Karnataka High Court
Ratnavva W/O Nagayya Hiremath @ Mathad vs Girijavva D/O Shanmukhayya ... on 4 August, 2016
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF AUGUST, 2016
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
M.F.A No. 102573 OF 2014 (CPC)
BETWEEN:
1. RATNAVVA
W/O NAGAYYA HIREMATH @ MATHAD
AGE: 35 YEARS,OCC: HOUSEHOLD,
R/O. SHYADAGUPPI,
TQ: HANGAL, HAVERI
2. GIRIJAMMA
D/O NAGAYYA HIREMATH @ MATHAD
AGE: 17 YEARS,
OCC: STUDENT,
R/O. SHYADAGUPPI,
TQ: HANGAL, HAVERI
APPELLANT NO. 2 IS MINOR
REP. BY APPELLANT NO.1 NATURAL MOTHER
3. ASHWINI D/O NAGAYYA HIREMATH @ MATHAD
AGE: 15 YEARS, OCC: STUDENT
R/O. SHYADAGUPPI,
TQ: HANGAL, HAVERI
APPELLANT NO. 3 IS MINOR
REP. BY APPELLANT NO.1 NATURAL MOTHER
4. VISHAL S/O NAGAYYA HIREMATH @ MATHAD
AGE: 17 YEARS, OCC: HOUSEHOLD,
R/O. SHYADAGUPPI,
TQ: HANGAL, HAVERI
APPELLANT NO. 4 IS MINOR
REP. BY APPELLANT NO.1 NATURAL MOTHER
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5. KUMARSWAMI
S/O VEERABHADRAYYA MATHAD
AGE:46 YEARS,
OCC: AGRICULTURE,
R/O: SHYADAGUPPI
TQ: HANGAL, HAVERI
6. PARAMESHAYYA
S/O VEERABHADRAYYA MATHAD
AGE: 41 YEARS,
OCC: AGRICULTURE,
R/O: SHYADAGUPPI
TQ: HANGAL, HAVERI
7. SIVAMURTHAYYA
S/O VEERABHADRAYYA MATHAD
AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O: SHYADAGUPPI
TQ: HANGAL, HAVERI
8. JAYASHEELA
W/O CHANNABASAYYA HIREMATH
AGE: 36 YEARS,
OCC: GRICULTURE,
R/O: SHYADAGUPPI
TQ: HANGAL, HAVERI
9. LALITAMMA W/O SHIVANAYYA CHIKKAMATH
AGE: 31 YEARS,
OCC: AGRICULTURE,
R/O: SHYADAGUPPI
TQ: HANGAL, HAVERI
10. SULOCHANA W/O RACHAYYA HIREMATH
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O. KARADAGI,
TQ: SAVANUR, DIST: HAVERI
... APPELLANTS
(By Sri. DINESH M KULKARNI, ADV.)
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AND
1. GIRIJAVVA
D/O SHANMUKHAYYA BHIKSHAVATHIMATH
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O. AKKI-ALUR,
TQ: HANGAL, DIST: HAVERI
2. KUMARSWAMY S/O SHANMUKHAYYA
BHIKSHAVATHIMATA
AGE:57 YEARS,
OCC: AGRICULTURE,
R/O AKKI ALUR,
TQ: HANGAL DIST: HAVERI
... RESPONDENTS
(By R-1 AND R-2 ARE SERVED)
THIS MFA IS FILED U/O 43 RULE -1(t) OF CPC
AGAINST THE JUDGMENT AND ORDER DATED 27.8.2014
PASSED IN CIVIL MISC.NO.12/2013 ON THE FILE OF THE
SENIOR CIVIL JUDGE, HANGAL, DISMISSING THE
PETITION FILED U/O 41 RULE 19 AND R/W SEC. 151 OF
CPC.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the filed by the appellants challenging the Judgment and order passed by the Sr.Civil Judge, Hanagal, in Cvl. Misc.12/2013.
2. For the sake of convenience the parties are referred to as per their rank in the Court below.
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3. Briefly stated the facts are, the petitioners have filed appeal in R.A.No. 17/2009 challenging the order dated 6.1.2009 passed in FDP No.02/2002 along with an application under Section 5 of the Limitation Act seeking for condonation of delay in filing the appeal. Respondent No.1 in the proceedings before the lower Appellate Court died on 13.5.2012, thereby the lower Appellate Court permitted the petitioners to bring the legal representatives of the deceased on record. Despite the orders passed by the lower Appellate Court, the petitioners not having amended the cause title, the appeal came to be dismissed on 15.03.2013 for non- amendment of cause title against which the petitioners preferred Civil Misc. 12/2013 for restoration of appeal, which came to be dismissed by order dated 27.8.2014. Being aggrieved by the said order passed by the lower Appellate Court in Civil Misc.Petition, the petitioners are before this Court in appeal.
4. The learned counsel Sri.Dinesh M.Kulkarni, appearing for the appellants would contend that the 5 petitioners and their counsel were not intentionally absent before the Court on 15.3.2013, a plausible explanation was offered that it was due to the inconvenience caused in commuting from Shyadaguppi, the petitioners could not appear before the court on that day though their counsel had requested them to be present before Court as he was otherwise engaged in some other case at Ranebennur Court. It is further submitted that on the previous date, the Presiding Officer was on leave and whence the matter was adjourned, the order of the Court to amend the cause title was thus not complied. Only on this technical reason, the lower Appellate Court dismissing the appeal was untenable. It is further submitted that in the Civil Misc. Petition filed by the petitioners valid reasons for their non-appearance and also non-representation by the advocate was made, the lower Appellate Court not properly appreciating the material on record dismissed the petition. Thus, the learned counsel seeks to set-aside the impugned order and restore R.A. No.17/2009 which was dismissed for non-prosecution before the lower Appellate Court.
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5. Though respondents are served, they remained absent.
6. Having heard the learned counsel appearing for the appellant and perusing the material on record, it is discerned that this case has a chequered history, the original dispute relates to O.S.No.86/1986 agitated upto this court in R.S.A. No.1044/1995. O.S.86/1986, R.A. 49/1995 and RSA 1044/1995 were decided on 5.6.1992, 21.8.1995 and 5.1.1999, respectively, thereafter the respondent filed FDP 02/2002 which was decided on 7.11.2009. Subsequently E.P.No.47/2010 was filed for half share of the suit property and it was finally decided, possession of the property was given through Court and execution case was finally disposed on 30.11.2013. Again one more round of litigation was initiated by the petitioners filing R.A. 17/2009 challenging the order passed in FDP No.02/2002. The sequence of events as narrated would indicate the litigation between the parties which is persisting for nearly three decades. The respondent Nos.1, 1(a) to (c) died on 13.5.2012, 5.7.2012, 7 25.10.2013 and 5.5.2013, respectively. The petitioners though obtained an order to bring the legal representatives of the deceased respondent No.1 on record failed to comply with the order passed by the Court. Further, no legal representatives of respondent No.1(a) to (c) were brought on record.
7. It is evident from the records that in order to prove the case, petitioner No.5 was examined as PW-1 and got marked certified copy of the order sheet in R.A. 17/2009 as per Ex.P1. The lower Appellate Court has recorded that PW- 1 was oblivious of the pending litigations between the father of PW-1 and the respondent No.1. Considering the material evidence placed on record by the parties, the Court below dismissed the petition as no sufficient cause was shown by the petitioners for not being present before the Court on 15.3.2013 and not carrying out the amendment. The factual matrices of the case indicates that the legal representatives of the original respondent are in possession of half share of the suit property of O.S.No.86/1986. The conduct of the petitioners establishes that they are not allowing the 8 respondents to enjoy the fruits of the decree peacefully. To put a quietus to the litigation between the parties, the Court below appreciating the evidence on record, dismissed the petition, which cannot be found fault with. There is no infirmity or irregularity found in the impugned Judgment and order.
Thus, the appeal stands dismissed.
Sd/-
JUDGE ln.