IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.26818/2019 & WRIT PETITION NO.27588/2019 (GM-CPC) BETWEEN SRI GANESH S/O LATE MUNIYAPPA AGED ABOUT 31 YEARS R/AT GAJJIGANAHALLI VILLAGE KASABA HOBLI SIDLAGATTA TALUK CHIKKABALLAPUR DISTRICT-562 105 ... PETITIONER (BY SRI VIJAYA KUMAR K., ADVOCATE) AND 1. SRI M GANGADHAR S/O LATE MUNISHAMAPPA AGED ABOUT 52 YEARS R/AT GAJJIGANAHALLI VILLAGE KASABA HOBLI, SIDLAGATTA TALUK CHIKKABALLAPUR DISTRICT-562105 2. SMT MUNIYAMMA W/O LATE MUNISHAMAPPA AGED ABOUT 95 YEARS R/AT GAJJIGANAHALLI VILLAGE KASABA HOBLI, SIDLAGATTA TALUK CHIKKABALLAPUR DISTRICT-562105 SRI MUNIYAPPA SINCE DEAD BY HIS LRS 3. SMT LAKSHMAMMA W/O LATE MUNIYAPPA AGED ABOUT 55 YEARS R/AT GAJJIGANAHALLI VILLAGE KASABA HOBLI, SIDLAGATTA TALUK CHIKKABALLAPUR DISTRICT-562105 4. GANGADHARA G M S/O MUNIYAPPA AGED ABOUT 35 YEARS 5. SRI SURESH S/O MUNIYAPPA AGED ABOUT 35 YEARS 6. SMT BHARATHAMMA D/O MUNIYAPPA AGED ABOUT 27 YEARS 7. SRI MUNIVENKATARAYAPPA S/O MUNISHAMAPPA AGED ABOUT 70 YEARS 8. MUNIRATHNAMMA W/O M MUNIVENKATARAYAPPA AGED ABOUT 55 YEARS 9. RASHMI D/O M MUNIVENKATARAYAPPA AGED ABOUT 24 YEARS R4 TO R9 ARE R/AT GAJJIGANAHALLI VILLAGE KASABA HOBLI, SIDLAGATTA TALUK CHIKKABALLAPUR DISTRICT-562105 R7 TO R9 ARE NOW R/AT GANGANA MIDDE WARD NO 7, CHIKKABALLAPURA TOWN-562101 10. B M MAHADEVAIAH S/O MADEGOWDA AGED ABOUT 39 YEARS R/AT NO 25/1 GURUSARVA BOUMA NAGARA ITI LAYOUT NAYANDAHALLI MYSORE ROAD BENGALURU – 560 039 11. R V LOKESH S/O VENKATESHAPPA AGED ABOUT 37 YEARS R/AT RAMPURA VILLAGE BIDRAHALLI HOBLI VIRGONAGARA POST BENGALURU – 560 049 ... RESPONDENTS (BY SRI T.SUNIL, ADVOCATE ON BEHALF OF SRI. G. PAPI REDDY, ADVOCATE FOR C/R1; NOTICE TO R2 TO R11 IS DISPESED WITH V/O. DATED 08.07.2019) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.69/2016 PENDING ON THE FILE OF SENIOR CIVIL JUDGE & JMFC AT SIDLAGHATTA AND SET ASIDE THE ORDER DATED 11.06.2019 PASSED BY THE SENIOR CIVIL JUDGE & JMFC, AT SIDLAGHATTA, (ANNEXURE-A) AND ALLOW THE APPLICATIONS I.A.NO.28 UNDER ORDER 9 RULE 7 OF THE CODE OF CIVIL PROCEDURE TO RECALL THE EX-PARTE ORDER DATED 01.06.2016 AND I.A.NO.29 FILED BY THE PETITIONER UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE SEEKING PERMISSION TO FILE WRITTEN STATEMENT (ANNEXURES-C & D) AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the defendant No.5 in first respondent’s suit in O.S.No.69/2016 for a decree of partition & separate possession of the subject property is invoking the writ jurisdiction of this Court for assailing the orders dated 11.06.2019 and 01.06.2019 at Annexure-A whereby his application in I.A.No.28 filed under Order IX Rule 7 and another application in I.A.No.29 filed u/s.151 of CPC, 1908 seeking permission to file the Written Statement are rejected. The respondent-plaintiff has entered caveat through his counsel and opposes the writ petition.
2. The learned counsel for the petitioner argues that the subject applications having been duly supported by narrative affidavits ought to have been favoured especially when suit is for a decree of partition and the parties are related to each other; he further submits that the rejection of the said applications suffers from an error of law apparent on the face of the record warranting indulgence of this Court. The learned counsel for Caveator-respondent makes submission in justification of the impugned orders stating that the petitioner was never vigilant; despite service of notice he slept over the matter to ensure its being dragged on and therefore writ petition be dismissed.
3. I have heard the learned counsel for the petitioner and the learned counsel for the Caveator. I have perused the petition papers. I am of the considered opinion that this writ court needs to grant indulgence in the matter for the following reasons:
(a) suit is for a decree of partition & separate possession; it involves considerable property and parties are related to each other; petitioner has explained the circumstances that led to his not filing the Written Statement;
(b) ordinarily a defendant should have full opportunity to contest the suit by taking up necessary pleadings and by producing required evidence; despite service of notice the defendant did not participate in the proceedings, is true; but that per se cannot be a ground for denying justice subject to cost & condition; and (c ) the decision of the Apex Court in the case of M/s. SCG Contracts India Pvt. Ltd., vs. K.S.Chamankar Infrastructure Pvt. Ltd., & others, Civil Appeal No.1638/2019 cited from the side of the respondent-plaintiff arose from a suit in Commercial Court and therefore not much applicable to the facts of the case to deny relief to the petitioner.
In the above circumstances, these writ petitions succeed; the impugned orders are set at naught; petitioner’s applications are favoured; petitioner shall file the Written Statement within six weeks on payment of a cost of Rs.10,000/- to the respondent-plaintiff, within one month and he shall not unnecessarily seek adjournment in the suit proceedings, failing which the orders now quashed shall stand resurrected.
Sd/- JUDGE KLV