Petitioner, defendant No.1 in a partition suit decreed ex-parte, sought to set it aside under Order IX Rule 13 read with Section 151 CPC citing illness and mistake of counsel. Trial and appellate courts dismissed the application. The High Court found no bona fides and dismissed the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 23722 OF 2017 (GM-CPC)
BETWEEN:
SRI THIMMAPPA @ A.K. THIMMAPPA S/O KARIYAPPA AGED 75 YEARS AGRICULTURIST R/O DODDALAGATTA VILLAGE, CHITRADURGA DISTRICT-577501.
…PETITIONER
(BY SRI. DINESH RAO N., ADVOCATE)
AND:
Digitally signed by MARKONAHALL I RAMU PRIYA Location: HIGH COURT OF KARNATAKA
RESPONDENT NO.1 TO 4 ARE R/O DODDALAGATTA VILLAGE,
CHITRADURGA DISTRICT - 577501
DURUGAPPA
S/O NAGAPPA SINCE DECEASED BY LRS
…RESPONDENTS
(NOTICE SERVED ON RESPONDENT NO.1;
V/O DATED 09.02.2024 PETITION IS DISMISSED AGAINST RESPONDENT NOS.2 TO 7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DISMISSAL OF ORDER 43 RULE 1 OF CPC DATED 12.04.2017 PASSED IN M.A.NO.15/2016 BY THE HON'BLE 1ST ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA VIDE ANNEXURE-J AND CONSEQUENTLY THE IMPUGNED ORDER PASSED IN MIS.NO.19/2014 DATED
01.10.2016 PASSED BY THE 1ST ADDL. SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA VIDE ANNEXURE-G BY ALLOWING THE PETITION FILED UNDER ORDER 9 RULE 13 READ WITH 151 OF CPC VIDE ANNEXURE-D.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed aggrieved by the order dated 01.10.2016 passed in Misc.No.19/2014 on the file of the I Additional Senior Civil Judge, Chitradurga.
NC: 2024:KHC:26449 WP No. 23722 of 2017
got marked some documents. The plaintiff was not crossexamined by the petitioner herein because he was suffering from Asthma. He had been to N.R. Pura for treatment and necessary application filed seeking permission to cross-examine PW.1 was not allowed. In the meantime, the petitioner was trying to settle the matter amicably and finally, the Trial Court had passed ex-parte judgment and decree on 01.07.2014. The petitioner is innocent and hence, prayed to allow Misc.No.19/2014. The said petition was opposed by the plaintiff. The Court below had dismissed the same by order dated 01.10.2016, wherein the Court below has observed that the petitioner has appeared before the Trial Court and the Trial Court has recorded the defendant's evidence as 'nil' and thereafter, pronounced the judgment. The Court below observed that sufficient opportunity was given to the petitioner herein/defendant No.1 to lead evidence with regard to his medical condition.
NC: 2024:KHC:26449 WP No. 23722 of 2017
the Court below had observed that no reasons are stated and no documents are marked to show that why the defendant No.1/petitioner herein was absent and inspite of giving an opportunity, why he has not lead any evidence.
NC: 2024:KHC:26449 WP No. 23722 of 2017
the relationship between the parties and non-production of the document regarding medical condition of the petitioner herein, passed the impugned order.
NC: 2024:KHC:26449 WP No. 23722 of 2017
Accordingly, the petition is dismissed .
Pending IA’s, if any in this writ petition shall stand closed.
Sd/JUDGE
PMR List No.: 1 Sl No.: 10
1 issue framed by the court
Whether the ex-parte judgment and decree in a partition suit should be set aside under Order IX Rule 13 CPC for want of proper cause of absence.
1 provisions across 1 enactments
Sri Thimmappa @ A.K. Thimmappa
Sri Basappa
Smt Jayamma
Sri Govindappa
Sri Nagarajappa
Durugappa (since deceased by LRS)
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
