Karnataka High Court
Khalil S/O Syed Jalaluddin Peerzade vs Sayed Nasriuddin on 25 January, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 111921 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.111921 OF 2017 (GM-CPC)
BETWEEN:
1. KHALIL S/O. SYED JALALUDDIN PEERZADE,
AGE: 57 YEARS, OCC: EMPLOYEE IN DEFENCE,
R/O: B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
2. ANWAR S/O. SYED JALALUDDIN PEERZADE,
AGE: 67 YEARS, OCC: EMPLOYEE IN DEFENCE,
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
3. SATTAR S/O. SYED JALALUDDIN PEERZADE,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
ASHPAK
KASHIMSA
MALAGALADINNI
4. NAJUMUNNISA W/O. ABDULRAZAK SHAKH,
Digitally signed by
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
ASHPAK KASHIMSA
MALAGALADINNI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.01.29 11:44:10
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
+0530
PUNE CITY, MAHARASHTRA.
5. NOORJAHA W/O. ABDULRAZAK SHAKH,
AGE: 67 YEARS, OCC HOUSEHOLD WORK,
R/O: MUMBAI, NOW R/AT @ TREE TOP B BLOCK,
SHOLAPUR BAZAR, PUNE CITY, MAHARASHTRA.
6. RAZIYA W/O. NABILAL KHALIFA,
AGE: 63 YEARS, OCC: EMPLOYEE IN DEFENCE,
R/O: TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
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7. ASHRAFUNNISA W/O. ALLABHAKSH HUSEN MULLA,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: BARAMATI, DIST: PUNE,
NOW @ TREE TOP B BLOCK, SHOLAPUR BAZAR,
PUNE CITY, MAHARASHTRA.
...PETITIONERS
(BY SRI. NANDISH PATIL, ADVOCATE)
AND:
1. SAYED NASRIUDDIN,
S/O. SYED NAJEERUDDIN PEERAZADE,
R/BY. HIS GPA, SMT. HASEENA BEGAM,
W/O. SYED NASIRUDDIN PEERZADE,
AGE: 40 YEARS, OCC: HOUSEWIFE,
R/O: THOUHEED MANZIL, SYCALGAR STREET,
RANEBENNUR, DIST: HAVERI,
DECEASED BY HIS LRS.
1A. SMT. HASEENA BANU
W/O. SYED NAJEER PEERZADE,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O: CYCLGAR ONI, RANEBENNUR TOWN, DIST: HAVERI.
1B. SMT. SHABANA BANU W/O. ABDUL RAHEMAN AIRANI,
AGE: 29 YEARS, OCC: HUOSEHOLD,
R/O: KOTI, RABBANI GALLI,
RANEBENNUR TOWN, DIST: HAVERI.
1C. SMT. FARZANA BANU W/O. MUBARAK SHAIK,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O: KOTI, MARUTI MANDIR,
HOUSING BOARD, MADGON, STATE GOA.
1D. SAYYED SOLAUDDIN
S/O. SAYYED NASIR PEERZADE,
AGE: 20 YEARS, OCC: STUDENT,
R/O: CYCLGAR ONI,
RANEBENNUR TOWN, DIST: HAVERI.
1E. KUMARI UMMIE AYEMAN
D/O SAYYED NASIR PEERZADE,
AGE: 18 YEARS, OCC: STUDENT,
R/O: CYCLGAR ONI,
RANEBENNUR TOWN, DIST: HAVERI.
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1F. SAYYED NOORUDDIN
S/O. SAYYED NASIR PEERZADE,
AGE: 16 YEARS, OCC: STUDENT,
R/O: CYCLGAR ONI,
RANEBENNUR TOWN, DIST: HAVERI.
BEING MINORS 1(F) ARE
R/BY. THEIR NEXT FRIEND
NATURAL GUARDIAN MOTHER 1(A)
2. SAYED RAFIQ S/O. SAYED NAJEERUDDIN PEERZADE,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
3. SAYEEDA W/O. MOHAMED WARIS KHAJI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
4. AMEENABI W/O. SAYED SAJEERUDDIN PEERZADE,
AGE: 71 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
5. SAYED MUNEERUDDIN S/O. SAYED RAFIUDDIN
PEERZADE,
SINCE DECEASED BY HIS LRS,
5A. SYED NIZAM SAYED MUNEERUDDIN PEERZADE,
AGE: 41 YEARS, OCC: EMPLOYEE,
R/O: RANEBENNUR, DIST: HAVERI.
5B. SALMA D/O. SAYED MUNEERUDDIN PEERZADE,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, DIST: HAVERI.
5C. KHUSHNUDA D/O SAYED MUNEERUDDIN PEERZADE,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, DIST: HAVERI.
5D. MAHMOODUNNISA D/O SAYED MUNEERUDDIN
PEERZADE,
AGE: 81 YEARS, OCC: HOUSEHOLD WORK,
R/O: RANEBENNUR, DIST: HAVERI.
6. ABDULMAJEED S/O. CHAMANSAB KAMADOD,
AGE: 71 YEARS, OCC: RETIRED TEACHER,
R/O: RANEBENNUR, DIST: HAVERI.
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7. UMARSATI S/O. MUSASAIT KATHEWADE,
AGE: 81 YEARS, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
8. MOHAN S/O. SHAMAPPA BENNUR,
AGE: MAJOR, OCC: BUSINESS,
R/O: RANEBENNUR, DIST: HAVERI.
...RESPONDENTS
(BY SRI. N.P. VIVEKMATH, ADVOCATE FOR
R1(A-C), R1(F), R1(F) IS MINOR R/BY R1(A);
SRI. M.H. PATIL, ADVOCATE FOR R1(D), R4, R5(B-C) & R6;
NOTICE TO R1(E),R2,R3,R5(A),R5(D),R8 IS DISPENSED WITH;
NOTICE TO R7 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE WRIT IN THE
NATURE OF CERTIORARI IN QUASHING THE IMPUGNED ORDER
DATED 31.08.2017 PASSED BY THE COURT OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HAVERI SITTING AT RANEBENNUR
IN R.A. NO.33/2013 VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking for the following reliefs:
A. Issue Writ in the nature of certiorari in quashing the impugned order dated 31.08.2017 passed by the court of II Addl. District And Sessions Judge, Haveri sitting at Ranebennur, in R.A. No.33/2013 vide ANNEXURE-A, in the interest of justice and equity.-5-
NC: 2025:KHC-D:1511 WP No. 111921 of 2017 B. Issue such other suitable order/s or directions as this Hon'ble Court deems fit and proper in the nature and circumstances of the case, in the interest of justice and equity.
2. Petitioners are aggrieved by the order dated 31.08.2017 passed in R.A.No.33 of 2013 on I.A.no.1 filed under Section 5 of the Limitation Act.
3. R.A.No.33 of 2013 had been filed challenging the Judgment and Decree passed in O.S.No.72 of 2006, which was a suit for partition, which came to be decreed on 02/11/2009. Subsequent to the said Judgment and decree, FDP proceedings in FDP No.10/2010 having been filed. Final decree was directed to be drawn up on 21/04/2012.
4. Subsequently execution proceedings were filed in Ex.P.No.270 of 2012, wherein possession delivery warrant was issued and executed, and execution petition was closed on 16/02/2013.
5. It is thereafter that R.A.No.33 of 2013 had been filed along with an application seeking for condonation of -6- NC: 2025:KHC-D:1511 WP No. 111921 of 2017 delay of 1227 days, which came to be allowed by the impugned order.
6. The submission of Shri Nandish Patil learned counsel for the petitioners is that the petitioners have followed all procedures, inasmuch as, notice having been issued to the address of the appellant, the notice not being capable of being served. Notice was affixed on the last known address of the petitioner, which is accepted by trial Court and the matter proceeded with. Therefore, service of notice having been accepted to be completed and the suit having been proceeded and decreed. It is only after the execution of the final decree drawn up in pursuance of the preliminary decree that the appeal is filed. The appeal being completely belated and there being no acceptable reasons to indicate as to why appellant did not appear in the suit and contest the matter. The trial Court ought not to have condoned the delay.
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7. His further submission is that during the course of evidence, the petitioners have cross-examined the respondent, who has categorically accepted that he came to India in the year 1996, 1998, 2008 as also in the year 2012-13 to perform the marriage of his daughter and as such he was aware of the pendency of the suit and has chosen deliberately not to appear in the suit and on that ground, he submits that the order of the first appellate Court not being proper, is required to be set aside.
8. Shri N.P. Vivek Mehta, learned counsel appearing for respondents submits firstly that the respondent was not residing in the address shown in the cause title, he was residing in Saudi Arabia. His wife and children were residing at Cycalgar Oni of Ranebennur town. The respondent was working as a Driver in Saudi Arabia, which is evidenced by the documents including the passport, which has been produced by him.
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9. This fact of respondent working in Saudi Arabia was known to all the family members, without furnishing the proper and correct address, a wrong address had been furnished to take advantage of the absence of the respondent. This aspect has been considered in a proper manner by the trial Court and as such he submits that the order passed by the trial Court need not be in proceeded with.
10. Heard Sri Nandish Patil learned counsel for the petitioners and Sri N.P.Vivek Mehta for respondents No.1(A) to 1(C), 1(F) so also Sri M.H.Patil, advocate for respondents No.1(D), 4, 5(B) to 5(c) and 6.
11. At first blush a delay of 1227 days being condoned by the 1st appellate Court appears to be unreasonable. However, the same would have to be looked into on the basis of the facts of the matter and in the context of the suit. It is undisputed that the petitioners and the respondents are related to each other and the suit is one for partition.
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12. A passport of respondent has been produced which categorically indicating that he is working in Saudi Arabia and he had visited India on stray occasions in the year 1993, 1996, 1998, 2008 and 2012-13. It is based on this, Sri Nandish Patil learned counsel for the petitioners submits that the respondent was aware of the suit and having visited India on those occasions ought to have participated in the suit.
13. If this fact to be taken into consideration, in its right perspective, then there is an admission made by the petitioners that the respondent was residing in Saudi Arabia, was working in Saudi Arabia and used to only visit India on those few occasions.
14. The suit having been filed in the year 2006. The petitioners knowing fully well that the respondent was residing abroad have given the address of Ranebennur, which is the same address of all the other defendants. The petitioner, who is the plaintiff therein ought to have furnished the correct address
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NC: 2025:KHC-D:1511 WP No. 111921 of 2017 of the respondent, if not of Saudi Arabia at least of Cyclagar Oni, Ranebennur where the wife and children were residing, without doing so, notice not having been served came to be so served by way of affixture.
15. Service by way of affixture is a weak service and cannot be accepted, unless the plaintiff were to categorically establish that the defendant was residing or that address was where the defendant was last residing. In this matter, the fact that the passport has been produced and even according to the petitioners the knowledge on part of the respondent is on account of the respondent visiting India on a few occasions, it being established that the respondent was residing in Saudi Arabia. No such presumption can be drawn of service by way of affixture
16. These facts have been rightly taken into consideration by trial Court and the trial Court being
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NC: 2025:KHC-D:1511 WP No. 111921 of 2017 of the opinion that justice must be done and an opportunity be provided to the defendants to contest the matter, taking into also account that almost all known modes of service have not been exercised by the plaintiff to condone the delay. I do not find any infirmity in the said order, the petition stands dismissed.
Sd/-
(SURAJ GOVINDARAJ) JUDGE CKK CT-MCK LIST NO.: 1 SL NO.: 50