Karnataka High Court
Smkt. Kasturibai W/O Hanamantasa ... vs Smt. Smita W/O Anil Kathare on 13 November, 2025
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NC: 2025:KHC-D:15511
RFA No. 100219 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 13TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100219 OF 2022 (PAR/POS)
BETWEEN:
1. SMT. KASTURIBAI
W/O HANAMANTASA KATHARE,
AGE. 72 YEARS, OCC. HOUSEHOLD WORK,
R/O. VINAYAK COLONY, LOKAPPAN HAKKAL,
VIDYA NAGAR, HUBBALLI-580 031.
2. ANIL S/O HANAMANTASA KATHARE,
AGE. 47 YEARS, OCC. BUSINESS,
R/O. VINAYAK COLONY, LOKAPPAN HAKKAL,
VIDYA NAGAR, HUBBALLI-580 031.
3. ARUN S/O HANAMANTASA KATHARE,
AGE. 44 YEARS, OCC. BUSINESS,
R/O. VINAYAK COLONY, LOKAPPAN HAKKAL,
VIDYA NAGAR, HUBBALLI-580 031.
... APPELLANTS
(BY SRI. S.S. NIRANJAN, ADVOCATE)
AND:
Digitally signed by SMT. SMITA W/O ANIL KATHARE,
CHANDRASHEKAR
LAXMAN
KATTIMANI
AGE. 40 YEARS, OCC. HOUSEHOLD WORK,
Location: HIGH
COURT OF R/O. SHARADA APARTMENT, FIRST LOOR,
KARNATAKA
DHARWAD BENCH CBT FORT, HUBBALLI-580 020.
... RESPONDENT
(BY SRI. R.H. ANGADI, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41
RULE 1 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 02.12.2021 DECREEING ORIGINAL SUIT NO.209/2018 PASSED
BY THE LEARNED III ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HUBBALLI AND DISMISS ORIGINAL SUIT
NO.209/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI BY
ALLOWING THIS APPEAL WITH COST THROUGHOUT.
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NC: 2025:KHC-D:15511
RFA No. 100219 of 2022
HC-KAR
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE)
This Regular First Appeal is filed by the
appellants/defendants against the judgment and decree dated
02.12.2021 passed in O.S.No.209/2018 by the III Additional
Senior Civil Judge, Hubballi1. The suit filed by the
plaintiff/respondent for the relief of partition and separate
possession is decreed by the Trial Court.
2. It is noticed that the defendants, though represented by
an advocate, have not filed a written statement nor was there
any cross-examination of the witnesses on behalf of the plaintiff.
Under these circumstances, the suit stands decreed.
3. The present appeal is filed on the premise that the
appellants/defendants were prevented from contesting the
matter on account of genuine difficulty, and as such, there was
no effective representation on their behalf.
Fort short, 'Trial Court'
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HC-KAR
4. Learned counsel appearing for the plaintiff/respondent
would submit that the appellants have not made out a case to
seek permission to contest the matter on merits, as they have
not availed the opportunity, which was granted by the Trial
Court.
5. The Court has considered the contentions raised at the
Bar and perused the records.
6. Admittedly, the decree is an exparte decree, in the
sense there was no contest. The defendants though they
appeared through an advocate, did not file a written statement.
The suit was instituted in the year 2018 and is one for partition
and separate possession.
7. In order to do complete justice to the parties, this Court
is of the view that the decree can be set aside, permitting the
defendants to contest the matter on certain terms.
8. However, if the defendants are permitted to file a
written statement and contest the matter, it certainly goes
without saying that the plaintiff would be put to inconvenience,
as the adjudication would be delayed. Therefore, the defendants,
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HC-KAR
for their inaction in not filing a written statement within time,
must appropriately compensate the plaintiff, and be put on
terms.
9. With these observations, the following:
ORDER
a) The appeal is allowed in part.
b) The judgment and decree dated 02.12.2021
passed in O.S.No.209/2018 by the III
Additional Senior Civil Judge, Hubballi, is set
aside.
c) The matter is remitted to the Trial Court for
afresh consideration.
d) Within 30 days from the date of appearance
before the Trial Court, the defendants shall file
their written statement.
e) The parties shall appear before the Trial Court
on 01.12.2025.
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HC-KAR
f) The defendants shall pay a cost of ₹40,000/- to
the plaintiff. Payment of the said cost shall be
a condition precedent to file written statement
on the date of appearance.
g) The defendants shall co-operate with the Trial
Court for the early disposal of the suit.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
PMP
CT:BCK
