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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 7^TH DAY OF JANUARY, 2021

PRESENT

THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

AND

THE HON’BLE MR. JUSTICE P.N.DESAI

REGULAR FIRST APPEAL NO.100279/2019

BETWEEN:

SMT.MAHADEVI

W/O. VEERUPRAXAPPA KAJAGAR

AGE: 70 YEARS, OCC: HOUSEWIFE,

R/O. H.NO.59, 6^{T H} CROSS,

ADARSH NAGAR,

HINDWADI, BELAGAVI-590011.

….APPELLANT.

(BY SHRI VITTHAL S. TELI, ADVOCATE.)

AND:

1.

SAVITA W/O. VEERANNA KAJAGAR

AGE: 51 YEARS, OCC: DOCTOR,

R/O. C/O. DR. SAMBASHIVAYYA

ABHILASH 821

H.NO.821, 6^{T H} CROSS, M.C.LAYOUT,

VIJAY NAGAR, BENGALURU-560040.

2.

KUMARI SHRUSTI

D/O. VEERANNA KAJAGAR

AGE: 18 YEARS, OCC: STUDENT,

R/O. C/O. DR. SAMBASHIVAYYA

2

ABHILASH 821

H.NO.821, 6^{T H} CROSS, M.C.LAYOUT,

VIJAY NAGAR, BENGALURU-560040.

….RESPONDENTS.

(BY SHRI A.A.MULAWADMATH, ADVOCATE (ABSENT).

THIS REGULAR FIRST APPEAL IS FILED UNDER

SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC,

PRAYING TO SET ASIDE THE JUDGMENT AND DECREE

DATED 22.2.2019, PASSED IN O.S.NO.382/2014, BY THE

PRL.

SENIOR

CIVIL

JUDGE

AND

CHIEF

JUDICIAL

MAGISTRATE, BELAGAVI, AND TO DECREE THE SUIT,

ETC.,.

THIS APPEAL COMING ON FOR ADMISSION THIS

DAY, SRI SREENIVAS HARISH KUMAR, J, DELIVERED THE

FOLLOWING:

JUDGMENT

This appeal is disposed of at the stage of

admission. Counsel for respondent is absent.

2.

Having heard the counsel for appellant on

I.A.No.1/2019 filed under section 5 of the Limitation

Act and finding sufficient cause for delay of four

days, application is allowed. Delay is condoned.

3.

Plaintiff is the appellant and defendants

No.1 and 2 are the respondents.

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4.

The

appellant

instituted

a

suit

for

partition, O.S.No.382/2014 in the Court of Prl.

Senior Civil Judge, Belagavi. It is not necessary to

cull out the pleadings because of a wrong procedure

adopted by the learned trial Judge for dismissing the

suit.

5.

The order sheet of the trial Court shows

that on 22.1.2018 the plaintiff filed her affidavit in

lieu of examination-in-chief. From that day, the case

was adjourned to 28.2.2018 for further examination-

in-chief and cross-examination of PW.1. On that day

PW.1 produced certain documents and the case was

adjourned to 26.3.2018. PW.1 was further examined-

in-chief on 26.3.2018 and got marked 20 documents

as Exs.P.1 to P.20. The counsel for the defendant

was absent. The case was adjourned to 17.4.2018

for further examination-in-chief of PW.1. On that day

the case was again adjourned to 11.6.2018. Again an

application under Order 7 Rule 14 read with section

151 of CPC was made on behalf of plaintiff for

production of some more documents. The case was

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posted to 2.7.2018 for further examination-in-chief

and cross-examination of PW.1. On 2.7.2018 the

application was allowed and documents were taken

on record. The case was adjourned to 24.7.2018 for

further

examination-in-chief

of

PW.1.

On

the

adjourned date i.e., on 24.7.2018 PW.1 was further

examined-in-chief

and

got

marked

one

more

document as per Ex.P.21. Counsel for defendant was

absent

and

therefore

case

was

adjourned

to

13.8.2018 for cross-examination of PW.1. Then on

13.8.2018 PW.1 was present before the Court. Since

a submission was made before the Court by the

advocates for the plaintiff and the defendant for

referring the matter to mediation, the request was

considered and the matter was referred to Mediation

Center, Belagavi. On 22.10.2018 case was again

called in the Court since the mediation failed. Case

was

then

posted

to

17.12.2018

for

cross-

examination of PW.1. On 17.12.2018, PW.1 was

present but the advocate for defendant was absent

and therefore case was adjourned to 14.1.2019 for

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cross-examination of PW.1. On 14.1.2019 also PW.1

was present, case was called three times on that day

since there was no representatio