Mr. Krishnappa Vs Sri. Chikka Sonnappa

SMT. VENKATALAKSHMAMMA AGED ABOUT 48 YEARS W/O CHANNAKESHAVAPPA, R/AT GOLLU VILLAGE, KASABA HOBLI CHIKKABALLAPURA TALUK CHIKKABALLAPURA DISTRICT - 562109.

¶58

SMT. MUNIYAMMA W/O ASWATHAPPA D/O DODDASONNAMMA AGED ABOUT 87 YEARS R/AT AJAWARA VILLAGE PATRENHALLI POST, NANDI HOBLI CHIKKABALLAPURA TALUK CHIKKABALLAPURA DIST - 562101.

¶59

SMT. SAROJAMM AGED ABOUT 70 YEARS W/O LATE MUNNIREDDY R/AT AJAWARA VILLAGE PATRENAHALLI POST, NANDI POST CHICKABALLAPURA TALUK - 562101.

¶60

LAKSHMAMMA AGED ABOUT 77 YEARS D/O MUNIVENKATAPPA R/AT MUTHUR VILLAGE, MELUR POST SIDLAGHATTA TALUK CHIKKABALLAPUR DIST - 562105.

¶61

SRI. RAJANNA AGED ABOUT 73 YEARS S/O CHIKKAPILLAPPA R/AT GUVVALAKALAHALI VILLAGE KASABA HOBLI, CHIKKABALLAPURA TALUK CHIKKABALLAPURA DISTRICT - 562101.

¶62

6 - NC: 2026:KHC:3476 W.P. No.4305/2024

¶63

HC-KAR

¶64

SMT. BYRAMMA, ADULT W/O LATE VENKATESHAPPA R/AT GUVVALAKALAHALLI VILLAGE KASABA HOBLI, CHICKBALLAPURA TALUK CHICKBBALLAPURA DISTRICT - 562101.

¶65

SMT. NARAYANAMMA D/O CHIKKAPILLAPPA AGED ABOUT 78 YEARS R/AT SOPPHALLI GRAMA AVALAGURKI POST CHICKBALLAPUR TOWN CHICKBALLAPURA DISTRICT - 562101.

¶66

…RESPONDENTS

¶67

(BY SMT. JAYANTHI R, ADV., FOR R2 SRI. VINAY KUMAR N.D. ADV., FOR R7 R1, R3 & R4 ARE SERVED AND UNREPRESENTED V/O/DTD:28.02.2024 NOTICE TO R5 TO R30 IS D/W)

¶68

¶69

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR DIRECTION OR ORDER QUASHING THE IMPUGNED ORDER DATED 25/01/2024 PASSED BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND CJM, CHICKBALLAPURA IN OS NO.26/2009 DISMISSING IA NO.56 FILED UNDER ORDER 9 RULE 7 C.P.C. VIDE ANNEXURE-C AND CONSEQUENTLY ALLOW IA NO.56 FILED UNDER ORDER 9 RULE 7 C.P.C FILED BY THE PETITIONER VIDE ANNEXURE-B & ETC.

¶70

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

¶71

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

¶72

7 -

¶73

NC: 2026:KHC:3476 W.P. No.4305/2024

¶74

HC-KAR

¶75

ORAL ORDER

¶76

This writ petition is filed seeking the following reliefs:

¶77

"Issue a writ of certiorari or any other appropriate writ or direction or order quashing the impugned order dated 25/01/2024 passed by the court of Prl. Senior Civil Judge and CJM, Chickballapura in OS No.26/2009 dismissing IA No.56 filed under Order 9 Rule 7 C.P.C. vide Annexure-C and consequently allow IA No.56 filed under Order 9 Rule 7 C.P.C filed by the petitioner vide Annexure-B".

¶78

The learned counsel for the petitioner submits that the petitioner is the defendant No.2 in O.S.No.26/2009 filed by the respondent Nos.1 to 4 for partition and separate possession. It is submitted that in the said suit, the petitioner-defendant No.2 was placed ex parte and the matter was proceeded. Thereafter, he has filed an application under Order IX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908, seeking to recall the ex parte order and permit him to contest the proceedings. However, the same was rejected erroneously. It is further submitted that the defendant Nos.4 and 22 also were placed ex parte and their

¶79

8 - NC: 2026:KHC:3476 W.P. No.4305/2024

¶80

HC-KAR

¶81

application was favourably considered by the Trial Court. However, the Trial Court rejected the application of the petitioner on the ground of delay. It is also submitted that the right to defend in the suit is a substantive right of the petitioner and he has a proper defence in the suit to be placed and in the absence of placing such defence, the right of the petitioner would be affected and prejudice would be caused to him. Hence, he seeks to allow the petition.

¶82

Though the notice on the other side is served,

¶83

there is no representation.

¶84

I have heard the arguments of the learned

¶85

counsel for the petitioner and meticulously perused the material available record.

¶86

It is to be noticed that the respondent Nos.1 to 4 filed a suit in O.S.No.26/2009 for the relief of partition and separate possession. The petitioner is the defendant No.2 in the said suit. Admittedly, the notice on the

¶87

9 -

¶88

NC: 2026:KHC:3476 W.P. No.4305/2024

¶89

HC-KAR

¶90

petitioner was served and he remained absent. The matter was proceeded further and thereafter, on 16.01.2024, the petitioner filed an application under Order IX Rule 7 read with Section 151 of the CPC seeking to set aside the ex parte order passed against him and to permit him to file vakalath and contest the suit. The affidavit accompanying the said application indicates that due to personal inconvenience and unavoidable circumstances, the petitioner could not contest the proceedings. The Trial Court, without appreciating the same, under the impugned order, rejected the said application on the ground that the suit is of the year 2009 and the application is filed belatedly when the matter was posted for arguments.

¶91

It is to be noticed that the Trial Court in paragraph 6 has made reference with regard to filing of applications by the defendant Nos.4 and 22 under Order IX Rule 7 read with Section 151 of the CPC, seeking to set aside the ex parte order. The said applications came to be allowed and the said defendants were permitted to file the

¶92

10 -

¶93

NC: 2026:KHC:3476 W.P. No.4305/2024

¶94

HC-KAR

¶95

written statement and permitted to contest the proceedings. Taking note of the said finding of the Trial Court, I am of the considered view that the interest of justice would be met if the petitioner is provided one opportunity to contest the suit by filing the written statement.

¶96