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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 51906 OF 2014(GM-CPC)
BETWEEN:
1. SMT JANAKAMMA
W/O LATE KODANDA SWAMY,
AGED ABOUT 76 YEARS,
OCC:HOUSEHOLD,
R/O CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
2. SRI SHESHADRI
S/O LATE KODANDA SWAMY,
AGED ABOUT 59 YEARS,
OCC:AGRICULTURIST,
R/O CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
3. SMT GEETHA LAKSHMI
W/O SADANANDA,
AGED ABOUT 57 YEARS,
OCC:HOUSEHOLD,
R/O JOLADHAL VILLAGE,
CHANNAGIRI TALUK, DAVANAGERE DISTRICT.
4. SRI RAMESH
S/O LATE KODANDA SWAMY,
AGED ABOUT 55 YEARS,
R/O CHANNAGIRI TOWN, DAVANAGERE DISTRICT.
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5. SRI KUMARASWAMY
S/O LATE KODANDA SWAMY,
AGED ABOUT 53 YEARS,
R/O CHANNAGIRI TOWN, DAVANAGERE DISTRICT.
6. SRI S K PRAKASH
S/O LATE KODANDA SWAMY,
AGED ABOUT 51 YEARS,
R/O CHANNAGIRI TOWN, DAVANAGERE DISTRICT.
7. SMT PREMA
W/O MANOHAR TELANG,
AGED ABOUT 49 YEARS,
OCC:HOUSEHOLD,
NOW R/AT NO.563, SAFARGALLI,
OPP:DATTA TEMPLE,
VADAGOV BELGAUM.
8. SMT SUJATHA
W/O ASHOKA NAM PALLI,
AGED ABOUT 47 YEARS,
OCC:HOUSEHOLD,
R/O KURANDAVADA VILLAGE,
SHIROL TALUK, KOLLAPURA DISTRICT,
MAHARASHTRA STATE.
9. SMT DEVIKA
W/O KISHOR NAIDU,
AGED ABOUT 45 YEARS,
OCC:HOSUEHOLD,
R/O TAHSILDAR COMPOUND,
CANTONMENT, OPP:NCC OFFICE,
BELLARY.
10. SUMANGALA
W/O KUMAR NAIDU,
AGED ABOUT 35 YEARS,
R/O HOTEL ANNAPURNA,
NEAR BUS STAND, MAHABALESHWARA,
3
SATARA DISTRICT,
MAHARASTRA STATE.
11. SMT VANI
W/O SANJAYA NAMPALLI,
AGED ABOUT 41 YEARS,
R/O KURANDWADA VILLAGE,
SHIROAL TALUK, KOLLAPUR DISTRICT,
MAHARASHTRA STATE.
12. SMT ANJANA
D/O LATE KODANDA SWAMY,
AGED ABOUT 39 YEARS,
OCC:HOUSEHOLD,
R/O CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
...PETITIONERS
(BY SRI.M.R.RAJAGOPAL, SR.COUNSEL FOR
SRI.H.N.BASAVARAJU, ADVOCATE)
AND:
1. SMT PUSHPAMMA
W/O LATE VENKATASWAMY,
AGED ABOUT 72 YEARS,
VENKATADRI NILAYA, MEDAR BEEDI,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
2. SMT PREMA
W/O HANUMANTHAPPA,
AGED ABOUT 52 YEARS,
C/O VIJAYALAKSHMI AUTOMOBILES,
HIRIYUR TOWN, CHITRADURGA DISTRICT.
3. SMT LATHA
W/O VENKATESH,
AGED ABOUT 49 YEARS,
4
C/O VIJAYALAKSHMI AUTOMOBILES,
HIRIYUR TOWN, CHITRADURGA DISTRICT.
4. SMT PADMAVATHI
W/O VENKATASWAMY,
AGED ABOUT 45 YEARS,
VENKATADRI NILAYA, MEDAR BEEDI,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
5. SRI PRAKASH
S/O VENKATASWAMY,
AGED ABOUT 40 YEARS,
VENKATADRI NILAYA, MEDAR BEEDI,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
6. SRI KUMAR
S/O VENKATASWAMY,
AGED ABOUT 38 YEARS,
VENKATADRI NILAYA, MEDAR BEEDI,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
7. SRI YOGESH
S/O VENKATASWAMY,
AGED ABOUT 37 YEARS,
VENKATADRI NILAYA, MEDAR BEEDI,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
8. SRI RAMESH
S/O VENKATASWAMY,
AGED ABOUT 35 YEARS,
VENKATADRI NILAYA, MEDAR BEEDI,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
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9. SMT VIJAYALAKSHMI
W/O VENKATASWAMY,
AGED ABOUT 33 YEARS,
VENKATADRI NILAYA, MEDAR BEEDI,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
10. SRI C S KRISHNA SWAMY
S/O ANNAPPA,
AGED ABOUT 93 YEARS,
3RD CROSS, VENKATESHWARA NAGARA,
JAIL ROAD, SHIMOGA.
11. SRI S P GOVINDA SWAMY
S/O PAPAIAH,
AGED ABOUT 78 YEARS,
OCC:AGRICULTURIST, MAIN ROAD,
CHANNAGIRI TOWN,
DAVANAGERE DISTRICT.
12. SMT PADMAVATHI
W/O LATE S.P.SEETHARAMAIAH,
AGED ABOUT 70 YEARS,
OCC:HOUSE HOLD,
R/O RANGADHAMA NILAYA,
POLICE QUARTERS, VINOBA NAGARA,
SHIMOGA.
13. SRI MADHUSUDHAN
S/O LATE S.P.SEETHARMAIAH,
AGED ABOUT 50 YEARS,
OCC:LECTURER,
BDT COLLEGE OF ENGINEERING,
R/O #860, 16TH MIAN,
NEAR ST.JOHNS CONVENT BUILDING,
SHIVAKUMARASWAMY LAYOUT,
DAVANAGERE.
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14. SRI S P VENKATASWAMY
S/O PAPAIAH,
AGED ABOUT 73 YEARS,
R/O MAIN ROAD,
CHANNAGIRI TOWN, DAVANAGERE DISTRICT.
15. DR S P KESHAVAMURTHY
S/O PAPAIAH,
AGED ABOUT 73 YEARS,
R/O NO.397, "SOUPARNIKA NILAYA",
KALYANA NAGAR, NAGARABHAVI,
BANGALORE.
16. SRI P K VASUDEV
S/O KRISHNA MURTHY,
AGED ABOUT 53 YEARS,
OCC:AGRICULTURIST,
R/O NEELAKANTESHWARA NILAYA,
NEAR AKKAMAHADEVI KANNADA CONVENT.
SUBHASH NAGARA, BHADRAVATHI.
17. SRI P K SATHYANARAYANA
S/O KRISHNA SWAMY,
AGED ABOUT 50 YEARS,
OCC:TOURIST CAR OWNER,
R/O MEDARA KERI,
CHANNAGIRI TOWN DAVANAGERE DISTRICT.
18. SMT SUSHEELAMMA
W/O NARAYANASWAMY,
AGED ABOUT 59 YEARS,
OCC:HOUSEHOLD,
R/O HANCHINA SIDDAPURA VILLAGE,
BHADRAVATHI TALUK.
19. SRI RAGHU
S/O NARAYANA SWAMY,
AGED ABOUT 39 YEARS,
OCC:AGRICULTURIST,
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R/O HANCHINA SIDDAPURA VILLAGE,
BHADRAVATHI TALUK.
20. SRI KUMAR
S/O NARAYANA SWAMY,
AGED ABOUT 37 YEARS,
OCC:AGRICULTURIST,
R/O HANCHINA SIDDAPURA VILLAGE,
BHADRAVATHI TALUK.
21. SRI C S VENOGOPALA
S/O RAMAIAH,
AGED ABOUT 55 YEARS,
C/O DRIVER RAJU,
VIJAYAKIRAN CONSTRUCTIONS PVT.LTD.,
NO.314/6, DOMLUR LAYOUT,
BANGALORE-560071.
22. SRI C S CHAKRAPANI
S/O RAMAIAH, AGED ABOUT 59 YEARS,
OCC:ARRACK VENDRO,
JOG FALLS, SAGAR TALUK,
SHIMOGA DISTRICT.
23. SRI S V MAHABALESHA GUNDU
S/O VASUDEVA,
AGED ABOUT 48 YEARS,
OCC:FOREST GUARD,
JOLADALU VILLAGE, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
24. SRI S V VIJAY
S/O VASUDEVA,
AGED ABOUT 42 YEARS,
OCC:BUS AGENT, JOLADALU VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
…RESPONDENTS
(V/O DTD: 14.11.2014 NOTICE TO R11-R24 ARE D/W;
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V/O DTD: 24.10.2017 NOTICE TO R2, R5 & R10 ARE D/W;
R1-9 ARE SERVED & UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.30.7.2014 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND JMFC, CHANNAGIRI, IN M.A.NO.9/2010 ANNEX-P AND THE
ORDER DTD.27.5.2009 PASSED BY THE LEARNED PRL. CIVIL
JUDGE (JR.DN) CHANNAGIRI IN MISC.NO.2/2003, VIDE ANNEX-M
AND ETC.,
THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
The captioned writ petition is filed by the legal
representatives of defendant No.1, who was placed exparte in
O.S.No.352/1995, feeling aggrieved by the order dated
27.05.2009 passed in Misc. Petition No.2/2003 on an
application filed under Order 9 Rule 13 of CPC and confirmed
by the Appellate Court in M.A.No.9/2010 vide order dated
30.07.2014.
2.
The respondent Nos.1 and 2 instituted a suit for
partition and separate possession against the husband of
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petitioner No.1 namely Kodanda Swamy who was arrayed as
defendant No.1. On receipt of summons, the defendant No.1
though appeared and filed Vakalath, however, did not contest
the suit by filing written statement. The Court below has
proceeded to decree the suit by judgment and decree dated
02.08.2002. Thereafter, it appears that defendant No.1 filed
civil miscellaneous petition in C.Misc.Petition No.2/2003 under
Order 9 Rule 13 of CPC seeking restoration of suit in
O.S.No.352/1995. The present petitioners let in ocular
evidence by examining PWs.1 and 2 and tried to make out a
case to indicate that defendant No.1 on account of sufficient
cause was not in a position to contest the proceedings.
3.
The learned Judge having examined the material on
record, however, did not accept the explanation offered by the
present petitioners herein and therefore, declined to restore
the suit on file. The said order is confirmed by the Appellate
Court. The Appellate Court having examined the order under
challenge passed by the Trial Court was of the view that the
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learned Judge has dealt with the matter in detail and the
material on record does not indicate and make out a case in
favour of petitioners who have sought for restoration of the
suit by invoking the provisions of Order 9 Rule 13 of CPC.
4.
Feeling aggrieved by the concurrent orders, the
petitioners are before this Court.
5.
Learned
Senior
Counsel
appearing
for
the
petitioners reiterating the grounds urged in the writ petition
would contend before this Court that the present petitioners
are not questioning the decree insofar as suit schedule
property bearing Sy.No.8 is concerned. The grievance of the
petitioners is that suit Sy.Nos.8 and 12 are different and
distinct properties. However, petitioners claim that they are
being affected on account of decree being passed not only in
respect of Sy.No.8 but also Sy.No.12.
6.
Learned Senior Counsel would take this Court to
Annexure-D which is a village map. Referring to the village
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map, he would point out that the map clearly indicates
existence of Sy.No.8 as well as Sy.No.12. Therefore, he would
contend that the respondents/plaintiffs were not justified in
mentioning Sy.No.12 as a new number. Therefore, he would
contend that the petitioners are only aggrieved by the
operative portion of the decree wherein respondents/plaintiffs
are granted share not only in Sy.No.8 but also in Sy.No.12.
Though plaintiffs claim that Sy.Nos.8 and 12 are one and the
same property, to refute the said contention, learned Senior
Counsel along with memo has produced the record of rights.
7.
Pursuant to the direction issued by this Court, the
petitioners have also placed on record the medical evidence
indicating that defendant No.1 suffered a paralytic attack to
the right lower limb and upper limb. Placing reliance on this
medical evidence, learned Senior Counsel would contend that
even otherwise, the exparte decree is liable to be set aside as
defendant No.1 was bedridden and therefore, he was not in a
position to contest the proceedings.
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8.
Heard learned Senior Counsel appearing for the
petitioners. The respondents/plaintiffs are served and
unrepresented. Perused both the orders under challenge. I
have also given my anxious consideration to the records
produced before this Court vide memo dated 30.08.2021. I
have also perused the record of rights.
9.
The order under challenge needs interference on
two counts. Firstly, though the plaint schedule refers to
property bearing Sy.No.8 with co
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