Though matters are listed for admission, with

consent of both learned counsel, they are taken up

for final disposal as short point for consideration is

involved.

2.

Both these appeals are filed by defendant

no.2 in two suits namely, OS no.40/2017 and OS

no.60/2017. OS no.40/2017 was filed by Smt.

Mangala D/o Irappa claiming her share in joint

family property of Irappa. While OS no.60/2017

was filed by Shivappa S/o Parappa Wali - brother

of Irappa (propositus in OS no.40/2017) claiming

for his share in joint family properties of their

father Parappa Irappa Wali.

3.

Summons was served on appellant –

defendant no.2 in both suits. He filed written

statement in OS no.40/2017 in which there was

incidental pleading that even Shivappa, plaintiff’s

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uncle also had a share in joint family properties.

Staking

claim

on

said

basis

among

others,

Shivappa filed OS no.60/2017. But in said suit,

Rudrappa - defendant no.2 did not file written

statement. Since both suits were in relation to

same suit schedule properties, they were clubbed

together and evidence was recorded.

4.

At that stage, defendant no.2-Rudrappa

filed

application

for

amendment

of

written

statement

in

OS

no.40/2017,

for

deleting

admission of share in favour of Shivappa. Said

application

was

dismissed.

Order

rejecting

application was questioned before this Court in WP

no.103811/2022,

which

was

dismissed

of

on

26.09.2022. While dismissing writ petition, this

Court directed trial Court to hear arguments of

both parties and thereafter, to pass judgment in

accordance with law. It is submitted that despite

direction by this Court, trial Court proceeded to

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dispose of suit on 01.10.2022 without giving

opportunity of hearing to defendant no.2-appellant

herein.

5.

Sri. Girish Yadwad, learned counsel for

appellant submitted that failure to comply with

directions issued would amount to substantial error

calling for exercise of jurisdiction under Section

107 of Civil Procedure Code and on said ground,

sought for setting aside of impugned judgment and

decree

and

for

remand

of

matter

to

avail

opportunity.

6.

On

other

hand,

Sanjay

S.

Katageri,

leaned counsel for plaintiff in OS no.40/2017 and

Sri. Shivaraj P.Mudhol, learned counsel for plaintiff

in OS no.60/2017 sought to support impugned

judgment and decree. It was submitted that since

plaintiff Smt. Mangala was a daughter, just to

dilate

proceedings,

defendant

had

filed

these

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appeals

and

remand

of

matter

would

only

aggravate cause of plaintiff and therefore, even if

appeals are allowed, they sought for fixing up of

date of appearance and for outer time limit for

disposal

of

suit.

It was

further specifically

submitted that defendant no.2 - appellant herein

having remained absent continuously before trial

Court and no useful purpose would be served

except dilation of proceeding.

7.

Heard

learned

counsel

for

parties,

perused

impugned

judgment

and

decree

and

record.

8.

From above submission, point that would

arises for consideration is:

“Whether trial Court was justified in

disposing

of

suit

without

granting

opportunity of hearing to appellant in

terms of Order passed by this Court in

WP no.103811/2022?”

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9.

Answer

is

in

negative

for

following

reasons:-

On perusal of certified copy of order sheet of

trial Court, which was made available by learned

counsel for appellant for perusal of this Court, it is

seen that IA no.5 filed for amendment of written

statement was rejected on 17.09.2022. On same

day, it was recorded as follows:

‘Heard arguments on merits in full. Call for

judgment on 01.10.2022.”

10. Thereafter, said order was challenged by

defendant

in

WP

no.103811/2022

before

this

Court, which as stated above was disposed on

26.09.2022. Even while dismissing writ petition,

trial Court was directed to hear arguments of

parties and thereafter, proceed to pass judgment

in accordance with law. From certified copy of

order sheet, it is seen that before 01.10.2022

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defendant no.2 filed IA no.6 under Section