Karnataka High Court
Shekappa S/O Kallappa Ankalaki vs Smt. Neelamma Alias Nirmala W/O ... on 28 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:1620
RFA No. 100452 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.100452 OF 2024 (PAR/POS)
BETWEEN:
1. SHEKAPPA S/O. KALLAPPA ANKALAKI,
AGE. 56 YEARS, OCC. AGRICULTURE,
R/O. BAGADAGERI, TQ. KALAGHATAGI,
DIST. DHARWAD-581196.
2. SMT. BASAVVA W/O. MAHADEVAPPA MARILINGANAVAR,
AGE. 54 YEARS, OCC. AGRICULTURE,
R/O. BAGADAGERI, TQ. KALAGHATAGI,
DIST. DHARWAD-581196.
3. BASAPPA S/O. KALLAPPA ANKALAKI,
AGE. 50 YEARS, OCC. AGRICULTURE,
R/O. HANCHINAL, TQ. SOUDATTI,
DIST. BELAGAVI-581196.
...APPELLANTS
Digitally signed by (BY SRI B.V. SOMAPUR, ADVOCATE)
MALLIKARJUN
RUDRAYYA KALMATH
Location: HIGH AND:
COURT OF
KARNATAKA 1. SMT. NEELAMMA @ NIRMALA W/O. MANJUNATH MALALI,
AGE. 42 YEARS, OCC. AGRICULTURE,
R/O. BAGADAGERI, TQ. KALAGHATAGI,
DIST. DHARWAD-587212.
2. PRAVEEN S/O. HANAMANTAPPA BENAKATTI,
AGE. 35 YEARS, OCC. HOUSEHOLD WORK,
R/O. KADARKOPPA, TQ. MUDHOL,
DIST. BAGALKOT-580112.
...RESPONDENTS
(BY SRI V.G. BHAT, ADVOCATE FOR R1;
R2-NOTICE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
R/W. ORDER 41 RULE 1 OF CPC., PLEASED TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC, KALAGHATAGI IN O.S. NO.127/2023 DATED 16.03.2024,
REMAND THE MATTER TO THE TRIAL COURT FOR FRESH HEARING BY
GIVING OPPORTUNITY TO THE APPELLANTS/DEFENDANTS, TO FILE
THEIR WRITTEN STATEMENT AND PRODUCE ORAL AND
DOCUMENTARY EVIDENCE, GRANT COST OF THE ENTIRE
PROCEEDING TO THE APPELLANTS AND ETC.,
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NC: 2025:KHC-D:1620
RFA No. 100452 of 2024
THIS REGULAR FIRST APPEAL, COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This appeal is filed by defendants No.1 to 3,
challenging the judgment and decree dated 16.03.2024,
passed in O.S.No.127/2023, by the Court of
Senior Civil Judge and JMFC, Kalaghatagi (hereinafter
referred to as the 'Tribunal'), thereby the suit filed for
partition and separate possession is decreed by the Trial
Court.
2. For the purpose of convenience and easy
reference, ranking of the parties is referred to as per their
status before the trial Court.
3. The plaintiff had filed a suit for partition and
separate possession by claiming that the suit schedule
properties are ancestral and joint family properties.
4. It is the case of the plaintiff that the plaintiff
and defendants No.1 to 3 constitute joint family. The
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defendant No.4 is purchaser of the property from
defendants No.1 and 3. In the suit, summonses were
served to defendants. It is observed in the cause title that
all the defendants No.1 to 4 were served and defendants
No.1 and 3 were represented by advocate one
Sri. M. Nagaraj. Defendants No.2 and 4 were placed
an ex-parte.
5. In the suit, there is no evidence from the
defendants, both orally and documentarily. Therefore, the
trial Court by accepting the case of the plaintiff, decreed
the suit in favour of plaintiff.
6. The learned counsel for the
appellants/defendants No.1 to 3 submitted that the
defendants No.1 and 3 have engaged service of advocate
Sri. M. Nagaraj, but the said advocate died on 11.03.2024
and has produced the copy of death certificate of the said
advocate. The trial Court has passed judgment and decree
on 16.03.2024. Therefore, under these circumstances, the
defendants No.1 to 3 could not know the proceedings in
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the suit, since their advocate died. But in the meantime,
the trial Court has proceeded to pass the judgment and
decree five days after death of the aforesaid advocate.
Therefore, prays to remand the case to the trial Court by
giving an opportunity to the defendants to contest the
suit.
7. Upon perusal of the judgment and decree, it is
shown that the defendants No.1 and 3 are represented by
advocate one Sri. M.Nagaraj. The defendants No.2 and 4
are placed ex-parte. The counsel for appellants/defendants
No.1 to 3 submitted death certificate stating that advocate
Sri. M.Nagaraj died on 11.03.2024. The judgment is
passed on 16.03.2024. Therefore, there could not be
effective representation on behalf of the defendants. The
date of death of the advocate for defendants No.1 and 3
and date of passing judgment are too close. That the
defendants could not get notice of death of the aforesaid
advocate. Therefore, the judgment and decree passed is
amounting to without representation of the defendants.
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Therefore, the judgment and decree passed by the trial
Court is liable to be set aside and remanded the matter to
the trial Court for fresh consideration. The defendants are
given liberty to engage advocates and file written
statement and contest the suit.
8. Hence, I proceed to pass the following:
ORDER
i. The appeal is allowed.
ii. The judgment and award dated
16.03.2024 passed in O.S. No.127/2023
on the file of Senior Civil Judge and
JMFC, Kalaghatagi, is hereby set aside.
iii. The matter is remanded to the Tribunal
for fresh consideration.
iv. The defendants are permitted to file
written statement.
v. All the contentions of the parties are left
open.
vi. Both the parties are given liberty to lead
further additional evidence if they are so
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advised either oral, documentary or
both.
vii. Both the parties in this appeal shall
appear before the Tribunal on
17.02.2025 without expecting any notice
from the Tribunal.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
RKM
