IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 26^TH DAY OF MARCH 2021

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

CRP.NO.1137/2011

BETWEEN

1 .

BIBIJAN W/O. UMARSA MUSHAPURI

AGE: MAJOR, OCC: HOUSEHOLD WORK,

R/O. UDAKERI, TQ: BAILHONGAL, DIST: BELGUAM.

2 .

SMT.SAHEBI MEERSAB KITTUR

AGE: MAJOR, OCC: HOUSEHOLD WORK,

R/O. HOSATEGUR, TQ: DHARWAD, DIST: DHARWAD.

... PETITIONERS

(BY SRI.J.S.SHETTY, ADV.)

AND

1 .

MAHABUBI MUKTUMSAB BUDDANNAVAR

DECEASED BY HER LR.

1A.

SMT.GORIMA GUNDANNAVAR

AGE: 45 YEARS, R/O NEAR GURUDUNDESHWAR ONI,

NEAR GOVERNMENT KANNADA PRIMARY SCHOOL,

TEGURU VILLAGE & POST, TQ. & DIST: DHARWAD.

2 .

SRI.MAHARUDRAPPA BASAVANNEPPA MURGOD

AGE: MAJOR, OCC: AGRICULTURE,

R/O. TAGUR, TQ and DIST: DHARWAD.

... RESPONDENTS

(R2 NOTICE IS HELD SUFFICIENT,

R1 DECEASED & R1A IS SERVED AND UNREPRESENTED)

THIS CRP IS FILED UNDE SECTION 115 OF CPC PRAYS THAT

THE ORDER PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND CJM,

DHARWAD IN M.A.NO.22/2003 DATED 20.04.2011 BY CONFIRMING

THE ORDER DATED 28.08.2003 PASSED BY THE COURT OF THE II

ADDL.

CIVIL

JUDGE

(JR.DN.)

DHARWAD

IN

MISC.PETITION

NO.16/2002 IN O.S.NO.*514/1997 MAY KINDLY BE SET ASIDE BY

ALLOWING THIS CIVIL REVISION PETITION.

* corrected v/o/dated 19.07.2021.

Sd/-

(SSMJ)

2

THIS CRP COMING ON FOR FINAL HEARING THIS DAY, THE

COURT MADE THE FOLLOWING:

ORDER

Mother

of

respondent

No.1A

filed

a

suit

for

declaration and for consequential relief of injunction. The

subject matter of the suit were open site and agricultural

land in Block No.125 measuring 23 acres 7 guntas. Out of

which, 11 acres 24 guntas is the suit property. The original

plaintiff and the present petitioners are full sisters. Original

plaintiff-Mahabubi is claiming absolute right over the estate

left behind by her father Rajesab. It is her specific case

that he has executed a Will dated 14.09.1981 in her

favour. Under the said Will, it is specific case of the original

plaintiff that testator has bequeathed all the properties

owned by him. The present petitioners who are the sisters

of the deceased plaintiff Mahabubi failed to contest the

proceedings. The trial court decreed the suit.

2.

The present petitioners’ specific case is that

they were not at all aware of the filing of the suit by their

3

sister Mahabubi. The present petitioners filed an application

under Order 9 Rule 13 of CPC for setting aside the ex-parte

decree. The present petitioners to substantiate their claim

and to make out a sufficient cause have examined

petitioner No.1 as P.W.1 and produced documents vide

Exs.P1 to P7. The original plaintiff Mahabubi also let in

ocular evidence as R.W.1 and relied on rebuttal evidence

as per Exs.R1 to R3a. The learned Judge having examined

rival contentions was of the view that no valid grounds are

made out to condone the delay in filing the miscellaneous

petition. The learned Judge further held that though

sufficient opportunity was afforded to the petitioners and

inspite of summons was served on them personally, they

have not engaged lawyer and contested the proceedings.

The learned Judge solely relying on the statement of the

plaintiff who is examined as R.W.1 wherein plaintiff has

made a statement that summons were served on the

petitioners through process of court has proceeded to hold

that no grounds are made out. Learned Judge was also of

4

the view that there is nothing on record to disbelieve the

endorsement made by the bailiff. More emphasis was laid

by the learned Judge on the fact that suit was filed in the

year 1997 and the same stood decreed in the year 2001.

Thereby the learned Judge was of the view that suit went

on for considerable length of time and inspite of petitioners

having knowledge of pendency of the suit have not tak