IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.43002/2017(GM-CPC) BETWEEN:
SMT. NARAYANAMMA D/O. LATE HANUMANTHAPPA, AGED ABOUT 48 YEARS, NO.3/7, 7TH CROSS, LAKSHMI ROAD, SHANTHINAGAR, BANGALORE-560 027.
... PETITIONER (BY SRI JOSE SEBASTIAN, ADVOCATE) AND:
1. SMT. RATNAMMA D/O. LATE HANUMANTHAPPA, AGED ABOUT 61 YEARS, R/AT GEDDALAHALLI VILLAGE, K.R. PURAM HOBLI, BANGALORE EAST TALUK-560036.
2. SMT. CHENNAMMA W/O.LATE HANUMANTHAPPA, AGED ABOUT 81 YEARS, R/AT KADA AGRAHARA VILLAGE, DODDAGUBBI POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK-560036.
3. SMT.RATHNAMMA W/O.LATE HANUMANTHAPPA, AGED ABOUT 61 YEARS, R/AT KADA AGRAHARA VILLAGE, DODDAGUBBI POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK-560036.
4. SMT.LAKSHMAMMA D/O.LATE HANUMANTHAPPA, AGED ABOUT 51 YEARS, R/AT KADA AGRAHARA VILLAGE, DODDAGUBBI POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK-560036.
5. SMT. UMA W/O. GUNABUSHANA, AGED ABOUT 56 YEARS, R/AT NO. 1615, AECS LAYOUT, KUNDALAHALLI, BANGALORE-560 037.
... RESPONDENTS (BY SRI V. KRISHNA MURTHY, ADVOCATE FOR R1; SRI M.R. VIJAYA RAGHAVAN, ADVOCATE FOR R5;
NOTICE TO R2 TO R4 IS DISPENSED WITH VIDE ORDER DATED 22.02.2018) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED ON I.A.11 DATED 11.7.2017 IN O.S.1374/2006 ON THE FILE OF THE PRL. CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE UNDER THE ORIGINAL OF ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant No.4 filed the present writ petition against the Order dated 11.07.2017 made in O.S.No. 1374/2006 dismissing I.A.No.11 filed by the 4th defendant under Order IX Rule 7 of Code of Civil Procedure.
2. The first respondent herein who is the plaintiff, filed suit for partition and separate possession of suit schedule properties contending that the plaintiff and defendant Nos.1 to 4 are the members of the joint family and the suit schedule properties are the joint family properties and she is entitled to share. The defendant Nos.1 to 3 filed written statement and supported the case of the plaintiff. The fifth defendant who is the bonafide purchaser, filed written statement, denied the plaint averments and contended that the suit is not maintainable. When the matter was posted for arguments, at that stage, the fourth defendant filed an application to set-aside the Order dated 31.07.2012 placing her ex-parte, contending that she is resident of No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27, since from the date of her marriage. Instead of furnishing the said address, the plaintiff has given wrong address i.e., Ekarajipura village, Solibele Hobli, Hosakote Taluk, Bengaluru Rural District. None of the parties to the suit informed her about the proceedings. Recently she came to know about the pendency of the proceedings from her close relatives, when she visited the village. After collecting information, she made arrangements to file an application. The order sheet reveals that paper publication was also taken to the village address. Since the summons was not served, she was placed ex-parte. Therefore, the petitioner/4th defendant sought to allow the application. The said application was opposed by the fifth defendant alone, contending that the defendant Nos.1 to 3 are the sisters of 4th defendant and is well aware of the proceedings and has filed the application at belated stage. Therefore, sought dismiss the application.
3. The Trial Court, proceeded to dismiss the application mainly on the ground that, since the defendant Nos.1 to 4 are the children of deceased Hanumanthappa, it is highly improbable to believe that the plaintiff and defendant No.1 are contesting the matter without the knowledge of the fourth defendant. The fourth defendant, except contending that she has been residing at No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27, has placed no material on record along with the application. Therefore, it can be presumed that as on the date of filing of the suit, the fourth defendant was residing at the address mentioned in the cause title and it is not the case of the fourth defendant that she is not in talking terms with her sister and there is any strained relationship between the sisters”. Therefore, application came to be dismissed. Hence the present writ petition is filed.
4. During pendency of the writ petition, petitioner has filed I.A.No.2/2018 under Section 151 of Code of Civil Procedure r/w Article 227 of the Constitution of India seeking permission to file additional documents to show that she is resident of No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27. The same is placed on record.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Jose Sebastian, learned counsel for the petitioner contended that the impugned order passed by the Trial Court dismissing the application only on the basis of assumption and presumption, cannot be sustained. It is the duty of the plaintiff to furnish correct address of the parties on the date of filing of the suit. Knowingfully well that after the marriage, the petitioner is residing at No.7/3, 7th Cross, Lakxhmi Road, Shanthinagar, Bengaluru-27, the plaintiff has furnished wrong address in the plaint. Therefore, the notice was not served on the petitioner. The paper publication is also taken to the address shown in the cause title to the plaint. Since petitioner was residing at Bengaluru, she was not aware of these proceedings. The same has not been considered by the Trial Court. The petitioner has made out sufficient cause for non appearance when the suit was called on for hearing on which date the petitioner was placed ex-parte. Therefore, he sought to allow the writ petition.
7. Per contra, learned counsel for the fifth defendant sought to justify the impugned order and contended that knowingfully well, the petitioner has dragged the matter, when the matter was posted for arguments, filed the present application. No documents are produced to prove that the petitioner is resident of Bengaluru. Therefore, the Trial Court was justified in dismissing the application. He also contended that the suit is of the year 2006 and we are in 2019. The petitioner has filed the application at the fag end of the suit at a belated stage and therefore, sought to dismiss the petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit for partition and separate possession in respect of the suit schedule properties contending that the plaintiff and defendant Nos.1 to 4 are the members of the joint family, there was no partition. Only the fifth defendant filed written statement contesting that the suit. The other defendants virtually supported the case of the plaintiff. Since the fourth defendant was not represented inspite of service, was placed ex-parte. It is the specific case of the petitioner in the application filed under Order IX Rule 7 of Code of Civil Procedure that she was all along residing at No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27, since the date of her marriage. The plaintiff instead of serving notice on the said address, has furnished wrong address deliberately and as such, she was placed ex-parte.
9. The Trial Court, believed the plaintiff’s statement and placed the petitioner, ex-parte. The documents produced before this Court along with the application i.e., the Vijaya Bank pass book extract from the year 1984, The Corporation bank pass book extract from 06.01.1995, the identity card issued by the Election Commission of India dated 26.07.2002, the ration card and aadhar card would clearly depict that the petitioner is resident of No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27.
10. Order IX Rule 7 of Code of Civil Procedure clearly depicts that, ‘Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance’.
11. Admittedly, in the present case, as can be seen from the cause title to the plaint, the address of the fourth defendant is furnished as Ekarajipura village, Solibele Hobli, Hosakote Taluk, Bengaluru Rural District. The address of defendant Nos.1 and 2 is also shown to be the same address. The paper publication is also taken to the said address. The affidavit filed by the fourth defendant to set-aside the order placing her ex- parte, clearly depicts that she is resident of No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27.
12. The suit is for partition of joint family properties.
In a partition suit, all the parties become plaintiffs. The Trial Court ought to have given an opportunity to the fourth defendant, instead of dismissing the application on technicality. Because of the mistake committed by the plaintiff or his counsel, the other party should not suffer. Ultimately, substantial justice should be done to the parties on merits not on technicality. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
13. Admittedly in the present case, the petitioner- fourth defendant was kept in dark about the proceedings. The address of the fourth defendant furnished by the plaintiff in the plaint is entirely different from her actual address which is supported by documents. Therefore, the impugned order cannot be sustained.
14. For the reasons stated above, writ petition is allowed. The impugned Order dated 11.07.2017 made in O.S.No.1374/2006 dismissing I.A.No.11 filed by the 4th defendant/petitioner herein under Order IX Rule 7 of Code of Civil Procedure is hereby set-aside. The petitioner-fourth defendant is permitted to file written statement within fifteen days from the date of receipt of copy of this Order. Therefore, the Trial Court is directed to proceed with the matter, in accordance with law.
Sd/- JUDGE kcm