Smt Shashimohan vs Sri B Ramaiah on 18 September, 2019

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Karnataka High Court

Smt Shashimohan vs Sri B Ramaiah on 18 September, 2019

Bench: Krishna S.Dixit

                          1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 18TH DAY OF SEPTEMBER, 2019

                      BEFORE

      THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

 WRIT PETITION NOs. 5531-5532 OF 2019 (GM-CPC)
BETWEEN:

  1. SMT. SHASHIMOHAN
     AGED ABOUT 49 YEARS
     W/O H.S.MOHAN KUMAR

  2. SRI H S MOHAN KUMAR
     AGED ABUT 57 YEARS
     S/O H.V.SUNDAR RAJ SHETTY

      PETITIONERS 1 AND 2 ARE
      R/AT #28, HIG
      KUVEMPUNAGARA, HASSAN
                                     ... PETITIONERS
(BY SRI. A RAVISHANKAR, ADVOCATE)

AND

  1. SRI B. RAMAIAH
     AGED ABOUT 81 YEARS
     S/O AKKIBORAIAH @ AKKIBORASHETTY
     R/AT HOUSE NO. 4326
     VALLABAI MAIN ROAD
     HASSAN - 573 201

  2. SMT. LAKSHMAMMA
     AGED ABOUT 51 YEARS
     W/O LATE VENKATEGOWDA @SHAMANNA,

  3. SMT. JAYAMMA
     AGED ABOUT 59 YEARS,
     W/O SANNEGOWDA

  4. SMT. GOWRAMMA
     W/O LATE BHEEMEGOWDA
     @ PAPANNA,
     SINCE DECEASED BY HER
     LEGAL REPRESENTATIVES
                           2

 4(A). SRI NINGARAJU
      AGED ABOUT 31 YEARS,
      S/O LATE BHEEMEGOWDA @ PAPANNA,

 4(B). SRI DINESH
      AGED ABOUT 26 YEARS,
      S/O LATE BHEEMEGOWDA @ PAPANNA,

 4(C). MISS LATHA
      AGED ABOUT 27 YEARS,
      D/O LATE BHEEMEGOWDA @ PAPANNA,

     DEFENDANTS 2,3, 4(A) TO 4(C)
     R/AT THAMALAPURA VILLAGE,
     KASABA HOBLI,
     HASSAN TALUK AND DISTRICT - 573 202.

  5. SRI VISHWANATHA KASHI
     AGED ABOUT 51 YEARS,
     S/O LATE B S RAJASHEKAR
     BHOOMIKA
     RANGOLI HALLA MAIN ROAD,
     BEHIND IRANI BUNGALOW
     HASSAN - 573 201

  6. SRI P S MANJEGOWDA
     AGED ABOUT 55 YEARS,
     S/O SRI P H SAGANEGOWDA
     R/AT THRUPATHI NILAYA
     VIDYANAGARA NETHAJI ROAD
     HASSAN - 573 202

  7. SMT. S R SUNITHA
     AGED ABOUT 51 YEARS
     W/O D SURESH,
     R/AT #2000, SAMBRAMA
     GOWRIKOPPALU CIRCLE
     VIDYANAGARA
     HASSAN - 573 202.
                                         ... RESPONDENTS
(R1- SERVED, V/O DATED 14.03.2019,
     NOTICE TO R2 TO 7 DISPENSED WITH)

     THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS AND QUASHTHE ORDER DATED 01.01.2019
PASSED ON IA NOS. 16 AND 17 IN O.S. NO.35/2017 BY THE
ADDIITONAL CIVIL JUDGE AND JMFC, HASSAN, PRODUCED
AT ANNEXURE-A.
                              3

    THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-

                       ORDER

Petitioners being the defendants in a declaration suit in O.S.No.35/2017 are invoking the writ jurisdiction of this Court for assailing the order dated 01.01.2019 a copy whereof is at Annexure-A, whereby their applications in IA Nos. 16 & 17 filed under Order IX Rule 7 of CPC, 1908 have been rejected with cost. Despite service of notice, the respondents have chosen to remain unrepresented before this Court.

2. Having heard the learned counsel for the petitioners and having perused the writ petition papers, this Court grants relief because the suit is for declaration; the petitioners have contested the suit by filing the Written Statement, the properties in the suit are also huge; on the eventful day, the petitioners remained absent in Court below is true; but that per se is not sufficient to deny the reasonable opportunity of contesting the suit in the given circumstances.

3. The reason assigned by the petitioners, ie., what the learned trial judge at para no.12 of the impugned order has mentioned even if true, that per se cannot be a ground 4 for denying relief to the petitioner; ideally speaking, petitioners could have filed better affidavits in support of the subject applications; even now it is possible for them to do the same, if the matter is remanded for fresh consideration for meeting the ends of justice, of course, subject to cost & condition.

In the above circumstances, these writ petitions are allowed; impugned order is set at naught; the subject applications in IA Nos. 16 & 17 are remanded to the Court below for consideration afresh with liberty to the petitioners to file a better affidavit within a reasonable time to be granted by the Court below; petitioners are liable to pay a cost of Rs.5,000/- to the respondent - plaintiff within a period of one month, failing which the orders now quashed shall stand resurrected.

It is needless to mention that till after these applications are disposed off, no precipitatory action shall not be take pursuant to the decree in question.

Sd/-

JUDGE Bsv

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