In a writ petition challenging a trial court order rejecting an application for fresh notice in a partition suit, the High Court declined to exercise supervisory jurisdiction as the petitioner is a party defendant and no prejudice is shown.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ No. 306/2018
Bhawani Singh S/o Shri Late Shri Gopi Krishna, By Caste Mali, R/o 696 Near Bhati Tea Stall, Bhatiya Choraha, Jodhpur.
----Petitioner
Proforma Respondents :
All R/o House No. 696, Near Bhati Tea Stall, Bhatiya Choraha, Ratanada, Jodhpur.
2/1. Smt. Sarswati Devi W/o Late Shri Dolat Ram Jee
----Respondents
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[CW-306/2018]
For Petitioner(s) For Respondent(s)
: Mr. Girish Joshi : Mr. Manish Tak Mr. Shanker Singh Gehlot
JUSTICE DINESH MEHTA Judgment
16/11/2018
The present writ petition is directed against the order dated 11.09.2017, passed by learned Additional District Judge No.1, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as the ‘Trial Court’), whereby petitioner’s request for issuing a fresh notice to defendant No.5 – Dhan Kanwar has been turned down.
The facts in a nutshell are that the respondent No.1 – plaintiff filed a suit for partition declaration and mandatory injunction impleading all other brothers and sisters as defendants.
During the course of leading plaintiff’s evidence, it has purportedly transpired that address of Dhankanwar – defendant No.5 has been wrongly mentioned in the memo of the plaint. The petitioner – defendant No.1 thus moved an application dated 25.03.2015 praying that the plaintiff be directed to submit correct address/particulars of defendant No.5 and fresh notice be issued to her.
The learned Trial Court rejected petitioner’s said application dated 25.03.2015 with the costs of Rs.1,000/- while finding the application to be frivolous. The learned Court below has also observed that proper service upon defendant No.5 had been effected.
After hearing learned counsel for the parties and perusing the material available on record, particularly the fact that the suit from which the present writ petition emanates is a suit for
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[CW-306/2018]
partition and the Trial Court has drawn ex-parte proceedings against said Dhankanwar on 01.08.2009, this Court is not inclined to exercise it supervisory writ jurisdiction under Article 227 of the Constitution of India.
The petitioner himself is a party defendant in the said suit for partition and defendant No.5 is none other than his sister. There is no prejudice or miscarriage of the justice caused to the petitioner. Hence any interference at the petitioner’s instance is unwarranted.
Even otherwise in a suit for partition, notwithstanding the fact that a defendant appears or not, his rights are to be determined in accordance with law.
No case for interference is made out.
The petition is, thus dismissed.
(DINESH MEHTA),J
Anurag/64
2 issues framed by the court
Whether the High Court should exercise supervisory jurisdiction under Article 227 to direct issuance of a fresh notice to a sister defendant in a partition suit.
Whether attractive jurisdiction is warranted to interfere with the impugned order rejecting an application for fresh notice.
Bhawani Singh
Chaturbhuj
Dhankanwar
Legal Representative Of Purushotam
Legal Representative Of Dolat Ram
Legal Representative Of Durga Lal
Dinesh Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
