Karnataka High Court
Smt. Shantabai @ Anjubai W/O Babasaheb vs Jayasingarao @ Balasaheb S/O on 14 August, 2020
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
CIVIL REVISION PETITION NO.100020/2018
BETWEEN
SMT. SHANTABAI @ ANJUBAI W/O BABASAHEB
NIMBALAKAR
AGE:81 YEARS, OCC:HOUSEHOLD WORK
& AGRICULTURE
R/O:JAYA NAGAR, MUDHOL,
TQ:MUDHOL, DIST:BAGALKOT 587313
... PETITIONER
(BY SRI.GIRISH A YADAWAD, ADVOCATE)
AND
JAYASINGARAO @ BALASAHEB S/O
GOVINDARAO NIGADE
SINCE DECEASED BY LRS
1. SMT. SUHASINI W/O JAYASINGARAO
NIGADE
AGE:49 YEARS, OCC:SERVICE,
R/O:PLOT NO.13, SUJAY, GURUKRUPA
HOUSING SOCIETY, SHAHUNAGAR, GODOLI,
SATARA, TQ:SATARA, DIST:SATARA,
MAHARASHTRA 415001
2. SMT JYOTI W/O ROHIT NIKAM
AGE:31 YEARS, OCC:HOUSEHOLD WORK,
R/O:PLOT NO.102, DREAM CITY,
WING A-2, AMBEGAON BRANCH
BEHIND TELCO, PUNE,
MAHARASHTRA 411046
2
3. PRASAD S/O JAYASINGARAO NIGADE
AGE:27 YEARS, OCC:STUDENT,
R/O:PLOT NO.13, SUJAY, GURUKRUPA
HOUSING SOCIETY, SHAHUNAGAR, GODILI,
SATARA, TQ:SATARA, DIST:SATARA,
MAHARASHTRA 415001
4. SMT.SWATI W/O PRADIP SAWANT
AGE:33 YEARS, OCC:HOUSEHOLD WORK,
R/O:MAHENDRA SHIVCHARAN
MOTGHARE, BEHIND NIRMAL TALKIES,
SHASTRI WARD, GONDIA,
MAHARASHTRA 441601
... RESPONDENTS
(BY SRI.SANGRAM S KULKARNI, ADVOCATE FOR R1-R4)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE ORDER DATED:21.09.2017 PASSED IN MISC NO.45/2014
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
JMFC, MUDHOL ALLOWING THE PETITION FILED UNDER
ORDER 9 RULE 13 R/W SEC. 151 OF CPC.
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The learned counsel for the petitioner, who appears on video, and the learned counsel for the respondents are heard. The impugned order dated 21.09.2017 in Misc.No.45/2014 on the file of the 3 Principal Senior Civil Judge and JMFC, Mudhol, (for short, 'the Civil Court') is perused. The Civil Court by the impugned order has allowed the respondents' application under Order IX Rule 13 of Code of Civil Procedure (for short, 'CPC') for setting aside the exparte judgment and decree dated 29.07.2013 in O.S.No.86/2012 and restoration of the suit for re- adjudication.
2. The petitioner has filed the suit in O.S.No.86/2012 against Sri.Jayasinghrao Nigade for declaration of ownership with consequential relief for declaration of title based on a Will dated 05.03.2010. The suit summons issued to Sri.Jayasinghrao Nigade is returned unserved and thereafter the petitioner is permitted to take out notice to Sri.Jayasinghrao Nigade through paper publication. This paper publication is taken out in 'Pudhari' a Marathi Daily, but Sri.Jayasinghrao Nigade remained unrepresented. 4 Subsequently, the suit is decreed by judgment dated 29.07.2013.
3. Sri.Jayasinghrao Nigade breathed his last on 02.12.2013. Thereafter, the respondents, who are his wife and children, filed miscellaneous proceedings under Order IX Rule 13 in Misc.No.45/2014 contending that Sri.Jayasinghrao Nigade was also hospitalized between 28.10.2012 to 12.11.2012 and even later. He was suffering from health complications because of hemorrhage. As such, he was not served with the suit summons at his residence. Though the petitioner, the plaintiff, was aware that Marathi daily 'Pudhari' published from Kolhapur is limited in its circulation to Kolhapur and it has no circulation beyond the city and definitely not in Satara where Sri.Jayasinghrao Nigade was residing and later hospitalized, got the notice published in such edition. The respondents relied on these circumstances to demonstrate that 5 Sri.Jayasinghrao Nigade was prevented from sufficient cause in participating the proceedings. The Civil Court, has allowed the application under Order IX of CPC and restored the suit for re-trial accepting the cause shown taking into consideration these circumstances.
4. The learned counsel for the petitioner submits that the Civil Court has accepted the respondents' version about Sri.Jayasinghrao Nigade being hospitalized in the later part of 2012 and suffering from serious health complications based on the medical records produced by the respondents without examining the author of the medical reports. Upon restoration of the suit in O.S.No.86/2012 by the impugned order, the suit is disposed of on merits during the pendency of the civil revision petition. But, because the impugned order is without proper evidence, the impugned order will have to be set aside and the earlier ex-parte judgment and decree dated 29.07.2013 should be restored. 6
5. The learned counsel for the respondents emphasizes that the suit in O.S.No.86/2012 is decided on merits during the pendency of this civil revision petition with the petitioner having led evidence and participated in the trial. The learned counsel submits that the revision petition will have to be dismissed on this sole ground. The learned counsel further submits that even otherwise, the impugned judgment does not suffer from any infirmity because there is nothing on record to doubt the veracity or the genuineness of the medical records relied upon by the petitioners.
6. It is undisputed that in support of the application under Order IX Rule 13 of CPC, the first respondent, wife of Sri.Jayasinghrao Nigade has been examined and independent witnesses have also been examined. These witnesses have spoken in detail about Sri.Jayasinghrao Nigade's ailment, the surgery that he had to undergo in the month of June-2012 and 7 subsequent hospitalization again in the months of October and November-2012. The medical certificates relied upon by the respondents corroborate their evidence. The respondents in placing these circumstances have discharged the burden of establishing their case that Sri.Jayasinghrao Nigade could not have been served with the suit summons, nor the knowledge of suit could be imputed to him. In the circumstances of the case, and especially when the petitioner has not placed any material to doubt the veracity and genuineness of the medical records, no exception can be taken with the Civil Court relying upon the oral testimony and the medical records.
7. Further, the service of summons is held sufficient and Sri.Jayasinghrao Nigade is placed exparte upon publication of notice of suit by way of substituted service in Marathi Daily 'Pudhari' published in Belagavi Edition. Even according to the petitioner, 8 Sri.Jayasinghrao Nigade was a resident of Satara, and until it is shown that the Belagavi Edition also had circulation in Satara, service of notice to Sri.Jayasinghrao Nigade because of such publication would not be sufficient service. The petitioner, who has relied upon publication of notice in the Belagavi Edition of 'Pudhari' has not placed any circumstance from which it could be reasonably deduced or inferred that this Belagavi Edition of 'Pudhari' also has wide circulation in Satara. It would be pertinent to observe that the learned counsel for the respondents submits that the Satara is at a distance of almost 300 kilometres from Belagavi. Furthermore, the suit is presently disposed of on merits with the petitioner having participated in the trial.
In the light of these circumstances, this Court is of the considered view that the impugned order does not suffer from any jurisdictional error or any irregularity 9 justifying interference. Therefore, the civil revision petition is dismissed.
Sd/-
JUDGE sh