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2025 DAILYLAW 12047 (KAR)

IQBAL v. ZARABI AND ORS

WP/200378/2024 · 2025-02-28

R Nataraj

body2025

Judgment text

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- 1 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.200378 OF 2024 (GM-CPC) BETWEEN: IQBAL S/O ABDUL AZIZ MOMIN, AGE. 39 YEARS, OCC. COOLIE, RESIDENCE OF MOMIN GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA. …PETITIONER (BY SRI. SANGANABASAVA B. PATIL, ADVOCATE) AND: 1. ZARABI W/O LADLESAB MYAGERI, AGE. 75 YEARS, OCC. HOUSEHOLD WORK, RESIDENCE OF HAMEED NAGAR, NAUBAG, VIJAYAPURA-586101. 2. MARIYAMBI W/O DASTAGIRSAB MALAGI, AGE. 85 YEARS,OCC. HOUSEHOLD WORK, RESIDENCE OF NEW NAGPADA ROAD, POLICE COMMISSIONER, C/O O/B NALAGI, GOVINDJI BUILDING, MUMBAI-08. 2A) SALEEM S/O DASAGIRSAB MALAGI, AGE. 45 YEARS, OCC. SERVICE, RESIDENCE OF NEW NAGPADA ROAD, RETIRED POLICE COMMISSIONER, Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 C/O D.B. MALAGI, A/6 2ND FLOOR, GOVINDJI BUILDING, MUMBAI-08. 2B) MUBARAQ S/O DASAGIRSAB MALAGI, AGE. 43 YEARS, OCC. SERVICE, RESIDENCE OF NEW NAGPADA ROAD, RETIRED POLICE COMMISSIONER, C/O D.B. MALAGI, A/6 2ND FLOOR, GOVINDJI BUILDING, MUMBAI-08. 2C) BURAN S/O DASAGIRSAB MALAGI, AGE. 42 YEARS, OCC. SERVICE, RESIDENCE OF NEW NAGAPADA ROAD, RETIRED POLICE COMMISSIONER, C/O. D.B. MALAGI A/6, 2ND FLOOR, GOVINDJI BUILDING, MUMBAI-08. 2D) NAZMA W/O SHAFIQ INDIKAR, AGE. 40 YEARS, OCC. HOUSE HOLD WORK, R/O C/O SHAFIQ INDIKAR, ATTAWALA CHOWK,NEAR ASTAPAILA BANGLOW, VIJAYAPURA-586101. 3. KHATUNBI W/O BASHYASAB NALABAND, AGE. 83 YEARS, OCC. HOUSEHOLD WORK, RESIDENCE OF DANDA DADDI NEAR AMBABHAVANI TEMPLE, TALIKOTI, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 4. ABDUL KAREEM S/O ABDUL VAHAB MOMIN DIED HIS LRS., 4A) KAMRUDDIN S/O ABDUL KAREEM MOMIN, AGE. 52 YEARS, OCC. OIL TRADER, - 3 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 4B) JULEKA W/O NABILAL IRKAL, AGE. 60 YEARS, OCC. HOUSEHOLD WORK, 4C) RIJAWANA W/O ABDUL KAREEM MOMIN, AGE. 49 YEARS, OCC. HOUSEHOLD WORK, 4D) HAMIDA W/O ABDUL KAREEM MOMIN, AGE. 75 YEARS, OCC. HOUSEHOLD WORK, ALL ARE RESIDENCE OF MOMIN GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 5. AMMERHAMJA S/O ABDUL VAHAB MOMIN, AGE. 65 YEARS, OCC. RETIRED VILLAGE ACCOUNTANT, RESIDENCE OF BAHAR PETH GALLI, EIGHT GADAGADI BAWADI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 6. ABDUL AZIZ S/O ABDUL VAHAB MOMIN, SINCE DEAD BY HIS LRS 6A) ABDUL HAMEED S/O ABDUL AZIZ MOMIN, AGE. 34 YEARS, OCC. COOLIE, RESIDENCE OF MOMIN GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 6B) SARIFA W/O MUNNA GADIWALE, AGE. 32 YEARS, OCC. HOUSE HOLD WORK, RESIDENCE OF PILEKAMMA NAGAR, TANGADAGI ROAD, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 6C) RAFIQ S/O ABDUL AZIZ MOMIN, - 4 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 AGE. 30 YEARS, OCC. COOLIE, RESIDENCE OF MOMIN GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 6D) RESHMA D/O ABDUL AZIZ MOMIN, AGE. 28 YEARS, OCC. HOUSEHOLD WORK, RESIDENCE OF MOMIN GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 6E) ZAIRABI W/O ABDUL AZIZ MOMIN, AGE. 60 YEARS, OCC. HOUSE HOLD WORK, RESIDENCE OF MOMIN GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 7. ABDUL KHADAR ZILANI S/O ABDUL VAHAB MOMIN (DEAD BY HIS LRS), 7 A) ISMAIL S/O ABDUL KHADAR ZILANI MOMIN, AGE. 28 YEARS, OCC. PVT. SERVICE, RESIDENCE OF BAHARAPETH GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 7 B) BASHER S/O ABDUL KHADAR ZILANI MOMIN, AGE. 26 YEARS, OCC. PVT. SERVICE, RESIDENCE OF BAHARAPETH GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 7C) NAZABEEN D/O ABDUL KHADAR ZILANI MOMIN, AGE. 24 YEARS, OCC. HOUSE HOLD WORK, RESIDENCE OF BAHARAPETH GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. - 5 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 7D) ZUBEDA W/O ABDUL KHADAR ZILANI MOMIN, AGE. 55 YEARS, OCC. HOUSEHOLD WORK, RESIDENCE OF NEAR YAMANURAPPANA KATTI, BAHAR PETH GALLI, MUDDEBIHAL, TALUKA MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 8. MAMTAJABEGUM W/O IBRAHIM SAYYED, (DEAD BY HER LRS), 8A) IBRAHIM SAYYAD AHEMAD SAYYAD, AGE. 60 YEARS, OCC. BUSINESS, RESIDENCE OF JAMAKANE GALLI, BANDENAWAZ KATTA, MINAKSHI CHOUKM VIJAYAPURA-586101. 8B) ABUBAKAR S/O IBRAHIM SAYYAD, AGE. 31 YEARS, OCC. BUSINESS, RESIDENCE OF JAMAKANE GALLI, BANDENAWAZ KATTA, MINAKSHI CHOUKM, VIJAYAPURA-586101. 8C) HABBA W/O KAMARUDDIN MOMIN, AGE. 27 YEARS, OCC. HOUSE HOLD WORK, RESIDENCE OF C/O ABDUL KARIMSAB S/O ABDUL VAHAB MOMIN, MOMIN GALLI, MUDDEBIHAL, DISTRICT VIJAYAPURA-586101. 9. MOHAMMAD USUF S/O ABDUL VAHAB MOMIN, (SINCE DECEASED BY HIS LRS) A) IBRAHIM @ BABU S/O MOHAMMAD USUF MOMIN, AGE. 38 YEARS, OCC. DRIVER, RESIDENCE OF NISSAR MADDI, - 6 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 NEAR ALLIKROZA KHADI BHANDAR, VIJAYAPURA-586101. B) ABDUL RAZAK S/O MOHAMMAD USUF MOMIN, AGE. 34 YEARS, OCC. SERVICE IN CMC VIJAYAPURA, RESIDENCE OF NISSAR MADDI, NEAR ALLIKROZA KHADI BANDAR, VIJAYAPURA-586101. C) JAMELABI D/O MOHAMMAD USUF MOMIN, AGE. 32 YEARS, OCC. HOUSE HOLD WORK, RESIDENCE OF NISSAR MADDI, NEAR ALLIKROZA, KHADI BANDAR, VIJAYAPURA-586101. D) SARABI W/O MOHAMMAD USUF MOMIN, AGE. 76 YEARS, OCC. HOUSE HOLD WORK, RESIDENCE OF NISSAR MADDI, NEAR ALLIKROZA, KHADI BANDAR, VIJAYAPURA-586101. …RESPONDENTS (BY V/O DATED 25.11.2025 SERVICE OF NOTICE TO R2 (A TO D), R3, R4 (A TO D), R5, R6(A TO E), R7, (A TO D), R8 (A TO C), R9 (A TO D) ARE DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER 09.10.2023 PASSED BY THE HONOURABLE SENIOR CIVIL JUDGE AND JMFC MUDDEBIHAL, IN OS NO. 6/2011 I.A NO. 23 AND 24 VIDE ANNEXURE-E TO THE WRIT PETITION AND ALLOW THE MEMO DATED 05.09.2023 VIDE ANNEXURE-C SERIES AND ALSO SAID APPLICATION (I.A NO. 23 AND 24) THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R.NATARAJ - 7 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 ORAL ORDER The defendant No.5(E) in O.S No.6/2011 on the file of Senior Civil Judge and JMFC, Muddebihal, has filed this writ petition challenging an order dated 09.10.2023, by which a memo filed by him to adopt the written statement filed by defendant No.3 was rejected. 2. The suit in O.S No.6/2011 was filed for partition and separate possession of the plaintiff’s share in the suit schedule property. The plaintiff claimed to be a joint owner along with the defendants and claimed that her share was not handed over to her. The suit was contested by the defendant Nos.3 and 4. Based on the contentions urged, the suit was set down for trial and after the parties adduced evidence, the suit was set down for arguments. At that stage, the defendant No.5(E) filed a memo to adopt the written statement filed by the defendant No.3. The said memo was rejected by the Trial Court in terms of the impugned order on the ground that the defendant Nos.5(A) to 5(E) though represented by a counsel did not file any written statement even after sufficient opportunities were granted. It held that, therefore the defendant No.5(E) cannot be permitted to file a - 8 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 written statement after 12 years. Being aggrieved by the said order the defendant No.5(E) is before this Court. 3. The defendant No.5(E) contends that the written statement of defendant No.3 was already on record and the defendant No.5(E) had adopted it and therefore, no prejudice would be caused to the plaintiff, if the memo was accepted. 4. I have considered submissions of the learned counsel for defendant No.5(E) 5. It appears that the defendant Nos.5(A) to 5(E) had entered appearance through their advocate in the year 2014 itself but did not take any steps to file the written statement. They allowed the case to proceed to the stage of final arguments and at that stage, they filed a memo to adopt the written statement filed by the defendant No.3. The Trial Court was therefore in away justified in not allowing the defendant No.5(E) to adopt the written statement filed by the defendant No.3, as the same was done after nearly 10 years. Since the defendant No.5(E) had adopted the written statement of the defendant No.3 and the suit was contested by the defendant No.3, the interest of the defendant No.5 was sufficiently taken - 9 - NC: 2025:KHC-K:1379 WP No. 200378 of 2024 care of and therefore there was no need for the defendant No.5(E) to file a memo adopting the written statement filed by the defendant No.3. Hence, the Trial Court was justified in not entertaining the request of the defendant No.5. 6. Hence, this writ petition lack merits and is dismissed. Sd/- (R.NATARAJ) JUDGE THM LIST NO.: 1 SL NO.: 14 CT:SI