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2023 Supreme(Online)(KAR) 16515
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WP No. 100152 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 100152 OF 2023 (GM-CPC)
BETWEEN:
SRI KOTREPPA,
S/O BUDDIVANTHAPPA KALAL,
AGE 80 YEARS, OCC. NIL,
R/O YELLAMMA ROAD,
IIIRD MAIN ROAD, 9TH CROSS,
DAVANAGERE,
TQ. DAVANAGERE 577002.
…PETITIONER
(BY SRI. VEERESH GADDADA, ADVOCATE)
AND:
1.
YELLAKKA W/O YELLAPPA KALAL
AGE : 51 YEARS, OCC: HOUSEHOLD
R/O: HUBLI ROAD, MUNDAGOD TOWN,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA-508244.
2.
LAXMIBAI PARASHURAM KALAL
AGE: 86 YEARS, OCC: HOUSEHOLD,
R/O: KALA ONI, TQ: MUNDGOD,
DIST:UTTARA KANNADA -508244
3.
BUDDIVANTAPPA,
S/O PARASHURAM KALAL
AGE: 51 YEARS, OCC: TEA STAL,
R/O: KALAL ONI, TQ: MUNDGOD.
DIST:UTTARA KANNADA. -508244
4.
BEDI S/O PARASHURAM KALAL
AGE: 56 YEARS, OCC: HOUSEHOLD
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WP No. 100152 of 2023
R/O: KALAL ONI, TQ: MUNDGOD.
DIST:UTTARA KANNADA. -508244.
5.
SHOBHA W/O PARASHURAM KALAL
AGE: 52 YEARS, OCC: HOUSEHOLD
R/O: KALAL ONI, TQ: MUNDGOD.
DIST:UTTARA KANNADA. -508244.
6.
HEMA W/O SHRINATH KALAL
AGE: 48 YEARS, OCC: HOUSEHOLD
R/O: BAMBU NAGAR, CORPORATION STOP,
KRISHNA MANDAL, DANDELI
DIST:UTTARA KANNADA. -508244.
7.
MALA W/O ARUN KALAL
AGE: 46 YEARS, OCC: HOUSEHOLD
R/O: NEAR PATRI BASAVESHWAR TEMLPE,
TQ: SHIGGAVI DIST: HAVERI-581205.
8.
MUKTA W/O ASHOK KALAL
AGE: 36 YEARS, OCC: HOUSEHOLD
R/O: NEKAR NAGAR, TQ: HUBLI.
DIST: DHARWAD.580024.
9.
SHANTA W/O PARASHURAM KALAL
AGE: 56 YEARS, OCC: COOLIE
R/O: AZAD NAGAR, ANAVATTI,
TQ: SORAB, DIST: SHIVAMOGGA.-577429.
10.
ANUSUYA W/O PARASHURAM KALAL
AGE: 36 YEARS, OCC: COOLIE
R/O: AZAD NAGAR, ANAVATTI,
TQ: SORAB, DIST: SHIVAMOGGA.-577429
11.
ANNAPPA S/O SHIVAPPA MATTIGATTI,
AGE: 51 YEARS, OCC: COOLIE
R/O: KALAL ONI, MUNDAGOD TOWN,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
12.
ANIL S/O BHARAMANNA NAIK,
AGE: 51 YEARS, OCC: COOLIE
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WP No. 100152 of 2023
R/O: KALAL ONI, MUNDAGOD TOWN,
TQ: MUNDAGOD, -508244
DIST: UTTARA KANNADA-508244.
13.
MEHABOOB S/O SAYYAD HUSAIN BANDI,
AGE: 66 YEARS, OCC: COOLIE
R/O: KALAL ONI, MUNDAGOD TOWN,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
14.
SMT SHAKUNTALA,]
W/O RAMACHANDRA KAMMAR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O: KALAL ONI, MUNDAGOD TOWN,
TQ: MUNDAGOD, -508244
DIST: UTTARA KANNADA.
15.
SHRI B.K.M VEMBATU KUTTI,
AGE: 66 YEARS, OCC: BUSINESS,
R/O: KALAL ONI, MUNDAGOD TOWN,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA-508244.
16.
SHRI NARSAPPA ERAPPA KALALAKOND,
AGE: 61 YEARS, OCC: COOLIE,
R/O: KALAL ONI, MUNDAGOD TOWN,
TQ: MUNDAGOD, -508244
DIST: UTTARA KANNADA.
17.
SMT. VEENA VINAYAKA BADAKAR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O: KALAL ONI, MUNDAGOD TOWN,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
18.
SHRI. SHIVAPPA GADIGEPPA AJJAMMANAVAR
REP BY HIS LRS.
19.
PRAKASH SHIVAPPA AJJAMMANAVAR,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: KATUR VILLAGE,
TQ: MUNDAGOD,
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WP No. 100152 of 2023
DIST: UTTARA KANNADA -508244.
20.
SURESH SHIVAPPA AJJAMMANAVAR,
AGE: 54 YEARS, OCC: BUSINESS,
R/O: KATUR VILLAGE,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
21.
SHOBHA SHIVAPPA AJJAMMANAVAR,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: KATUR VILLAGE,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
22
SMT. PARVATHI RAM NAIK,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O: KALAL ONO, MUNDGOD
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
23.
SHRI MARUTI KALLAPPA TALWAR,
AGE: 61 YEARS, OCC: COOLIE,
R/O: KALAL ONI, MUNDGOD TOWN,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
24.
SHRI ASHOK HALAPPA KATAGI,
AGE: 46 YEARS, OCC: RYOT,
R/O: ANDALAGI (CHOWDALLI) VILLAGE,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
25.
SHRI RUDRAPPA VEERABHADRAPPA BADIGER,
AGE: 81 YEARS, OCC: COOLIE,
R/O: KALAL ONI, MUNDGOD,
TQ: MUNDAGOD,
DIST: UTTARA KANNADA -508244.
26.
SHRI. ASHOK MURIGEPPA BEVINMARA
REP BY HIS LRS.
27.
SMT. LILA @ LILAVATHI W/O ASHOK BEVINMARA,
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WP No. 100152 of 2023
AGE: 81 YEARS, OCC: COOLIE,
R/O: C/O: ASHOK BEVINMARAGOLDEN VILA,
VIDYANAGAR WEST BADAVANE,
8TH CROS, HAVERI, DIST: HAVERI. -581110.
28.
IRESHI S/O ASHOK BEVINMARA,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: C/O: ASHOK BEVINMARAGOLDEN VILA,
VIDYANAGAR WEST BADAVANE,
8TH CROS, HAVERI, DIST: HAVERI. 581110.
29
MURAGESHI S/O ASHOK BEVINMARA,
AGE: 36 YEARS, OCC: BUSINESS,
R/O: C/O: ASHOK BEVINMARAGOLDEN VILA,
VIDYANAGAR WEST BADAVANE,
8TH CROS, HAVERI, DIST: HAVERI.
DIST: HAVERI -581110.
30
NAGESH SHESHAGIRI RAIKAR
REP BY HIS LRS.
31
SHRI. UMESH S/O NAGESH RAIKAR,
AGE: 72 YEARS, OCC: BUSINESS,
R/O: HUBLI ROAD, MUNDGOD.
DIST: UTTARA KANNADA. -508244.
32
SHRI. VINAYAKA S/O NAGESH RAIKAR,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: HUBLI ROAD, MUNDGOD.
DIST: UTTARA KANNADA. -508244.
33
SMT. RAMABAI S/O NAGESH RAIKAR,
AGE: 91 YEARS, OCC: HOUSEHOLD,
R/O: MUNDGOD HUBLI ROAD,
MUNDGOD TOWN, TQ: MUNDGOD .
DIST: UTTARA KANNADA. -508244.
34
SMT. KAMALAXI W/O VITTAL SHEJEKAR,
AGE: 71 YEARS, OCC: HOUSEHOLD,
R/O: NEHARU NAGAR, NEAR MASJIDA,
MUNDGOD TOWN, TQ: MUNDGOD .
DIST: UTTARA KANNADA. -508244.
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WP No. 100152 of 2023
35
SMT. REKHA W/O RAMACHANDRA REVANKAR,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O: HOUSE NO.3049,
“VIMALESHWAR NIVASA”
PRASHANT NAGAR, MAJJAN ROAD,
RATNAGIRI, MAHARASHTRA STATE.415612.
36
SMT. JAYASHREE W/O YASHVANTH SHET,
AGE: 67YEARS, OCC: HOUSEHOLD,
R/O: MANGALORE JEWLERY WORK,
CAR STREET, KUSHAL NAGAR.
DIST: KODAGU-571234.
37
SMT. SHALINI W/O MOHAN PALANKAR,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O:DATTATREYA NILAYA,
NO.305, 24TH A CROSS, 6TH BLOCK,
JAYANAGAR, BANGALORE-560041.
…RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R1;
NOTICE TO R2 TO R37 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A)
ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER PASSED
BY THE SENIOR CIVIL JUDGE AT YELLAPUR SITING AT
MUNDGOD ON I.A. NO. XLVI AND NO.XLVII IN O.S. NO. 1/2007
DATED 07/11/2022 VIDE ANNEXURE-E BY ALLOWING THE
APPLICATION FILED BY THE PETITIONER HEREIN. B) AND
ALSO GRANT SUCH ANY OTHER WRIT OR ORDER WHICH
DEEMS FIT TO THIS HON BLE COURT.
THIS PETITION COMING ON FOR ORDERS PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 100152 of 2023
A party who has been placed ex parte in a suit should be given an opportunity to contest the suit on merits, especially in a suit for partition and separate possession of immovable properties, where the relationship between the parties is important.
Headnote:
EX PARTE - SETTING ASIDE - ORDER IX RULE 7 CPC - ORDER XV RULE 1 CPC - HEALTH REASONS -
Fact of the Case:
The petitioner was placed ex parte in a suit for partition and separate possession of immovable properties. He filed applications under Order IX Rule 7 and Section 151 C.P.C. to set aside the ex-parte order and for permission to contest the proceedings, which were rejected by the trial court on the ground that it did not have jurisdiction to consider the applications as the matter was posted for judgment.
Finding of the Court:
The High Court allowed the petition, set aside the impugned order, and allowed the applications filed by the petitioner subject to certain terms and conditions. The court held that the trial court adopted a hyper-technical approach and failed to consider the petitioner's contention that he was unable to contest the suit earlier due to health reasons.
Issues: Whether the trial court erred in rejecting the petitioner's applications to set aside the ex-parte order and for permission to contest the proceedings.
Ratio Decidendi: The ratio of the judgments of the Hon'ble Apex Court referred to supra would not apply to the facts and circumstances of the instant case. The trial Court also failed to consider and appreciate the specific contention of the petitioner that it was not possible for him to contest the suit earlier on account of health reasons as evidenced by the documents produced by him along with the applications.
Final Decision: The petition was allowed, the impugned order was set aside, and the applications filed by the petitioner were allowed subject to certain terms and conditions.
This petition is directed against the impugned order dated
07.11.2022 passed on I.A.Nos.46 and 47 in O.S.No.1/2007 by
the Senior Civil Judge, Yellapur sitting at Mundgod whereby the
aforesaid applications filed by the petitioner-defendant under
Order IX Rule 7 and Section 151 C.P.C. to set aside the order
placing him ex-parte and for permission to contest the
proceedings were rejected by the trial Court.
Heard learned counsel for the petitioner and learned
counsel for respondent No.1 and perused the material on
record.
The material on record discloses that respondent
No.1/plaintiff instituted the aforesaid suit in O.S.No.1/2007 for
partition and separate possession of her alleged share in the
suit schedule immovable properties and for other reliefs. In the
said suit, the petitioner herein has arrayed as defendant No.1
while remaining respondents herein are arrayed as defendants
and they are contesting the suit. The petitioner herein was
placed ex parte while remaining defendants contested the suit
and the matter was posted for final arguments at which stage
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petitioner moved the instant applications for permission to
contest the suit. The said applications having been opposed by
the respondents, the trial Court proceeded to pass the
impugned order rejecting the applications on the ground that
since the matter was posted for judgment earlier, the trial
Court did not have jurisdiction to consider the said applications
and consequently, same were dismissed by the trial Court,
aggrieved by which the petitioner-defendant is before this
Court by way of present petition.
A perusal of the impugned order passed by the trial
Court will indicate that the trial Court has relied upon the
judgments of the Hon’ble Apex Court in the case of
Bhanukumar Jain V/s Archana Kumar (AIR 2005 SC 626)
and Arjun Singh V/s Mahendra Kumar and others (AIR
1964 SC 993) in order to come to the conclusion that the
applications were not maintainable. In this context, it is
relevant to state that the matter was posted before the trial
Court on 21.06.2022 for arguments and not for pronouncement
of judgment on which the petitioner filed the instant
applications. Under these circumstances, the ratio of the
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judgments of the Hon’ble Apex Court referred to supra would
not apply to the facts and circumstances of the instant case.
The trial Court also failed to consider and appreciate
the specific contention of the petitioner that it was not possible
for him to contest the suit earlier on account of health reasons
as evidenced by the documents produced by him along with the
applications. In this context, the trial Court adopted a hyper
technical approach without appreciating that having regard to
the nature of the suit, the relief sought for by the plaintiff and
properties involved as well as relationship between the parties
in a suit for partition and separate possession, it would be
necessary to give all parties an opportunity to contest the suit
on merits and to put forth their claims. Under these
circumstances, I am of the considered opinion that by adopting
justice oriented approach and in order to give one more
opportunity to the petitioner, it would be just and proper to set
aside the impugned order and allow the applications filed by
the petitioner subject to certain terms and conditions. In the
result, I pass the following:
ORDER
i.
The petition is allowed.
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ii.
The impugned order dated 07.11.2022 is set
aside and I.A.Nos.46 and 27 are allowed
subject to petitioner paying cost of Rs.10,000/-
to respondent No.1-plaintiff before the trial
Court on the next date of hearing.
iii.
The petitioner undertakes to trial Court before
whom the matter is posted on 10.01.2023 is
directed to adjourn the matter on 17.01.2023
on which the petitioner shall file his written
statement without fail and without seeking any
further adjournment in this regard.
iv.
Immediately upon the petitioner filing his
written statement, the trial Court shall proceed
to frame ad
