- 1 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100993 OF 2016 (DEC-) BETWEEN: SMT. RUDRAVVA W/O. NIJAGUNEPPA MADIWALAR, AGE: 61 YEARS, OCC: COOLIE, R/O: KUSUGAL VILLAGE, HUBBALLI TALUKA, DISTRICT DHARWAD NOW AT TADAKOD VILLAGE, TALUK/DISTRICT DHARWAD -580001. …APPELLANT (BY SRI. C. N. HARLAPUR AND SRI. S.S.TATTIMANI, ADVOCATES) AND: 1. STATE OF KARNATAKA, REP. BY DEPUTY COMMISSIONER, DHARWAD, DISTRICT: DHARWAD-580001. 2. THE DEPUTY COMMISSIONER, D.C.COMPOUND, DHARWAD-580001. 3. THE TASHILDAR, HUBBALLI TALUKA, MINI VIDHAN SOUDHA, HUBBALLI-580020. …RESPONDENTS (BY SMT. MALAL B. BHUTE, AGA) ---------- V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.12 15:49:43 +0530 - 2 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.115/2015 BY THE HON’BLE I ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI VIDE DATED 27.02.2016 AND TO SET ASIDE THE JUDGMENT AND DECREE PASSED O.S.NO.128/2015 BY THE HON’BLE II ADDITIONAL CIVIL JUDGE AND JMFC-III COURT, HUBBALLI VIDE DATED 07.08.2015, IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This Regular Second Appeal is filed by the plaintiff, challenging the judgment and decree dated 27.02.2016 passed in RA No.115 of 2015 on the file of the I Additional Senior Civil Judge, Hubballi, dismissing the appeal and confirming the judgment and decree dated 07.08.2015 passed in OS No.128 of 2015 on the file of II Additional Civil Judge and III JMFC, Hubballi, dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. - 3 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 3. The plaint averments are that, the plaintiff is the legally wedded wife of Nijaguneppa Basappa @ Basavanneppa Madiwalar and their marriage was solemnized on 22.02.1976 at Kusugal Village, and in their wedlock, no children were born. It is the grievance of the plaintiff that, her husband- Nijaguneppa Basappa left the house on 31.08.1999 to visit their relatives house, however, he did not returned back and as such, the plaintiff has lodged a complaint with the Hubballi Rural Police Station on 16.09.2014 and had taken paper publication in ‘Vijayavani Kannada Daily Newspaper’ on 01.10.2014. Hence, it is the case of the plaintiff that, husband of the plaintiff has not been traced out and as such, plaintiff has filed OS No.128 of 2015, seeking declaration that, her husband–Nijaguneppa Basappa is presumed to be dead. - 4 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. They also sought for dismissal of the suit. 5. On the basis of the rival pleadings, the Trial Court has formulated the issues for its consideration. 6. In order to establish the case, plaintiff has examined three witnesses as PW1 to PW3 and got marked 08 documents as Exs.P1 to P8. On the other hand, no evidence has been adduced on the part of the defendants. 7. The trial Court, after considering the material on record, by its judgment and decree dated 07.08.2015 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.115 of 2015 on the file of First - 5 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after re- appreciating the facts on record, by its judgment and decree dated 27.02.2016 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.128 of 2015. Being aggrieved by the same, the appellant/plaintiff has preferred this Regular Second Appeal under Section 100 of CPC. 8. This court vide order dated 19.04.2023 framed the following substantial question of law for its consideration. “Whether the courts below were justified in not following the mandate provision of Selection 108 of the Indian Evidence Act, where the burden is on the person to prove that the said person is unheard for 7 years and plaintiff having examined PW2 and PW3 who are the brothers of NIjaguneppa Basappa @ Basavaneppa Madiwalar ? - 6 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 9. I have heard Sri. C.N.Harlapur and Sri. S.S. Tattimani, learned counsel for the appellants and Smt. Mala B. Bhute, learned Additional Government Advocate appearing for the respondent-State. 10. Sri. C.N.Harlapur, learned counsel for the appellant submits that both the courts below have committed an error in not considering the evidence on record, wherein, PW3 who is elder brother of Nijaguneppa (husband of the plaintiff) deposed that, the said Nijaguneppa is missing from the year 1999. Accordingly, sought for interference of this Court. He also submitted that, in view of concurrent findings of fact, liberty be reserved to the plaintiff to file one more suit, seeking similar relief. 11. Per contra, Smt. Mala B. Bhute, learned Additional Government Advocate appearing for the respondent-State sought to justify the impugned - 7 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 judgment and decree passed by the courts below and accordingly, sought for dismissal of the appeal. 12. I have heard the learned counsel appearing for both the parties and perused the records. On careful examination of the finding recorded by both the courts below would goes to show that, though the plaintiff has stated that, her husband is missing from 31.08.1999, however, nothing is forthcoming from the evidence of the plaintiff or in the pleadings, till the lodging of the complaint at Hubballi Rural Police Station on 16.09.2014 as to missing of the husband and also to substantiate the said fact. The suit is filed in the year 2015 and therefore, both the courts below have rightly dismissed the claim made by the plaintiff. Hence, I do not find any merit in the appeal and substantial question of law framed above favours the defendants. However, taking into consideration the - 8 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 fact that the suit is of the year 2015 and the substantial question of law is framed on 19.04.2023 and in this regard, the ends of justice would be met by following the declaration of made by the Hon'ble Supreme Court in the case of Estralla Rubber vs. Dass Estate (Pt) Ltd., reported in 2001 8 SCC 97. Therefore, I find force in the arguments advanced by the learned counsel appearing for the appellant to grant liberty to the plaintiff to file fresh suit on same cause of action by taking into account the date of missing of Nijaguneppa Basappa @ Basavaneppa Madiwalar as 16.09.2014. Accordingly, I pass the following: ORDER i) The Regular Second Appeal is dismissed; ii) Judgment and decree dated 27.02.2016 passed in RA No.115 of 2015 on the file of the I Additional Senior Civil Judge, Hubballi, - 9 - NC: 2025:KHC-D:2643 RSA No. 100993 of 2016 dismissing the appeal and confirming the judgment and decree dated 07.08.2015 passed in OS No.128 of 2015 on the file of II Additional Civil Judge and III JMFC, Hubballi, is hereby confirmed. iii) Liberty is reserved to the appellant/plaintiff to file fresh suit on the same cause of action, as stated above. Sd/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 26