Karnataka High Court
Smt Mahalakshmi vs Sri A M Narayanaswamy Raju on 3 September, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA, AT BANGALORE
DATED THIS THE 03RD DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL NO. 407 OF 2009
Between:
1. Smt. Mahalakshmi
Aged about 35 years
D/o late A.M. Krishnam Raju
(Wrongly mentioned as Sri. K.
Krishnam Raju) Now
R/at No. 60, Manjunatha Colony
3rd Cross, 23rd Main
J.P.Nagar II Phase
Bangalore 560 078.
2. Sri. Lavakumar
Aged about 33 years
S/o late A.M.Krishnam Raju
(Wrongly mentioned as Sri. K
Krishnam Raju) Now
R/at No. 66, 21-A Main
Marenahalli
J.P.Nagar II Phase
Bangalore 560 078.
3. Sri. Jayarama Raju
Since deceased by Legal
Representatives-
3(i) Smt. R. Jayamma
Aged about 74 years
W/o late Jayarama Raju
2
3(ii) J.Jayashuba
Aged about 45 years
D/o late Jayarama Raju
3(iii) Jayahari
Aged about 42 years
S/o late Jayarama Raju
3(iv) J. Jayarama
Aged about 40 years
D/o late Jayarama Raju
No. 3 (i) to 3(iv) are residing
At No. 39, 4th Cross
Manjunatha Colony
J.P.Nagar II Phase
Bangalore 560 078.
4. Sri. M.Anantharaju
Aged about 60 years
S/o late Muniswamy Raju
R/at No.55, Marenahalli
J.P.Nagar II Phase
Bangalore 560 078.
5. Sri. M.Shivananda Raju
Aged about 58 years
S/o late Muniswamy Raju
R/at No. 63/A, Marenahalli
J.P.Nagar II Phase
Bangalore 560 078.
....Appellants
(By Shri. Prakash T. Hebbar , Advocate)
AND
1. Sri. A.M.Narayanaswamy Raju
Aged about 65 years
S/o late Muniswamy Raju
3
R/at Mohitnagar Farm
Byrasandra Agara Village
Tataguni Post, Kengeri Hobli
Bangalore 560 063.
2. Sri. M.Srinivasa Raju
S/o Muniswamy Raju
Aged about 62 years
R/at No. 66, 1st Floor
J.P.Nagar II Phase
Bangalore 560 078.
....Respondents
( By Shri R.Shyama for R1;
R2 -D/W vide order dated 09.2.2010 )
This Regular First Appeal is filed under Section 96 CPC
against the judgment and decree dated 12.11.2008 passed in
OS No.8050/1999 on the File of the XXII Addl. City Civil Judge,
Bangalore dismissing the suit for partition and separate
possession; and etc.,
This appeal coming on for hearing, this day, the Court
made the following:
JUDGMENT
The plaintiffs are the appellants. The suit for partition came to be dismissed against which this appeal is filed.
2. It is submitted by the learned counsel that the plaintiffs and the defendants are brothers and sisters and they are living in a joint family. The family property was not partitioned and since 4 the plaintiffs were working elsewhere in different places, the defendant was residing in the village and he was looking after the affairs of the property. Hence the suit was filed for partition of the suit schedule property.
3. The suit came to be dismissed on the ground that the plaintiffs failed to establish status of the joint family and its properties. The plaintiffs are working in Indian Railway, H.A.L and I.T.I. This shows that there was no jointness of the property and family. The ground urged by the appellants is that there was earlier partition and exhibits have been marked in which names of brothers and sisters have been referred. The land granted in favour of the defendant was to the family and the evidence adduced by the defendant before the Land Tribunal shows that brothers have not partitioned the property and they are living together. Despite these materials, the court below has dismissed the suit which is an error. The reliance is placed on the judgment reported in ILR 1998 KAR 2655 where it has been held that if the defendant fails to file written statement and participate in the proceedings, the suit of the plaintiff for the purpose of Order 8 5 Rule 10 and Order 17 Rule 3 of CPC, it is to be presumed case in favour of the plaintiff.
4. The learned counsel for the defendant-respondent submits that the respondent was not aware about the proceedings and out come of the judgment in the suit. They noticed the judgment only when this Court notice has been served on them. The trial court placed them ex parte. In order to put their defence, he submits to remand the matter reserving liberty to place the evidence and materials.
5. I have heard both. From the order it is shown that the defendant is placed ex parte. The submission of the respondent that he noticed about the judgment only when this court notice has been served on him. The suit of the appellants has been dismissed on the ground that they have not satisfied the court about the status of the family and its property. Though the findings recorded by the court below are by referring the evidence and materials placed on record is one thing but the fact remains, in the ends of justice, the matter required to be remanded by permitting both the parties to adduce their evidence and place the materials. The judgment relied upon by the appellants, it is held 6 that when the defendants fail to make out their case either by filing written statement or the evidence and materials, the case in favour of the plaintiff has to be presumed. If this is followed, it definitely deprives opportunity and justice in favour of the defendants. Hence I pass the following:
ORDER The judgment passed by the court below is set aside. The matter is remanded for fresh consideration. The plaintiffs are permitted to adduce further evidence and place on record the additional materials. The defendant is permitted to file written statement within a period of three weeks from the date of appearance before the trial court and adduce evidence and place on record the materials. The parties are directed to appear before the court below on 11.10.2013.
Sd/-
JUDGE AKD