appellate Court appears to be unreasonable.
However, the same would have to be looked into on
the basis of the facts of the matter and in the context
of the suit. It is undisputed that the petitioners and
the respondents are related to each other and the
suit is one for partition.
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12. A passport of respondent has been produced which
categorically indicating that he is working in Saudi
Arabia and he had visited India on stray occasions in
the year 1993, 1996, 1998, 2008 and 2012-13. It is
based on this, Sri Nandish Patil learned counsel for
the petitioners submits that the respondent was
aware of the suit and having visited India on those
occasions ought to have participated in the suit.
13. If this fact to be taken into consideration, in its right
perspective, then there is an admission made by the
petitioners that the respondent was residing in Saudi
Arabia, was working in Saudi Arabia and used to only
visit India on those few occasions.
14. The suit having been filed in the year 2006. The
petitioners knowing fully well that the respondent
was residing abroad have given the address of
Ranebennur, which is the same address of all the
other defendants. The petitioner, who is the plaintiff
therein ought to have furnished the correct address
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of the respondent, if not of Saudi Arabia at least of
Cyclagar Oni, Ranebennur where the wife and
children were residing, without doing so, notice not
having been served came to be so served by way of
affixture.
15. Service by way of affixture is a weak service and
cannot be accepted, unless the plaintiff were to
categorically establish that the defendant was
residing or that address was where the defendant
was last residing. In this matter, the fact that the
passport has been produced and even according to
the petitioners the knowledge on part of the
respondent is on account of the respondent visiting
India on a few occasions, it being established that
the respondent was residing in Saudi Arabia. No such
presumption can be drawn of service by way of
affixture
16. These facts have been rightly taken into
consideration by trial Court and the trial Court being
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of the opinion that justice must be done and an
opportunity be provided to the defendants to contest
the matter, taking into also account that almost all
known modes of service have not been exercised by
the plaintiff to condone the delay. I do not find any
infirmity in the said order, the petition stands
dismissed.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
CKK
CT-MCK
