Sri. G.S. Rajappa Vs Smt. Rathnamma

(BY SRI. KIRAN GOWDA M, ADVOCATE FOR SRI. PRASANNA KUMAR R.S, ADVOCATE FOR R1, R2, R4 & R5 SRI. MUNIYAPPA, ADVOCATE FOR R6, R3-SERVED R7-SERVICE OF NOTICE IS DISPENSED WITH VIDE ORDER DATED 06.01.2020)

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HC-KAR

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.437/2008 FROM THE FILE OF 2ND ADDL CIVIL JUDGE AND JMFC AT MALUR AND SET ASIDE THE ORDER DTD.10.3.2016 PASSED BY THE 2ND ADDL CIVIL JUDGE AND JMFC AT MALUR (IMPUGNED AS ANNEXURE-A) AND CONSEQUENTIALY RESTORE O.S.NO.437/2008 AND DISPOSE THE SUIT IN ACCORDANCE WITH LAW AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking following reliefs,

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"a) Call for records in O.S. No.437/2008 from file of the 2^nd Addl Civil Judge & JMFC at Malur, and set aside the order dated 10.03.2016 passed by the 2^nd Addl Civil Judge & JMFC at Malur (impugned as Annexure-A ) and consequently restore O.S.No.437/2008 and dispose the suit in accordance with law.

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b) Issue any other appropriate writ, order or direction as this Hon'ble Court deems it fit to grant under the facts and circumstances of the case, in the interest of justice and equity."

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Heard Sri Vijaya Kumar K., learned counsel for

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the petitioner submits that respondent No.1 has filed a suit

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HC-KAR

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for partition and separate possession. The defendants filed their written statement. Later the plaintiff filed I.A.No.2 seeking to implead the petitioner as defendant No.7 in the said suit. Thereafter, petitioner-defendant No.7 appeared and sought time to engage the counsel. Thereafter, counsel has appeared before the Trial Court and on 16.07.2014, the Trial Court recorded that the petitioner is already on record and amended cause-title is also filed.

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It is submitted that the suit came to be decreed ex - parte on 29.10.2014 and immediately the petitioner filed a miscellaneous petition in Misc.No.5/2015 before the said Court seeking to recall the judgment in O.S.No.437/2008. The said miscellaneous petition was allowed on payment of cost of Rs.3,500/-. On 05.11.2015, same cost was paid and notice was issued to the parties on the suit.

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HC-KAR

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It is submitted that the Trial Court under the

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impugned order dated 10.03.2016, held that the defendant No.7 wrongfully filed Misc.No.5/2015 to set aside the judgment and decree and to restore the suit. Since the judgment is passed on 29.10.2014 and suit cannot be restored. Such an order of Trial Court is highly illegal, arbitrary and contrary to law.

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It is further submitted that the order dated 17.10.2015 passed in Misc.No.5/2015 of the same Court was not challenged by anyone. The said miscellaneous petition was allowed on cost and the suit was restored.

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The Trial Court has failed to appreciate the same and s uomotu came to the conclusion that suit cannot be restored.

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It is also submitted that the suit is for partition and the petitioner claims substantive right over the property. Hence, the matter is required to be tried on its merits and cannot be rejected merely on technicalities. In support of his contentions and to explain the scope of

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HC-KAR

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order under Order 9 Rule 13, he placed reliance on the decision of Court in the case of M/s. Kuvarp Industries, Bangalore and another vs. State Bank of Mysore¹ and seeks to allow the petition.

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Sri Kiran Gowda M., learned advocate for Sri Prasanna Kumar R.S., learned counsel appearing for respondent Nos.1, 2, 4 and 5 and Sri Muniyappa, learned counsel appearing for respondent No.6 support the impugned order of the Trial Court and submit that the Trial Court rightly came to the conclusion that the judgment and decree passed by the Trial Court on 29.10.2014 is not

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a ex-parte as the petitioner has participated in proceedings and could not file the written statement. Hence, the Trial Court by recording of the same rightly closed the suit.

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It is submitted that the petitioner filed Misc.No.5/2015 under Order 9 Rule 9 of CPC, as evidenced

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1 AIR 1985 KAR 77

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HC-KAR

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by Annexure-F, the order sheet. The said miscellaneous petition itself is not maintainable, which has been rightly considered by the Trial Court and closed the proceedings, which does not call for any interference.

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I have heard the arguments of learned counsel for the petitioner and learned counsel for the respondents meticulously perused the material available on record. I have given my anxious consideration to the submissions advance on both the sides.

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Pleading and materials on record indicate that the respondent No.1-plaintiff has filed O.S.No.437/2008 for partition and separate possession of 1/5^th share in the suit schedule property. Defendant No.2 filed a written statement and issues were framed. The plaintiff examined himself as PW1 and got marked Ex.P1 to Ex.P9. When the matter was posted for further evidence of PW1, respondent No.1-plaintiff filed I.A.No.2 under Order 1 Rule 10 read with Section 151 of CPC seeking to implead the

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HC-KAR

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petitioner as defendant No.7 in the proceedings. The order sheet indicates that the notice was issued on said application which came to be served on the proposed defendants on 12.08.2011. On the said date, the petitioner-defendant No.7 was present in person and prayed for time to engage counsel and to file a written statement. Thereafter, the matter was adjourned.

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Order sheet indicates that on 21.09.2011, the Trial Court recorded that the defendant No.7 and the counsel were absent. Written statement of defendant No.7-petitioner was taken as not filed and posted the matter to 14.10.2011. Order sheet dated 18.02.2012 indicates that the plaintiff and defendant Nos.1 to 5 and their counsel are present and both the parties have signed the compromise petition and the said compromise petition is filed under Order 23 Rule 3 of CPC with regard to item No.1 of the suit schedule property and matter was adjourned. Order dated 17.07.2012 indicates that suit summons were not issued to the proposed defendant

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HC-KAR

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Nos.6 and 7 due to oversight. Hence the Trial Court has made an order to issue suit summons to defendant Nos.6 and 7 (petitioner) through RPAD and thereafter, the matter was adjourned.

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On 14.12.2012, order sheet indicates that defendant No.6 was absent and was placed ex - parte. Sri G.R.S. Advocate filed vakalath for defendant No.7 (petitioner herein) and matter was adjourned to file objections to I.A.No.2 filed by the plaintiff under Order 1 Rule 10. The matter was adjourned from time to time and the application in I.A.No.2 was heard on 21.06.2014.

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13. Order sheet dated 16.07.2014 reads as under,

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"Order sheet reveals that IA No.2 and 3 is already allowed and applicants in IA No.2 is already on record and proposed Amendment sought under IA No.3 is Already carried out and amended plaint Is already filed. Hence case is posted for Plaintiff evidence by 28.07.2014"

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HC-KAR

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The aforesaid order indicates that I.A.Nos.2 and 3 are already allowed and the case was posted for plaintiff's evidence. Order dated 25.09.2014 indicates that the suit is pending for disposal in respect of item No.2 of the suit schedule property against the defendant Nos.6 and 7 (petitioner herein), since defendant Nos.6 and 7 were placed ex-parte, cross of PW.1 by defendant Nos.6 and 7 was taken as nil and the case is posted for arguments. On 29.10.2014, Trial Court decreed the suit. The aforesaid referred order sheets clearly indicate that the Trial Court has committed a grave error in maintaining the order sheet from the date of consideration of I.A.No.2 till passing of the judgment said to have been passed on 29.10.2014. Surprisingly, the Trial Court under the impugned order dated 10.03.2016, s uo-motu came to the conclusion that since the judgment was passed, the suit cannot be restored by ignoring the order dated 17.10.2015 passed in Misc.No.5/2015 and all earlier orders. It is not in dispute that the order dated 17.10.2015

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HC-KAR

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passed in Misc.No.5/2015 is unchallenged by any of the parties and the said order reads as under,

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"Advocate for the respondent No.1 submit that, petition can be allowed on heavy cost and OS.437/2008 can be restored.

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Hence petition is allowed on cost of Rs.3,500/- and original suit No.437/2008 is restored, with a condition that, both the parties shall proceed with the case on day to day basis without seeking any adjournments.

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Issue notice to defendants in OS.No.437/2008 by RPAD if furnished."

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The Trial Court committed a grave error in

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following the correct procedure and in not providing any opportunity to the petitioner-defendant No.7 to contest the proceedings. This Court did not go into the scope and ambit of Order 9 Rule 13 in the instant case as the procedure followed by the Trial Court itself is incorrect. On that occasion, the Trial Court recorded that opportunity was provided to defendant No.7 to file a written statement. Thereafter, learned counsel for defendant No.7

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HC-KAR

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appeared and later it came to the conclusion that defendant No.7 was placed ex-parte and proceeded to pass the judgment and decree in the aforesaid original suit. Rightly or wrongly the petitioner filed Misc.No.5/2015 which came to be allowed by the very same Court on cost of Rs.3,500/-, wherein the learned counsel for the petitioner had also consented to pass the said order. The suit was restored and ignoring the same, the Trial Court under the impugned order, again came to the incorrect conclusion that the judgment and decree had been passed and the suit could not be restored.

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Be that as it may, an opportunity needs to be provided to defendant No.7-petitioner to defend the suit with regard to item No.2 of the suit schedule property. Hence, I am of the considered view that the Trial Court has followed incorrect procedure in coming to the conclusion while passing the impugned order dated 10.03.2016 which calls for interference. This Court also cannot ignore the fact that there is a lapse on the part of

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HC-KAR

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the petitioner in attending the proceedings and taking time. Hence this petition is required to be allowed on terms. For the aforementioned reasons, I proceed to pass the following order:

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ORDER

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i. Writ petition is allowed.

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ii. Impugned order dated 10.03.2016 passed in O.S.No.437/2008 by the II Additional Civil Judge and JMFC, Malur is set aside.

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iii. The Trial Court is directed to continue the proceedings in O.S.No.437/2008 by providing sufficient opportunity to the petitioner and defendant No.7 and other contesting defendants and dispose of the same in accordance with law subject to petitioner paying cost of Rs.10,000/- to respondent No.1-plaintiff.

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SD/(VIJAYKUMAR A. PATIL) JUDGE

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CR/ List No.: 1 Sl No.: 27

Sri. G.S. Rajappa v. Smt. Rathnamma

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Sri. G.S. Rajappa v. Smt. Rathnamma

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