Sarojamma vs Rajamma and Others

B. Manohar, J.—Petitioner is the 8th defendant in OS No. 148/2011 on the file of the Civil Judge and JMFC, HD Kote. Being aggrieved by the order dated 18.12.2014 made on I.A. No. 9 filed under Order 9 Rule 7 CPC seeking for setting aside the ex parte order passed against him and permit him to contest the matter, he has filed this writ petition.

Respondents No. 1 to 9 herein filed the suit seeking for partition and separate possession of the suit schedule properties and claimed that the suit schedule properties are ancestral properties of plaintiffs and defendants. Plaintiffs are entitled for their share in the suit schedule properties.

The contesting defendants were served with notice. Though the petitioner/8th defendant in the suit was served with notice on 13.10.2011, she remained unrepresented before the Trial Court. Therefore, the Trial Court has placed her ex parte and proceeded with the matter. The parties have lead the evidence and the trial was over. When the matter was posted for argument, I.A. No. 9 was filed under Order 9 Rule 7 CPC seeking for setting aside the order placing the 8th defendant ex parte . The Trial Court after considering the matter in detail rejected I.A. No. 9. Being aggrieved by the order impugned, the present writ petition has been filed.

Sri Vijaya Krishna Bhat, learned Advocate appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. The Trial Court ought to have given opportunity to the 8th defendant to defend her case. The plaintiffs are not entitled for their share in the suit schedule properties. Hence, sought for allowing the writ petition.

I have carefully considered the arguments addressed by the learned counsel appearing for the petitioner, perused the order impugned and other relevant records.

The records clearly disclose that respondents No. 1 to 9 herein filed OS No. 148/2011 on the file of the Civil Judge and JMFC, HD Kote seeking for permanent injunction in respect of the suit schedule properties. Admittedly, the suit schedule properties are ancestral properties of plaintiffs and defendants. The plaintiffs are entitled for the share in the suit schedule properties. Though the notice was served on the 8th defendant, she remained unrepresented before the Trial Court. Hence, the Trial Court placed the 8th defendant ex parte and proceeded with the suit. When the matter was posted for argument, I.A. No. 9 was filed praying to set aside the order placing her ex parte in the suit. The Trial Court after considering all these aspects of the matter found that the intention of the petitioner is to drag the proceedings. The present application filed by the 8th defendant/petitioner herein was dismissed. Therefore, I do not find any infirmity or illegality in the order impugned passed by the Trial Court. The petitioner has not made out prima facie case to interfere with the order impugned. Accordingly, I pass the following:

ORDER

The writ petition is rejected.