- 1 - HC-KAR NC: 2025:KHC-D:12634 WP No. 101481 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 18TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 101481 OF 2022 (GM-CPC) BETWEEN: SRI. NAGAPPA S/O. SHANKRAPPA GADDAD @ BANAKAR, AGE: 68 YEARS, OCC: AGRICULTURE, R/O. LAKAMAJIKOPPA, TQ. BYADGI, DIST. HAVERI-581106. …PETITIONER (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE) AND: 1. SMT. SHARADA W/O. VENKANAGOUDA PATIL, AGE: 63 YEARS, OCC: HOME MAKER, R/O. KABANUR TQ. SHIGGAVI, DIST. HAVERI-581106. 2. SMT. SHIVALEELA W/O. CHANNABASAPPA KURABAGOND, AGE: 51 YEARS, OCC: HOME MAKER, R/O. KARJGI, TQ. DIST. HAVERI-581106. 3. SRI. SHIVANANDAPPA S/O. SHANKRAPPA GADDAD @ BANAKAR, AGE: 65 YEARS OCC: AGRICULTURE, R/O. LAKAMAJIKOPPA, TQ. BYADGI, DIST. HAVERI-581106. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:12634 WP No. 101481 of 2022 4. SRI. MAHESHAPPA S/O. BASAVANNEPPA BENAKANNANAVAR, AGE: 58 YEARS, OCC: TEACHER IN HIGH SCHOOL, R/O. KUDAPALI, TQ. HIREKERURU, DIST. HAVERI-581106. 5. SMT. REKHA @ SAROJA W/O. SURESH KUDKER, AGE: 50 YEARS, OCC: HOME MAKER, R/O. BYADAGI, TQ. BYADAGI, DIST. HAVERI-581106. …RESPONDENTS (BY SRI. GURURAJ R. TURAMARI, ADV. FOR R4; SRI. NAGARAJ J. APPANNANAVAR, ADV. FOR R5; NOTICE TO R1 TO R3 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION QUASHING THE COMMON ORDER DT. 6.8.2021 ON I.A.NO.13 AND 14 IN O.S.NO.42/2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND J.M.F.C, BYADGI, PRODUCED AS ANNEXURE H, AND ALLOW THE APPLICATIONS I.A.NO.13 AND 14 AS PRAYED FOR, VIDE ANNEXURE-D AND E RESPECTIVELY AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:12634 WP No. 101481 of 2022 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking for the following reliefs: “A. A writ in the nature of certiorari or any other writ or order or direction quashing the common order dt. 6.8.2021 on I.A.No.13 and 14 in O.S.No.42/2017 passed by the learned Senior Civil Judge and J.M.F.C, Byadgi, produced as Annexure H, and allow the applications I.A.No.13 and 14 as prayed for, vide Annexure D, and E respectively. B. Such other writ or order or direction as deemed fit under the facts and circumstances of the case including an order for cost may kindly be passed.” 2. Sri.Hanumanthareddy Sahukar, learned counsel appearing for the petitioner submits that the petitioner's sister filed a suit for partition and separate possession and in the said suit, the petitioner was arrayed as defendant No.2 and defendants No.4 and 5 are claimed to be the purchasers of the suit schedule property. It is further submitted that the petitioner was placed exparte by the trial Court and proceeded with the matter. Thereafter, the petitioner filed applications in I.A. Nos. 13 and 14 to recall the order of placing the petitioner exparte and further prayer to permit him to file a written statement. - 4 - HC-KAR NC: 2025:KHC-D:12634 WP No. 101481 of 2022 However, the same came to be rejected solely on the ground that, no sufficient cause is shown for the delay. It is submitted that, the suit is for partition and separate possession and the petitioner is one of the coparceners of the family and is required to defend the suit effectively against the alleged purchasers and the right to defend the suit is his substantive right and the same cannot be denied only on the ground that there is a delay in filing the applications. It is also submitted that the petitioner was suffering from an ailment and was residing in Bangalore at a relevant point of time and due to said reason, he could not appear in the suit and defend the proceedings. Hence, he seeks to allow the petition by permitting the petitioner to participate in the suit. It is also submitted that the written statement was also filed along with the applications. 3. Per contra, Sri.Gururaj R.Turamari and Sri.Nagaraj J.Appannanavar, learned counsel appearing for respondents No.4 and 5 respectively support the impugned order of the trial Court and submit that the petitioner was placed exparte in the year 2017 and the applications came to be filed belatedly, which is more than two years and three months and taking note of the - 5 - HC-KAR NC: 2025:KHC-D:12634 WP No. 101481 of 2022 same, the trial Court has rightly rejected the applications, which does not call for any interference. Hence, they seek to dismiss the petition. 4. I have heard the arguments of the learned counsel appearing for the petitioner, learned counsel appearing for respondents No.4 and 5 and meticulously perused the material available on record. 5. Smt.Sharadha Patil-respondent No.1 who is the sister of the petitioner filed a suit in O.S. No.42/2017 for relief of partition and separate possession. In the said suit, the petitioner has been arrayed as defendant No.2. The notice of the proceedings was served but the petitioner remained absent. Hence, the petitioner was placed exparte on 08.12.2017. The records indicate that the petitioner filed an application on 18.03.2020 under Order IX Rule 7 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’, for short) seeking prayer to set aside exparte order passed against the petitioner and permit the petitioner to contest the suit. Further, an application is filed under Section 151 of CPC seeking permission to file the written statement. The said applications came to be rejected by - 6 - HC-KAR NC: 2025:KHC-D:12634 WP No. 101481 of 2022 the trial Court under the impugned order. The affidavits accompanying the said applications indicate that the petitioner and his mother/defendant No.1 (now deceased) stated to have been suffering from an ailment and were residing at Bangalore and for the said reason, they could not appear in the suit and defend the proceedings. It is to be noticed that the suit is for partition and separate possession and the plaintiff has also admitted that the petitioner is the coparcener of the family. Taking note of the explanation offered in the affidavits, accompanying the applications and considering the nature of the suit, I am of the considered view that the interest of justice would be met if the petitioner is permitted to defend the suit by filing his written statement and adducing the evidence. It is also noticed that the petitioner has already filed a written statement along with applications. Taking note of the same, I am of the view that the writ petition deserves to be allowed on terms, as the application for seeking setting aside the exparte order was filed after a delay of two years three months. Hence, I proceed to pass the following: - 7 - HC-KAR NC: 2025:KHC-D:12634 WP No. 101481 of 2022 ORDER (i) The writ petition is allowed. (ii) The impugned common order dated 06.08.2021 passed on I.A. Nos. 13 and 14 is set aside. Consequently, I.A. Nos.13 and 14 filed by the petitioner/defendant No.2 in O.S. No.42/2017 are allowed. (iii) Order dated 08.12.2017 of the trial Court is set-aside. (iv) The trial Court is directed to accept the written statement filed by the petitioner/defendant No.2 and proceed in the matter, in accordance with law, subject to the petitioner/defendant No.2 paying costs of Rs.5,000/- (Rupees Five Thousand only) to defendant No.5. Sd/- (VIJAYKUMAR A.PATIL) JUDGE RH /CT-AN List No.: 1 Sl No.: 11