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2025 Supreme(Kar) 1056
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
S.R. KRISHNA KUMAR, C.M. POONACHA, JJ.
Renuka w/o. Manikaprabu Talawayi - Appellant
Versus
Smt. Gangamma, W/o. Jayaraj Golasagi - Respondent
Regular First Appeal No. 100560 of 2023 (PAR)
Decided on : 15-09-2025
For the Appellant :SRI. SANTOSH B.MANE, ADVOCATE
For the Respondent: SRI. NOTICE TO R1 TO R4 AND R7 ARE HELD SUFFICIENT, NOTICE TO R5 AND R6 ARE SERVED, R8-DECEASED (R1 TO R5 ARE LR’s OF DECEASED R8
A party’s lack of representation in previous proceedings due to justifiable reasons warrants a reconsideration of the case to ensure fair trial rights.
Headnote:(A) Civil Procedure Code - Principles of natural justice - Lack of representation in trial court can be grounds for appeal. (Para 11)
(B) Partition and inheritance laws - Proof of ancestral properties and entitlement to shares therein, including additional parties necessary for the case. (Para 5)
Facts of the case:
Appellant, a defendant in the partition suit, failed to contest due to unawareness of proceedings after the counsel's demise. The Trial Court decreed in favor of plaintiffs without cross-examination of key witnesses.
Findings of Court:
The Court ruled to set aside the impugned judgment and decree and remand the matter for fresh consideration in the Trial Court.
Issues: Main issues included whether suit properties are ancestral and the entitlement to share for all parties involved, along with the impact of absent contested evidence.
Ratio Decidendi: The court emphasized the right to a fair hearing and the necessity to redress the lack of representation, advocating a justice-oriented approach.
Result: Appeal allowed; the impugned judgment and decree are set aside.
| Table of Content |
|---|
| 1. partition and shares in ancestral property. (Para 1 , 4 , 5) |
| 2. court’s process and reconsideration of the trial. (Para 2 , 3 , 9 , 10 , 12) |
| 3. need for representation and opportunity to defend. (Para 6 , 7 , 8) |
| 4. conclusion: appeal allowed and judgment set aside. (Para 13) |
JUDGMENT :
S.R. KRISHNA KUMAR, J.
This appeal by the defendant No.2 in OS No.4/2019 is directed against the impugned judgment and decree dated 12.11.2021 passed by the Senior Civil Judge and JMFC, Kundgol (for short, ‘the Trial Court’), whereby the suit filed by the plaintiffs/respondent Nos.1 and 2 herein against the appellants and other defendants for partition and separate possession of their alleged share in the suit schedule properties was decreed by the Trial Court in favour of the plaintiffs against the defendants.
2. Heard learned counsel for the appellant and perused the material on record.
3. The respondents, having been served with notice of the appeal, are unrepresented and have not contested the appeal.
4. A perusal of the material on record will indicate that the respondent Nos.1 and 2/plaintiffs instituted the aforesaid suit against the appellant/defendant No.2 for partition and separate possession of their alleged share in the suit schedule properties and for other reliefs.
5. It is a matter of record that the plaintiff Nos.1 and 2 are the daughters of defendant No.1-Veerappa and defendant No.7-Smt. Shantamma. The remaining daughters of Veerappa and Shantamma are defendant Nos.2, 3 and 4. In the said suit, the appellant/defendant No.2 filed her written statement along with defendant Nos.3, 1 and 7 and contested the suit pursuant to which the Trial Court framed the following issues and additional issues:
“ISSUES
1. Whether plaintiffs prove that, suit properties are their ancestral properties?
2. Whether the plaintiffs are entitled for 1/6th share in the suit properties ?
3. Whether the defendant No.1 is entitled for share in the suit properties?
4. Whether defendant No.4 is entitled for 1/6th share in the suit properties?
5. What Order or decree?
Additional Issues
6. Whether defendant No.2 and 3 proves that, Shantavva, Poornima, Manik Prabhu Talawai is necessary party to the suit?
7. Whether defendant No.2 and 3 proves alleged private partition amongst the parties?”
6. The plaintiff No.2 got herself examined as PW1 and Ex.P.1 to P6 were marked on behalf of plaintiffs. The material on record discloses that neither the appellant/defendant No.2, nor the other defendants cross examined PW1, nor adduced any oral or documentary evidence, as a result of which, the Trial Court proceeded to pass the impugned judgment and decree. Aggrieved by the same, the appellant/defendant No.2 is before this Court, by way of present appeal.
7. Learned counsel for the appellant would invite the attention of this Court to the order sheet maintained by the Trial Court in order to point out that subsequent to the matter being adjourned from 07.04.2021 to 25.05.2021, the learned counsel representing the appellant/defendant No.2 had expired on 08.05.2021, and his office colleagues did not inform the appellant/defendant No.2 about the case. As a result, the appellant/defendant No.2 was unaware of the proceedings and could neither cross examine PW1 nor lead any defence evidence, ultimately resulting in the impugned judgment and decree passed by the Trial Court.
8. It is submitted that the appellant has good case on merits and his failure to appear before the Trial Court, cross examine PW1, and adduce defence evidence was due to bona fide reasons, unavoidable circumstances, and sufficient cause and as such, it is just and necessary that the impugned judgment and decree passed by the Trial Court be set aside, and the matter be remitted back to the Trial Court for reconsideration afresh in accordance with law.
9. We have carefully perused the material on record and considered the submission made on behalf of the appellant.
10. A perusal of the order sheet maintained by the Trial
