Karnataka High Court
Smt Indirabai Baburao Suryavanshi vs Smt Shantha Madhavarao Mulik on 17 August, 2022
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF AUGUST 2022
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
C.R.P.NO.1644/2003
BETWEEN:
1. SMT. INDIRABAI BABURAO SURYAVANSHI
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O. 177/15 POWAN COLONY,
PACHGAR, KOLHAPUR,
2 SRI. AJIT BABURAO SURYAVANSHI,
AGE: 59 YEARS, OCC: SERVICE
R/O. 2019, 'E' WARD RAJARUM PURI,
8TH LANE, KOLHAPUR
SINCE DECEASED BY HIS L RS
2A SMT. SAROJ W/O. AJIT SURYAVANSHI,
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NO 104, 1ST FLOOR,
VISHWESHAR HEIGHTS,
NEAR VIDYUT CONTROL ROAD,
NDA ROAD, SHIVANE, PUNE-412 023
2B ABHISHEK S/O. AJIT SURYAVANSHI,
AGE: 34 YEARS, OCC: SERVICE,
R/O. NO 104, 1ST FLOOR,
VISHWESHAR HEIGHTS,
NEAR VIDYUT CONTROL ROAD,
NDA ROAD, SHIVANE, PUNE-412 023
2C SMT. RAHI W/O. NARENDRA JADHAV,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
2
R/O. NO 113/E, BEHIND STAR TOWER,
ANUSHREE, SHAHUPURI PACH BANGALA,
KAVIR, KOLHAPUR-416 001
3 SRI. DILIP BABURAO SURYAVANSHI,
AGE : 57 YEARS, OCE: SERVICE,
R/O. 1518, MALI GALLI, "A' WARD,
SHIVAJI PETH, KOLHAPUR
4 SRI. SUNIL BABURAO SURYAVANSHI,
AGE : 52 YEARS, OCC: SERVICE,
R/O. 235, HANUMAN NAGAR,
NEAR ITI, PACHAGAON ROAD, KOLHAPUR
5 SRI. RAJENDRA BABURAO SURYAVANSHI,
AGE: 50 YEARS, OCC: SERVICE,
R/O. 780/8, ABILINNA QUALLANY,
PACHAGAON ROAD, KOLHAPUR
6 SRI. SANJAY BABURAO SURYAVANSHI,
AGE: 47 YEARS, R/O. 177/15,
POWAR COLONY, PACHGAON ROAD,
KOLHAPUR
7 SRI. VASANTH BHIMARAO SURYAVANSHI,
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O. H. NO. 11, SHINTRE COLONY,
P B ROAD, NIPANI - 591237,
TAL: CHIKODI, DIST: BELGAUM
SINCE DECEASED BY HIS L RS
7A ABHAY S/O. VASANTH
BHIMARAO SURYAVANSHI,
AGE: 54 YEARS, OCC: SERVICE,
R/O. 1353, 'D' WARD, PLOT NO 2,
YASHODA VISHWAS COLONY,
LAKSHATEERTH, KOLHAPUR
7B PRADEEP S/O. VASANTH
BHIMARAO SURYAVANSHI,
AGE: 49 YEARS, OCC: SERVICE,
R/O. YEGESHWARI APARTMENTS,
3
NEAR PADMAVATI TEMPLE, KOLHAPUR
7C SMT. SAVITA W/O. PRABHAKAR JADHAV,
AGE: 56 YEARS, MANGALWAR PETH,
8TH LANE, NO 300, ICHALKARANJI,
TAL: HATHKANALGALE, DIST: KOLHAPUR
7D SMT. ANURADHA W/O. ANIL PATIL,
AGE: 51 YEARS, R/O. KUNDALAPUR,
TAL: KAVATHE MAHONKAL, DIST: SANGLI
8 SRI. MADHUKAR BHIMARAO SURYAVANSHI,
AGE: 81 YEARS, OCC: RETIRED TEACHER
R/O. SULOKHE NAGAR, PLOT NO 124,
KOLHAPUR-416 007
SINCE DECEASED BY HIS L RS
8A SMT. SAROJ
W/O. MADHUKAR SURYAVANSHI,
AGE: 86 YEARS, OCC: HOUSEHOLD,
R/O. NO. 124, SALOKHENAGAR,
KALAMBA ROAD, NEAR DATTA MANDIR,
KALAMBA, KOLHAPUR-416 004
8B KIRAN S/O. MADHUKAR SURYAVANSHI,
AGE: 54 YEARS, OCC: SERVICE,
R/O. NO 124, SALOKHENAGAR,
KALAMBA ROAD, NEAR DATTA MANDIR,
KALAMBA, KOLHAPUR-416 004
8C ARUN S/O. SURYAVANSHI MADHUKAR
AGE : 52 YEARS, OCC: SERVICE,
R/O. NO 124, SALOKHENAGAR,
KALAMBA ROAD, NEAR DATTA MANDIR,
KALAMBA, KOLHAPUR-416 004
8D SMT. NAMRATA W/O. RAJENDRA BHOSALE,
AGE: 51 YEARS, OCC: SERVICE,
R/O. KHATAV, TAL: KHATAV, DIST: SATARA
9 SRI. SHAMARAO SURYAVANSHI,
AGE: 79 YEARS, OCC: AGRICULTURE,
4
R/O. 11TH MANGALWAR PETH,
P. B. ROAD, NIPANI-591 237, TAL: CHIKODI
SINCE DECEASED BY HIS L RS
9A SUHAS @ BALASAHEB
S/O. SHYAMARAO SURYAVANSHI,
AGE: 54 YEARS, OCE: BUSINESS,
R/O. SHINTRE COLONY, NIPANI-591 237,
TAL: CHIKODI, DIST: BELAGAVI
9B SMT. GEETA W/O. SHIVAJIRAO JADHAV,
AGE: 53 YEARS OCC: HOUSEHOLD WORK
R/O. SURESH NAGAR, DAVANAGERE,
DIST: DAVANAGERE
9C SMT. RENUKA W/O. NANDAKISHORE
SURYAVANSHI,
AGE : 52 YEARS, OCC: HOUSEHOLD WORK
R/O. SURESH NAGAR, DAVANAGERE,
DIST: DAVANAGERE
9D VIJAY S/O. NANDAKISHORE SURYAVANSHI,
AGE: 33 YEARS, OCC: BUSINESS,
R/O. SURESH NAGAR, DAVANAGERE,
DIST: DAVANAGERE
9E RAJU S/O. NANDAKISHORE SURYAVANSHI,
AGE: 31 YEARS, OCC: BUSINESS,
R/O. SURESH NAGAR,
DAVANAGERE, DIST: DAVANAGERE
9F KIRAN S/O. NANDAKISHORE SURYAVANSHI,
AGE: 28 YEARS, OCC:BUSINESS,
R/O. SURESH NAGAR, DAVANAGERE,
DIST: DAVANAGERE
9G SMT. SUJATA W/O. SATISH SURYAVANSHI
AGE: 45 YEARS, OCC: HOUSEHOLD WORK
R/O. SHINTRE COLONY, NIPANI 591 237,
TAL : CHIKODI, DIST: BELAGAVI
9H SUYOG S/O. SATISH SURYAVANSHI,
5
AGE: 28 YEARS, OCC: SERVICE,
R/O. SHINTRE COLONY,
NIPANI-591 237, TAL: CHIKODI,
DIST: BELAGAVI
9I SUMEET S/O. SATISH SURYAVANSHI,
AGE: 26 YEARS, OCC: SERVICE,
R/O. SHINTRE COLONY, NIPANI-591 237,
TAL: CHIKODI, DIST: BELAGAVI
10 SRI. BAPU BHIMARAO SURYAVANSHI,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O. HOUSE NO 11, SHATRY COLONY,
P. B. ROAD, NIPANI-591 237
TAL: CHIKODI, DIST: BELGAUM
SINCE DECEASED BY HIS L RS
10A SHRI SHIRISH S/O. BAPU SURYAVANSHI,
AGE: 44 YEARS, OCC: SERVICE,
R/O. SHINTRE COLONY, NIPANI-591 237
TAL : CHIKODI DIST: BELAGAVI
10B SMT. VAISHALI W/O. RAJENDRA AJAREKAR,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O. NO 2/659, SHAHAPUR,
SAINAGAR, ICHALKARANJI
TAL: HATHKANAGALE, DIST: KOLHAPUR
10C SMT. JYOTI W/O. PANDIT MAGADUM,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O. SHINTRE COLONY, NIPANI - 591 237,
TAL : CHIKODI, DIST: BELAGAVI
11 SRI. VISHNU BHIMARAO SURYAVANSHI,
AGE: 68 YEARS, OCE: RETIRED DRIVER,
R/O. NO 6, DATTA COLONY,
NEAR DEEP SEVAK SOCIETY,
GADIGL PLOT NO.24/1,
KOLHAPUR -416013
12 SRI. MANOHAR BHIMARAO SURYAVANSHI,
AGE: 72 YEARS, OCC: RETIRED TEACHER,
6
R/O. 20B, DATT COLONY, LANE NO 2,
PACHGAR, TALUK KARVIR, KOLHAPUR-416013
13 SMT. JANAKIBAI SEETARAM PATANKAR,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O. NIPANI - 591 237,
TAL: CHIKODI, DIST: BELAGAVI
SINCE DECEASED BY HER L RS
13A PRAKASH S/O. SEETAKANT PATANKAR,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. NO 2769, YOGESHWAR APARTMENTS,
NEAR PADMAVATI TEMPLE, KOLHAPUR
SINCE DECEASED BY HIS L RS
13A(a) INDRAJEET S/O. PRAKASH PATANKAR,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. NO 3433, PATANKAR GALLI,
NIPANI - 591 237, DIST: BELAGAVI
13A(b) ABHIJEET S/O. PRAKASH PATANKAR
AGE: 46 YEARS, OCC: SERVICE,
R/O. A-503, SAI DATTA NIVAS,
SY. NO. 5/5/4, AMBEGAON KHURD,
NEAR TELCO COLONY, PUNE-411 046
13A(c) SMT. MAITHILI
W/O. AJIT KONDEDESHMUKH,
AGE: 44 YEARS, OCC: HOUSEWIFE,
R/O. 754 FLAT NO. 1, KONDE NIVAS,
NEHRU CHOWK, SHUKRAWAR PETH,
PUNE-411 002
13A(d) ROHIT S/O. PRAKASH PATANKAR
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. NO. 3433, PATANKAR GALLI,
NIPANI - 591 237, DIST: BELAGAVI
13B. SMT. MANDAKINI W/O. CHANDRAKANT PAWAR,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O. NO. 15/1F, JOTIBA NILAY,
MAHISHI COMPOUND,
7
TRAINING COLLEGE ROAD, DHARWAD
13C SMT. SUSHMITA W/O. SUBHASH DALAVI,
AGE: 60 YEARS, OCE: HOUSEHOLD WORK,
R/O. NO 185/1A, JAYAKAR BUILDING,
MANGALWEDI, MAHIM BAZAR,
CADLE ROAD, MUMBAI - 400 016
13D SMT. VIDYA W/O. PARASHURAM MANDALIK,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. FLAT NO G-1, BUILDING NO. A-4,
PLANET MILLENIUM, PIMPLE SAVADAGAR,
PUNE-411 027
14 SMT. INDUMATI JAYASHIMRAO PATANKAR
AGE : 78 YEARS, OCC: HOUSE HOLD WORK,
R/O. DATTA NAGAR GALLI,
BEHIND MGM HOSPITAL,
SHIVAJINAGAR, NIPANI-591 237
TAL: CHIKODI
SINCE DECEASED BY HER L RS
14A SMT. VIJAYAMALA
W/O. KRISHNAKANT BALE,
AGE: 68 YEARS, OCC: HOUSEHOLD,
R/O. NO. 168, 'YASHASWINI',
SALOKHENAGAR, KOLHAPUR
14B VILAS, JAYASINGHRAO PATANKAR,
AGE: 66 YEARS, OCC: PENSIONER,
R/O. KARADAGA, TAL: CHIKODI,
DIST: BELGAUM
14C ANIL S/O. JAYASINGHRAO PATANKAR,
AGE: 63 YEARS, OCC: BUSINESS,
R/O. BEHIND GANDHI HOSPITAL, NIPANI,
TAL: CHIKODI, DIST: BELGAUM
14D PRADIP S/O. JAYASINGHRAO PATANKAR,
AGE: 57 YEARS, OCC: BUSINESS,
R/O. PATANKAR GALLI, NIPANI,
TAL: CHIKODI, DIST: BELGAUM
8
SINCE DECEASED BY HIS L RS
14D(a) AKSHAY S/O. PRADIP PATANKAR,
AGE : 34 YEARS, OCC: SERVICE,
R/O. NO 3747/9, BIRDEV NAGAR,
NEAR M. G. M. HOSPITAL, WARD NO.25,
NIPPANI - 591 237, DIST: BELAGAVI
14D(b) SMT. SHASHIKALA
W/O. PRADIP PATANKAR,
AGE: 34 YEARS OCE: HOUSEWIFE,
R/O. NO. 3747/9, BIRDEV NAGAR,
NEAR M. G. M. HOSPITAL, WARD NO 25,
NIPPANI-591 237, DIST: BELAGAVI
14D(c) MRS MONIKA W/O. SANJAY NAGAONKAR,
AGE: 43 YEARS, OCC: HOUSEWIFE,
R/O. NO 4668, 6TH GALLI, SHIVAJI NAGAR,
VTC: NIPPANI (RURAL) - 591 237,
DIST: BELAGAVI
14D(d) MRS DEEPALI W/O. SANJAY BASARGE,
AGE: 40 YEARS, OCE: HOUSEWIFE
R/O. NO. AMBILI KATTI, KAGAL - 416 216,
DIST: KOLHAPUR
14D(e) MRS. AMRUTA W/O. HEMANT SHINDE,
AGE: 35 YEARS, OCC: HOUSEWIFE,
R/O. NO. H. NO. 594, KAGALE MAL,
GOKUL SHIRGAON, MIDC, KARVIR,
KOLHAPUR -416 234
14E SMT. SHAILAJA W/O. PADMAKAR YADAV,
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O. 24TH, SHIVAJI HOUSING SOCIETY,
PUNE, MAHARASHTRA STATE
15 SMT. ARUNA HOMBIRRAO GHATAGE,
AGE: 77 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEW BAZAR MARKET,
RADHANAGAR, DIST: KOLHAPUR
SINCE DECEASED BY HER L RS
9
15A UDAY S/O. HAMBIRAO GHATAGE,
AGE: 67 YEARS, OCC: RETIRED,
R/O. NO. 201, INDU APARTMENT,
PAYMAL VASAHAT, RAJARAMPURI,
KOLHAPUR-416 008
15B RAVINDRA S/O. HAMBIRAO GHATAGE,
AGE: 63 YEARS, OCC: RETIRED,
R/O. NO. 1014/12, A WARD,
SAI COLONY, APTE NAGAR,
KOLHAPUR 416 012
15C RAJENDRA S/O. HAMBIRAO GHATAGE,
AGE: 61 YEARS, OCC: RETIRED,
R/O. NAVI PATH, RADHNAGARI,
KOLHAPUR-416 212
15D SANJAY S/O. HAMBIRAO GHATAGE,
AGE: 52 YEARS, OCE: AGRICULTURE,
R/O. NO. 10, TARABAI MAIN ROAD,
MUKTA SAINIK VASAHAT,
GURU MARKET YARD, KOLHAPUR -416 005
15E SMT. BHARATI W/O. DILIP SAWANT,
AGE: 60 YEARS, OCE: HOUSEHOLD,
R/O. NO. 10, NEAR SURAJ HONDA SERVICE,
KARAVIR, KOLHAPUR 416 005
15F SMT. JAYASHRI W/O. BALASO PATIL,
AGE: 58 YEARS, OCE: HOUSEHOLD,
R/O. 'TULASI DARSHAN', DHAMOD,
KOLHAPUR 416 211
... APPELLANTS
(BY SRI. RAVI S. BALIKAI, AND SRI. K. ANANDKUMAR,
ADVOCATES FOR PROPOSED LRS OF DECEASED PETITIONERS 2,
7 TO 10, 13 AND 14 PROPOSED P15(A TO F))
AND:
10
1 SMT. SHANTA
W/O. MADHAVARAO MULIK,
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NARAKE CHAL, SHIVAJI PETH,
KOLHAPUR-416 012
SINCE DECEASED BY HER L RS
1A SMT. MANGAL
W/O. GANAPATRAO INDULKAR,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O. PRATIBHA NAGAR, WALI HOUSE,
PLOT NO. 10, NALAWADE COLONY,
KOLHAPUR-416 008
1B SMT. MEENA W/O. RAMARAO CHAVAN,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. 'BHAGAV VIHAR',
NARAYAN BAGI, TOLA NAKA,
OPP. DNYANADEV SCHOOL,
VADAGAV BUDRUK, PLOT NO 4,
PUNE-410 244 RAMARAO
1C SMT. SHEELA W/O. EKNATH BHALERAO,
AGE : 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NEAR PANDURANG HOTEL,
SANE GURUJI VASAHAT,
KOLHAPUR-416 009
1D SMT. KANCHAN
W/O. VASANTRAO PATIL,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR LAXMI TEMPLE, KOGNOLI,
TAL : CHIKODI, DIST: BELAGAVI
2 SHRI CHOLU MADHAVARAO MULIK,
AGE : 25 YEARS, OCC : SERVICE,
R/O. NARAKE CHAL, SHIVAJI PETH,
KOLHAPUR 416 012
11
ALSO ONE OF THE L RS OF RESPT -1
3 SMT. SHANTA W/O. YESHWANT MULIK,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O. HATAKANAGALA - 415 109,
TAL : HATAKANAGALA, DT KOLHAPUR
SINCE DECEASED BY HER L RS
3A SMT. JAYASHRI W/O. SAHADEV PATIL,
AGE : 51 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SANE GURUJI VASAHAT,
RAJYOPADHYA NAGAR, KOLHAPUR
3B SMT. ALKA W/O. HARISH PATIL,
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O. PACHATIKATI,
TAL: HATHKANAGALE,
DIST: KOLHAPUR
4 SHRI RAJU YESHWANT MULIK,
AGE: 23 YEARS, OCC: TRADE,
R/O. HATAKANAGALA,
TAL: HATAKANAGALA,
DIST: KOLHAPUR - 415 109
5 SHRI BALASAHEB DATTATRAYA MULIK,
AGE: 55 YEARS, OCC: TRADE,
R/O. DATTA GALLI, NIPANI-591 237,
TAL: CHIKODI, DIST: BELGAUM
SINCE DECEASED BY HIS L RS
5A SMT. SHARADA
W/O. BALASAHEB MULIK,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O. DATTA GALLI, NIPANI - 591 237,
TAL: CHIKODI, DIST: BELGAUM
6 SHRI VISHNU DATTATRAYA MULIK,
AGE: 35 YEARS, OCC: SERVICE,
12
R/O. DATTA GALLI, NIPANI - 591 237,
TAL: CHIKODI, DIST: BELGAUM
7 SHRI SUBBASH DATTATRAYA MULIK,
AGE: 30 YEARS, OCE: TRADE,
R/O. DATTA GALLI, NIPANI-591 237,
TALUK CHIKODI, DIST: BELGAUM
8 SHRI PRABAKAR DATTATRAYA MULIK,
AGE: MAJOR, R/O. DATTA GALLI,
NIPANI-591 237, TAL: CHIKODI,
DIST: BELGAUM
SINCE DECEASED BY HIS L RS
8A SMT. HEMALATA
W/O. PRABHAKAR MULIK,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O. DATTA GALLI, NIPANI -591 237,
TAL: CHIKODI, DIST: BELGAUM
8B SHRI MAHESH
S/O. PRABHAKAR MULIK,
AGE: 26 YEARS,
R/O. DATTA GALLI, NIPANI - 591 237,
TAL: CHIKODI, DIST: BELGAUM
8C MISS. MANISHA
D/O. PRABHAKAR MULIK,
AGE: 24 YEARS, R/O. DATTA GALLI,
NIPANI -591 237,
TAL: CHIKODI, DIST: BELGAUM
8D NILESH S/O. PRABHAKAR MULIK,
AGE: 20 YEARS, OCC: STUDENT,
R/O. DATTA GALLI, NIPANI -591 237,
TAL: CHIKODI, DIST: BELGAUM
9 SHRI RAMESH DATTATRAYA MULIK,
AGE : 25 YEARS, OCC: TRADE,
R/O. DATTA GALLI, NIPANI - 591 237,
TAL: CHIKODI, DIST : BELGAUM
13
10 SMT. KAPLANA ANANDRAO JADHAV,
OCC: HOUSEHOLD WORK,
R/O. WARD NO 9, H. NO. 325,
PLOT NO.6, SAHAKAR NAGAR,
ICHALAKARNJI -416 115,
DIST: KOLHAPUR
... RESPONDENTS
(BY SRI. RAMESH B ANNEPPANAVAR, ADV., FOR RESPONDENTS 2,
4, 6, 7 AND 9; SRI. BALAGOUDA A PATIL, ADV., FOR R6;
R5(A) H/S; SRI. S. B. DEYANNAVAR, ADV., FOR IMPLEADING
PROPOSED RESPONDENTS 8(A TO D); R1(A), R1(B), R1(C) &
R1(D) SERVED; R3(A) SERVED; R3(B) H/S; R10 SERVED)
THIS CRP IS FILED UNDER SECTION 115 OF CPC PRAYING
TO SET ASIDE THE ORDER DATED 21.12.2002 IN M.A.NO.22/1995
PASSED IN MISC. APPEAL NO.22/1995 ON THE FILE OF THE CIVIL
JUDGE, (SR.DN.), CHIKODI, DISMISSING THE MISC. APPEAL AND
CONFIRMING THE ORDER DTD.24.07.1995 PASSED IN MISC.
NO.19/1994 ON THE FILE OF THE MUNSIFF & JMFC, NIPANI,
DISMISSING THE PETITION FILED U/O 9 R 13 OF CPC FOR
SETTING ASIDE EXPARTE DECREE IN OS NO.55/1975
DTD.18.10.1976.
THIS CRP HAVING BEEN RESERVED ON 21.02.2022 AND
COMING ON FOR PRONUNCEMENT OF ORDER, THIS DAY COURT
DELIVERED THE FOLLOWING:
14
ORDER
The captioned civil revision petition is filed by petitioner in Misc.No.19/1994, who filed miscellaneous petition under Order IX Rule 13 of CPC praying for setting aside the exparte decree dated 18.10.1976 in O.S.No.55/1975 passed by the Principle Civil Judge, Chikodi.
2. The facts leading to the case are as under:
The petitioners filed miscellaneous petition No.19/1994 under Order IX Rule 13 of CPC questioning the exparte decree passed in O.S.No.55/1975. The petitioners claim that one Tanubai Bhimarao Suryavamsi was the owner in possession of the land bearing survey No.111 and 111/2, situated at Nipani village of Chikodi taluk. The petitioners claim that one Dattatreya Parvatrao Mulik created a false, fabricated and forged agreement of sale purported to have been executed by deceased Tanubai and filed a suit for specific performance of contract in O.S.No.55/1975. The petitioner also claimed that summons on deceased Tanubai was never served on her. The petitioners further claimed that 15 Dattatreya created a false document regarding service of summons and managed to obtaine an exparte decree against deceased Tanubai for specific performance of agreement of sale. The petitioners specifically claimed that their mother- Tanubai never executed any agreement of sale in respect of the suit lands. The petitioners specifically contended that though decree was passed on 18.10.1976 in O.S.No.55/1975, no execution petition was filed during the lifetime of deceased Tanubai. The petitioners claim that their mother died on 14.01.1981 and it is only after her death, suppressing all material facts, execution petition was filed in the year 1996. Therefore, it is a specific case of the petitioners that neither their mother Tanubai nor the present petitioners were aware of the institution of suit in O.S.No.55/1975 and were also not aware of passing exparte decree against deceased Tanubai. The petitioners claimed that they came to know about the decree only when they appeared before the Executing Court in E.P.No.277/1986. Hence, miscellaneous petition was filed by the petitioners against the respondents.16
3. The original respondent viz., Dattatreya filed his objections by specifically contending that the miscellaneous petition is time barred. The allegations in the miscellaneous petition that no summons was served on deceased-Tanubai amounts to contempt of Court and Court should take serious note of the averments made in the miscellaneous petition. The respondent contended that deceased-Tanubai had voluntarily executed an agreement of sale in favour of respondent-plaintiff viz., Dattatreya and though summons was duly served on her, she did not chose to contest the suit as the claim made by the respondent-plaintiff was true and she had no defence.
4. The petitioners in order to prove and substantiate their claim that summons was not served on their mother and their mother during her lifetime was prevented by sufficient cause for not appearing in the suit, let in oral evidence by examining petitioner No.1 as PW1. In order to prove that original defendant-Tanubai was not keeping good health, examined two doctors as PW2 and PW3. The 17 orthopedic surgeon who has treated Tanubai at Miraj was examined as PW2 and the family doctor of deceased Tanubai was examined as PW3. In support of their contention, the petitioners adduced documentary evidence vide Ex.P1 to Ex.P12. The original plaintiff i.e., Dattatreya Mulik was examined as DW1 and he adduced rebuttal documentary evidence vide Ex.D1 to Ex.D4. The Trial Court, which has passed exparte decree, having examined the rival contentions of the parties and the material placed on record has come to the conclusion that the signature obtained on postal acknowledgment produced at Ex.D2 bears signature of deceased-Tanubai. The contention of petitioners that in 1974 deceased-Tanubai had sustained fracture of her right hip and compound fracture of both bones of right forearm and was unable to move and was not in a position to put her signature on Ex.1 and Ex.P2 was negatived by the Trial Court. The Trial Court applying the presumption of official acts done in due course of official business would give rise to presumption and therefore, in absence of rebuttal evidence let in by the petitioners to show that the endorsement is 18 false and forged, the Trial Court has proceeded to hold that the signature on Ex.P2 is that of Tanubai. The Trial Court has casted burden on the petitioners and has come to the conclusion that they have failed to examine the concerned process-server to substantiate their claim that summons was never served on deceased-Tanubai. On the contrary, the Trial Court was of the view that there is sufficient material on record to hold that summons was duly served on deceased- Tanubai in O.S.No.55/1975 as per Ex.D1 and Ex.D2-report. It is in this background, the Trial Court was of the view that there is nothing on record to show that these reports have been forged or created at the instance of plaintiff. The Trial Court was of the view that having attributed serious allegations of forgery and creation of documents, the petitioners ought to have exhibited great caution by proving the same by producing cogent evidence. On these set of reasonings, the Trial Court has come to the conclusion that the petitioners have miserably failed to prove that deceased- Tanubai was prevented in appearing in O.S.No.55/1975 for 19 want of service of summons and consequently miscellaneous petition was rejected.
5. The Trial Court has also rejected the petition on the ground that all the legal representatives of deceased Baburao Bhimarao Suryavamsi are not brought on record. The Trial Court was of the view that the cause of action is inseparable and therefore, the ratio laid down in 1973 (1) Mysore Law Journal 210 is not applicable to the present case on hand. It is in this background, the Trial Court was of the view that non-bringing of legal representatives of deceased Baburao Bhimarao Suryavamsi would follow the consequences and therefore, would leave the decree in favour of respondent-plaintiff undisturbed insofar as petitioner No.1 is concerned and thereby applying the principles laid down by the Hon'ble Apex Court in the case of AIR 1974 SC 294, the Trial Court was of the view that the entire petition abates since all the legal representatives of deceased-Tanubai are claiming through her and when there is no independent claim by the petitioners and admittedly 20 decree was passed against deceased-Tanubai only, Trial Court was of the view that the cause of action would not survive against the surviving petitioners and hence, the Trial Court proceeded to dismiss the miscellaneous petition as abated as legal representatives of deceased first petitioner were not brought on record.
6. Feeling aggrieved by the order of the Trial Court, the petitioners preferred appeal in Misc.Appeal No.22/1995. The appellate Court has conducted enquiry in regard to claim of the petitioners in two folds. While examining as to whether the entire petition stood abated on account of death of petitioner No.1, the Appellate Court has also concurred with the findings of the Trial Court and has come to the conclusion that on account of death of petitioner No.1, the entire miscellaneous petition stood abated. While examining as to whether the original defendant-Tanubai was duly served with summons or that she was prevented from sufficient cause from appearing when the suit was called for hearing, the Appellate Court has gone through the records 21 and has concurred with the findings arrived at by the Trial Court. The Appellate Court, on examination, found that there was no irregularities in the endorsement made in the order sheet. It is in this background, the Appellate Court having referred to Ex.D1 and Ex.D2 has come to the conclusion that summons sent in O.S.No.55/1975 was not returned as refused but it was duly served on her. It is in this background, the Appellate Court was of the view that the contention raised by the petitioners in the miscellaneous appeal lacks merit. The Appellate Court was of the view that even assuming that summons by RPAD was not served on proper address, even then there is proper service of summons on defendant-Tanubai, which was sent through process server of the Court and this finding is recorded by referring to recitals of Ex.D1. The Appellate Court also found that though during trial, the petitioners claimed that the signature on the summons is not that of their mother and their mother-Tanubai was not in a position to put her signature, these contentions were not supported by pleadings and therefore, the Appellate Court was of the view 22 that any amount of evidence on this aspect without pleading is no evidence in the eye of law. On these set of reasonings, the Appellate Court was of the view that the miscellaneous petition filed by the petitioners in Misc. No.19/1994 does not deserve to be allowed and concurred with the findings recorded by the Trial Court.
7. The learned counsel appearing for the petitioners, reiterating the grounds raised in the civil revision petition would vehemently argue and contend before this Court that the entire procedure adopted by the Trial Court in passing exparte decree suffers from serious defect in procedure. Firstly, he would take this Court to the order sheet and submit to this Court that the judgment is virtually written in order sheet without framing issues. He would then straightaway take this Court to the address shown in the cause title of the plaint and submit to this Court that her address is shown as resident of Nipani. The address shown in the plaint itself is incomplete and defective. He would then request this Court to go through the order sheet and various 23 dates and submit that there is tampering of the order sheet. He would further contend that the conduct of the original plaintiff-Dattatreya is found wanting in the present case on hand, having obtained exparte decree on 18.10.1976 in O.S.No.55/1975. He would further submit to this Court that though the suit was decreed in the year 1976, the plaintiff for the reasons best known to him, does not file execution petition for almost ten years. He would then take this Court to the objections filed by the original opponent to the miscellaneous petition. To support the exparte decree, the original respondent has nowhere specifically pleaded that summons was served at a proper address and that she was residing at Kolhapur. Both the Courts below have not at all discussed and examined the medical evidence. Two doctors are examined on behalf of the petitioners. PW2 is an orthopedic surgeon, who treated deceased Tanubai during her lifetime and his evidence was quite crucial. He further submitted to this Court that the family doctor who is examined as PW2 has also deposed in regard to health of Tanubai. He would submit to this Court that Tanubai was 24 residing at Nipani during her lifetime and therefore, the address shown as Kolhapur is fictitious and the same stands controverted in view of Ex.P2. Further by referring to Ex.D2, which is seriously disputed by the petitioners, he would submit to this Court that the signature on the acknowledgment at Ex.D2 would clearly falsify the claim of respondent that there was due service of summons on Tanubai. Referring to the admitted signatures of Tanubai, he would submit to this Court that prima-facie signature on Ex.D2 is not that of Tanubai. At this stage, he would also bring to the notice of this Court even in Ex.D2, the address at Kolhapur is also quite incomplete. The address at Kolhapur is shown as 2752, 'B' Ward, Kolhapur. He would submit to this Court that the address is also incomplete. The case of the petitioners would further get strengthened by the oral evidence of respondent, who has admitted in an unequivocal terms in his examination-in-chief that Tanubai was residing at Nipani. Reiterating the grounds urged in the civil revision petition, he has placed reliance on the following decisions: 25
• In the case of Shri. M. V. Thippeswamy reported in (2003) 1 KCCR 507 • In the case of Sri. Venkatesh v. Sri. P. Subbaiah and another reported in ILR 2007 KAR 3912 • In the case of Bank of India v. Mehta brothers and others (2008) 13 SCC 466 • In the case of Vijay Singh v. Shanti Devi and another reported in (2007) 8 SCC 837 • In the case of Parimal v. Veena Alias Bharti reported in (2011) 3 SCC 545
8. The learned counsel for the respondents countering the contentions canvassed by the learned counsel appearing for the petitioners would submit that there are absolutely no pleadings indicating that she was sick and therefore, evidence of Doctors who are examined as PW2 and PW3 would be of no consequence and therefore, the evidence is totally inadmissible for want of pleadings. He would further contend that the petitioner No.1A died during the pendency of miscellaneous petition and therefore, the 26 miscellaneous petition stands abated. This fact is dealt by both the Courts below. Placing reliance on Order V Rule 19 of CPC he would submit to this Court that defendant-Tanubai was served through process server as well as through RPAD. Therefore, the burden would shift on the present petitioners to prove that the signature was not that of defendant- Tanubai. He would conclude his arguments by contending that the decree in O.S.No.55/1975 came to be passed on 18.10.1976 and execution petition was filed in the year 1986 and therefore, the execution petition was well within twelve years and therefore, the same is maintainable.
9. Heard learned counsel for the petitioners and learned counsel for the respondents. I have gone through the judgments rendered by the Trial Court and the Appellate Court. I have also given my anxious consideration to the entire material on record.
10. The legal heirs of sole defendant Tanubai have filed a miscellaneous petition under Order 9 Rule 13 of CPC questioning the exparte decree passed in specific 27 performance suit. It is not in dispute that the suit schedule property was owned by Tanubai. It has come on record that suit schedule property is sthreedhan property. Both the Courts have rejected the application on two counts. Firstly, on the ground that petitioner No.1(a) who is one of the son of original defendant Tanubai died during the pendency of miscellaneous proceedings and his legal heirs were not brought on record. Therefore, both the Courts have come to conclusion that the decree is indivisible on account of death of one the legal representative and in absence of his LRs. would leave the decree undisturbed insofar as petitioner No.1 is concerned. Therefore, both the Courts have come to conclusion that entire petition abates and the same is liable to be dismissed.
11. The second ground on which both the Courts have declined to entertain the miscellaneous petition is that summons was duly served on the defendant and in absence of specific pleadings regarding ill health of sole defendant Tanubai, the oral evidence let in by the petitioners would 28 come to their aid and therefore, both the Courts have concurrently held that summons was duly served on the defendant. Both the Courts have also held that petitioners have failed to establish sufficient cause for non-appearing before the Court. Therefore, the following points would arise for consideration before this Court:
1) Whether the provisions of Rule 4 of Order 22 are applicable to the miscellaneous proceedings on a petition filed under Order 9 Rule 13 and therefore, on account of death of petitioner No.1, the other petitioners are not entitled to prosecute the petition seeking setting aside exparte decree?
2) Whether the finding of the Courts below that summons was duly served on the defendant is erroneous and in absence of evidence to that effect?
3) Whether both the Courts erred in holding that petitioners have failed to show sufficient cause which prevented the original defendant from contesting the suit?29
Re: Point No.1:
12. Feeling aggrieved by the exparte decree, the legal heirs of deceased sole defendant Tanubai have filed a miscellaneous petition for setting aside the exparte decree. One of the son of sole defendant who was arrayed as petitioner No.1 has died. However, the other siblings have prosecuted the miscellaneous proceedings. The question that needs to be examined is whether the provisions of Rule 4 of Order 22 can be made applicable to the miscellaneous proceedings initiated under the provisions of Order 9 Rule
13.
13. Some of the tests relevant for judging the question whether the suit will abate in its entirety for non- impleading the legal representatives of one of the defendants who die during the pendency of the suit are a) whether deceased defendant was necessary party to the suit or in other words, if the plaintiff could file a suit excluding the deceased defendant. Therefore, the principles enumerated under the provisions of Rule 4 of Order 22 is to find out as to 30 whether the impossibility to proceed with the suit or appeal may arise from the suit or appeal becoming imperfectly constituted for want of necessary or essential parties. The Court has to also examine the impossibility to proceed with the suit or appeal may arise from the fact that the plaintiff or the appellant would not have brought the action against the remaining defendants or respondents alone. The impossibility to proceed with the suit or appeal from the undesirable possibility of having two inconsistent or contradictory decrees in one and the same suit has to be also tested to ascertain whether the proceedings either pending in suit or appeal stand abated on account of not bringing LRs. of deceased party.
14. These broader principles while dealing with the suit or an appeal have to be taken into consideration to ascertain whether the decree is divisible or on account of death of a party, the entire proceedings would abate. Therefore, it is in this background, the question as to whether on account of death of petitioner No.1 would render 31 it impossible to proceed with miscellaneous proceedings under the provisions of Order 9 Rule 13 needs consideration at the hands of this Court.
15. Admittedly, the legal heirs of deceased defendant represent the estate of deceased in the miscellaneous proceedings. Therefore, mere admission of a person as a legal heir of a deceased party in miscellaneous proceedings will not conclusively decide the rights of the legal representatives. The legal heirs are only prosecuting the right of a deceased defendant. In the proceedings under Order 9 Rule 13, on account of death of sole defendant who suffered an exparte decree, legal heirs are required to establish any of the conditions enumerated under the provisions of Rule 13 of Order 9. The question that needs to be determined in the above said proceedings is to whether summons was duly served on the defendant or defendant had a sufficient cause which prevented her from appearing before the Court on the date of hearing. It is in this background, this Court is unable to understand as to how the 32 miscellaneous proceedings will abate on account of death of one of the legal heir.
16. In a miscellaneous proceedings, the decree is not questioned on merits. The challenge to the exparte decree is on the ground that summons was not duly served as well as on the ground that sole defendant was not keeping good health and therefore, she was prevented from contesting the proceedings. This aspect is not dealt with by both the Courts. The miscellaneous petition is rejected as abated on the ground that petitioner No.1 died and his LRs. were not brought on record. The other legal heirs were already on record and they in a representative capacity as well as in the capacity of representing the estate of the deceased have filed an application seeking setting aside exparte decree. Therefore, I am of the view that both the Courts erred in holding that the miscellaneous proceedings stood abated on account of death of petitioner No.1. Therefore, point No.1 formulated above is answered in the negative. 33 Re: Point Nos.2 and 3:
17. The petitioners have let in evidence. It is the specific case of the petitioners that their mother Tanubai was bedridden as she had sustained fractures. The petitioners claim that deceased defendant was residing at house No.11, Mangalwarpeth, Nipani. The petitioners claim that no bailiff or process server had visited the house at Mangalwarpeth and no summons were served on their mother as alleged. The petitioners have also seriously disputed the service of summons at Kolhapur. The petitioners have also made an attempt to adduce medical evidence by examining two doctors. An orthopedic is examined as PW.2 who has deposed in his evidence to the effect that deceased defendant during her lifetime had sustained pelvic fracture, fracture of hip right side, compound fracture of both bones of right forearm near the wrist. While PW.3 appears to be a family Doctor who has also deposed to the effect that Tanubai had sustained fractures on her hip of right hand. He has deposed to the effect that she was treated previously at 34 Miraj. He has also specifically deposed that Tanubai was very weak and she was confined to bed and was not in a position to walk. He has further deposed to the effect that he had to go to her house and give treatment as she was not in a position to move. The evidence of both the Doctors is discarded by both the Courts on the premise that it is not supported by pleadings.
18. Insofar this finding is concerned, this Court is of the view that both the Courts have virtually adopted a hyper technical approach. It is trite law that words "sufficient cause" under Order 9 Rule 13 have to be liberally interpreted. This Court on examination of the evidence on record let in by the petitioners would find that in fact sufficient evidence was adduced to satisfy the Court that the legal representatives of original defendant and the original defendant were not aware of passing of the exparte decree. On examination of the orders under challenge, this Court would find that the Trial Court has not properly enquired to ascertain as to whether exparte proceedings have 35 commenced in a proper manner and culminated in the exparte decree. An exparte decree can be set aside when a good cause is given for non-appearance. Under Order 9 Rule 13, applicant is only required to show sufficient cause for his/her absence on the hearing of the case. Therefore, the Court dealing with a petition under Order 9 Rule 13 has to look at that and no other factor in making up its mind while dealing with petition filed under Order 9 Rule 13.
19. In the cause title of the plaint, the defendant is shown to be resident of Nipani. No detail address is given. There are no materials indicating that why plaintiff chose to take summons to Kolhapur address. The respondents in miscellaneous proceedings have not discharged their initial burden. The bailiff is not examined to prove the contents of endorsement. Therefore, this Court would find that several significant details would create a doubt in the manner in which the original defendant Tanubai was placed exparte. Therefore, the orders under challenge are liable to be set aside both on the ground of sufficient cause as well as for 36 want of proper service of summons on defendant. The material on record does not inspire any confidence in the Court. If defendant was bedridden at the relevant point of time, there is absolutely no evidence let in by the respondents to demonstrate that defendant had temporarily shifted to Kolhapur which is in Maharashtra State. When summons was issued to Nipani addreses, no materials are placed on record to indicate as to how a bailiff could have served summons at Kolhapur. These relevant details are not at all considered by both the Courts. Therefore, this Court is of the view that the orders under challenge is not at all sustainable.
20. The judgments cited by the learned counsel appearing for the petitioners are applicable to the present case on hand. The Coordinate Bench of this Court in the case of Sri Venkatesh vs. Sri P.Subbaiah and Another1, in an identical case, was of the view that the Courts are required to adopt liberal approach to meet the ends of justice 1 ILR 2007 Kar 3912 37 and to construe sufficient cause is an elastic expression without hard and fast guidelines and provide an opportunity to put forth the case within reasonable time.
21. While considering an application under the provisions of Rule 13 of Order 19, the Court is required to examine whether there are justifiable grounds available for setting aside an exparte decree. In an application under this Rule, the Court has to satisfy itself a) whether summons has not been duly served, or b) whether applicant has been prevented by sufficient cause from appearing and contesting the suit. The words in the Rule are imperative and if either of these conditions is satisfied, the Court is bound to set aside exparte decree and cannot refuse it on any other ground. While setting aside exparte decree, factors to be considered are not confined to find as to sufficiency of reasons for non-appearance. The Court has to also find out the totality of situation including the defect in its own procedure.
38
22. In the present case on hand, both the Courts have proceeded to hold that summons was duly served on the original defendant Tanubai at Kolhapur. The legal heirs of deceased defendant have filed the present application by invoking Rule 13 of Order 9 of CPC by specifically contending that the address itself was incomplete and summons was never served on the original defendant. The importance of Rule 19 is that the Court has to be satisfied with the report submitted by the process server and if the Court finds that service is proper on the basis of report, then only the Court has to declare that the service is proper and then proceed in accordance with law. Therefore, while examining as to whether summons was duly served, it would be always incumbent on the part of the Court to examine the bailiff in order to record satisfaction regarding service of summons. If there is no proper service of summons, defendant cannot be directed to be proceeded exparte.
23. The best proof of service is the return which the serving office is bound to return to the Court and which must 39 contain all that is done in the matter of effecting service. Where there is a verification by an affidavit of a serving officer, the examination of serving officer is a matter of discretion with the Court. Even is such cases, the Court should not act mechanically on the affidavit of serving officer. The Court ought to be satisfied that it can safely declare that summons has been duly served on the defendant. Therefore, the Court has to meticulously examine the materials relating to proper service of summons. Therefore, what emerges from these provisions is that the burden is always on the party who claims that there was due service of summons on the defendant.
24. The provisions under Rule 13 casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that summons was duly served. Therefore, any default or casual approach on the part of the Court may result in depriving a person of his valuable right to participate in the proceedings and may result in defendant 40 suffering an exparte decree. Therefore, on examination of the material on record, this Court is of the view that both the Courts would have been conscious of its obligations cast on it by Order 9 Rule 13. There are lot of significant details which really create doubt in regard to due service of summons on the defendant. Admittedly, an agreement to sell is sought to be enforced against an old lady who was bedridden at the relevant point of time. Two doctors who are examined by the legal heirs of deceased sole defendant have deposed and have specifically stated that deceased was bed ridden at the relevant point of time when suit was instituted by the plaintiff. The entire judgment is written in an order sheet after placing defendant exparte. The suit is initially filed by showing the address of the defendant as resident of Nipani. This address is also found to be incomplete. Thereafter bailiff has served summons at Kolhapur which is admittedly beyond the jurisdiction of the Court where the suit was pending for consideration. There is no material indicating that bailiff who had served summons has furnished requisite declaration indicating due service of summons. The entire 41 burden was on the plaintiff to establish that there was a due service of summons. Both the Courts strangely have casted burden on the legal heirs of sole defendant to demonstrate that there was no due service of summons. All these significant details would clearly establish that there was sufficient cause for sole defendant who failed to contest the proceedings on both the counts. The service of summons itself appears to be doubtful and the medical evidence on record would further demonstrates that she was prevented from sufficient cause from contesting the proceedings. It is in this context, this Court would find that both the Courts below have really adopted a very technical and narrow approach in not setting aside the exparte decree and hearing and deciding the matter on merits after affording opportunity to the legal heirs of sole defendant. Therefore, this Court is of the view that the order passed by the Trial Court on an petition filed under Order 9 Rule 13 of CPC is not at all sustainable. The same is liable to be set aside by this Court. Accordingly, point Nos.2 and 3 formulated above are answered in the affirmative.
42
25. Hence, I pass the following:
ORDER
(i) The Civil Revision Petition is allowed;
(ii) The impugned order dated 21.12.2002 passed in M.A.No.22/1995 and the order dated 18.10.1976 passed in O.S.No.55/1975 are set aside and the miscellaneous petition is allowed;
(iii) Consequently, suit is restored to file.
SD/-
JUDGE YAN/CA