Allowed

Narayanaswamy v. Smt. N. Pushpa

Karnataka HC11 Jun 2024WP/13018/2022

Case brief

AI extract

What is this about?

This writ petition challenged the dismissal of an application to set aside ex parte orders in a partition suit. Due to the inclusion of self-acquired properties not included in the original notice, the High Court allowed the petition, set aside the lower court's order, and permitted defendants to appear on condition of cost payment and a one-year time limit for suit disposal.

What did the court decide?

Writ petition allowed; Order dismissing application to set aside ex parte proceedings set aside; Application allowed on condition of cost payment and disposal within one year.

Narayanaswamy Vs Smt. N. Pushpa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:21036 WP No. 13018 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 13018 OF 2022 (GM-CPC)

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BETWEEN:

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NARAYANASWAMY S/O NARAYANAPPA, AGED ABOUT 63 YEARS,

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N.RAMESH S/O NARAYANASWAMY, AGED ABOUT 39 YEARS,

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N.MURALI S/O NARAYANASWAMY, AGED ABOUT 37 YEARS,

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N.SUMA S/O.NARAYANASWAMY, AGED ABOUT 37 YEARS,

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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ALL 1 TO 4 ARE RESIDING AT CHANNASANDRA VILLAGE, VEMGAL HOBLI, KOLAR TALUK, KOLAR-563 102

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(BY SRI. MANJUNATH.R., ADVOCATE)

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AND:

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…PETITIONERS

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SMT.N. PUSHPA D/O NARAYANASWAMY, W/O MANJUNATHA, AGED ABOUT 39 YEARS, SUGATUR VILLAGE, JANAGAMAKOTE HOBLI, SIDLAGATTA TALUK-562 102

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S.NAGARAJ GOWDA S/O SONNAPPA,

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NC: 2024:KHC:21036 WP No. 13018 of 2022

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AGED ABOUT 74 YEARS, MAJARAHOSAMATNAHALLI VILLAGE, SUGATHUR HOBLI, KOLAR TALUK-563 102

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BAWAPARMJIT SINGH S/O LATE BAWAGURUDEYEL SINGH, AGED ABOUT 85 YEARS, NO.131, 14^TH MAIN, NEAR 27^TH CROSS, 3^RD BLOCK, VIJAYANAGAR, BANGALORE-560 011

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N GANGAPPA DEAD BY LRS.

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a. VENKATESHAPPA S/O LATE GANGAPPA, AGED ABOUT 59 YEARS,

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b. NARAYANASWAMY DEAD BY LRS.,

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a) YASHODAMMA,

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W/O LATE NARAYANASWAMY, AGED ABOUT 59 YEARS

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b) MANJUNATHA S/O LATE NARAYANASWAMY, AGED ABOUT 44 YEARS,

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c) NETHRAVATHI D/O LATE NARAYANASWAMY, AGED ABOUT 39 YEARS,

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d) MURALIDHARA S/O LATE NARAYANASWAMY, AGED ABOUT 37 YEARS,

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RESPONDENT NO.4 (b) LR’S (a to d) ARE R/AT 1^ST MAIN ROAD, 7^TH CROSS, GURADACHARPALYA, MAHADEVAPURA, BANGALORE-560 048

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c. JAYALAKSHMAMMA D/O LATE GANGAPPA, MAJOR,

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3 - NC: 2024:KHC:21036 WP No. 13018 of 2022

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d. SHAKUNTHALA D/O LATE GANGAPPA, MAJOR,

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e. CHANNALAKSMI D/O LATE GANGAPPA, MAJOR, LRs (a) TO (e) ARE R/AT 1^ST MAIN ROAD, 7^TH CROSS, GURADACHARPALYA MAHADEVAPURA, BANGALORE-560 048

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H.M.MANJUNATH S/O H.M.VENKATESHAPPA, AGED ABOUT 52 YEARS,

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N.JAYASHREE W/O H.M.MANJUNATHA, AGED ABOUT 47 YEARS,

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H.M.JANARDHAN S/O H.M.MUNIVENKAPPA, AGED ABOUT 42 YEARS,

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RAMADEVAMMA DEAD BY LRS.,

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a MANJUNATHA S/O RAMADEVAMMA AND H.M. MUNIVENKATAPPA, MAJOR,

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b. VENUE S/O RAMADEVAMMA AND MUNIVENKATAPPA LATE, MAJOR,

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RESPONDENTS 5 TO 8 ARE R/O GULPET, KOLAR CITY

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SMT.VARALAKSHMAMMA W/O C.N.NARAYANASWAMY, AGED ABOUT 59 YEARS, R/AT CHANNASANDRA VILLAGE, VEMAGAL HOBLI, KOLAR TALUK-563 101

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NC: 2024:KHC:21036 WP No. 13018 of 2022

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THE SPECIAL LAND ACQUISITION OFFICER-I DEVELOPMENT BOARD, (KIADB) OFFICE SITUATED AT NO.14/3, MAHARSHI ARABINDO BHAVAN, 1^ST FLOOR, NRUPATHUNGA ROAD, BANGALORE-560 001

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…RESPONDENTS

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(BY SRI. VENKATA REDDY C.M., ADVOCATE FOR R1 SRI.P.V.CHANDRASHEKAR, ADVOCATE FOR R10 V/O/D 27/7/2022, NOTICE TO R2 TO R9 DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:13.06.2022 VIDE ANNEXURE-J, PASSED IN OS.320/2013, BY THE LEARNED 1^ST ADDL. SENIOR CIVIL JUDGE AND CJM AT KOLAR, ON THE APPLICATION FILED BY THE PETITIONERS VIDE ANNEXUREG AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONERS.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present writ petition is filed aggrieved by the order passed on I.A.No.27 filed under Order IX Rule 7 of R/w Section 151 of CPC in O.S.No.320/2013 dated 13.06.2022 passed by the I Addl. Senior Civil Judge & CJM, Kolar.

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The petitioners before this court are defendants No.1,2,3 and 4. The respondent herein has filed the suit for partition. The defendant No.1 and 3 were set exparte on 09.06.2014, defendant No.2 was set exparte on 04.01.2014 and the defendant No.4 was set exparte on 03.06.2015. After

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NC: 2024:KHC:21036 WP No. 13018 of 2022

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the defendants were set exparte the plaintiffs have filed a petition seeking amendment of the pleadings and the suit schedule properties 3 to 11 were added. Thereafter in the year 2021 defendants Nos.1 to 4 have come up with this application to set aside the exparte order. The said application came to be dismissed by the court below on the ground that the summons were served on all the defendants, but they choose not to appear before the court. The contention of the defendants is that on 02.12.2021 in a marriage ceremony they came to know about the filing of the suit cannot be accepted when the summons were duly served on them way back in the year 2014 and 2015 respectively. The court observed that the very purpose of filing of the application at belated stage shows the intention of the defendant Nos.1 to 4 to drag on the proceedings and they cannot take shelter under the guise of ignorance and accordingly dismissed the petition.

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Learned counsel appearing for the petitioner submits that initially the suit schedule properties are two in number and they have already sold the properties to defendant No.7. It is submitted that when they were set exparte in the year 2014, thereafter plaintiff filed the petition for amendment of the plaint

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NC: 2024:KHC:21036 WP No. 13018 of 2022

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and properties 3 to 11 were added which are self acquired properties of defendant Nos.1 to 4. It is submitted that if the opportunity is not given and the said exparte orders are not set aside, lot of prejudice will be caused to the defendants and the property which is self acquired is sought to be partitioned. The court below without considering all these aspects, went on a hyper technical approach and dismissed the petition.

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Learned counsel appearing for the respondent/plaintiff submits that there is no dispute about the fact that summons were served and why they have not appeared before the court, there is no explanation forthcoming. Now as the properties 3 to 11 are included, now it is stated that they have come before the court. Whatever the reasons that are stated in support of the delay petition, basing on that delay cannot be considered as they have not given any valid reasons. It is submitted that almost after a period of seven years these petitions are filed for the best reasons know to them. He submits that the inordinate delay in filing these applications cannot be considered and the court below had rightly dismissed the petition.

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NC: 2024:KHC:21036 WP No. 13018 of 2022

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Having heard the learned counsels on either side, perused the entire material on record. The applications filed by the defendant Nos.1 to 4 were dismissed by the court below. They were all set exparte in the year 2014 and 2015, applications came to be filed in the year 2021. Admittedly the summons were served and defendants not chosen to file the application till 2021. Though there is a inordinate delay, this court has perused the affidavit filed by them in support of the I.A., as rightly pointed out by the learned counsel for the respondent no reasonable grounds are made out for the said delay. But one important factor which this court cannot loose sight of, is initially the suit is filed for partition in respect of suit, 1 & 2 schedule properties. Thereafter the properties 3 to 11 are included. Now it is the case of the defendants that properties 3 to 11 are self-acquired properties of the defendants. Admittedly inclusion of the properties is not in the notice of the defendants as they were set exparte on 04.01.2024. Hence, considering this aspect, this court is of the view that opportunity should be given on some conditions.

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Accordingly the following order:

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8 - NC: 2024:KHC:21036 WP No. 13018 of 2022

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ORDER

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1. Accordingly, the writ petition is Allowed.

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The order in I.A.No.27 passed in O.S.No.320/213 dated 13.06.2022 by the I Addl. Senior Civil Judge & CJM, Kolar is set aside.

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The petition filed by defendants Nos.1 to 4 is allowed on the condition that each defendant shall pay an amount of Rs.10,000/- as cost to the respondent. As this is the suit of 2013, the court below shall dispose of the suit as expeditiously as possible but not later than one year.

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Pending I.As., if any shall stand disposed of.

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SD/JUDGE

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TS List No.: 1 Sl No.: 30

Narayanaswamy v. Smt. N. Pushpa

Case brief

What is this about?

What did the court decide?

Narayanaswamy v. Smt. N. Pushpa

Case brief

What is this about?

What did the court decide?

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