Karnataka High Court
Smt.Lochana Bai vs Sudhakar & Ors on 19 February, 2018
Author: B Sreenivase Gowda
Bench: B. Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
W.P.NOS.207680/2017
AND 200350/2018 (GM-CPC)
Between:
Smt. Lochana Bai W/o Venkat Rao Valse,
Age : 51 Years, Occ : Agriculture,
R/o Gurdal, Tq. Devani, Dist. Lature (MS)
... Petitioner
(By Sri Sharanabassappa K. Babshetty, Advocate)
And:
1. Sudhakar S/o Sopan Rao Pichare,
Age : 56 Years,
Occ : Agriculture,
R/o Village Tugaon (H),
Tq. Bhalki, Dist. Bidar.
2. Smt. Sunanda W/o Venkat Rao,
Age : 55 Years,
Occ : Household,
R/o Takli,
Tq. Devani, Dist. Latur (MS).
2
3. Shakku Bai W/o Madan Pichare,
Age : 38 Years,
Occ : Household,
R/o Village Tugaon (H),
Tq. Bhalki, Dist. Bidar.
4. Smt. Meena W/o Ashok Pichare,
Age : 36 Years,
Occ : Household,
R/o Village Tugaon (H),
Tq. Bhalki, Dist. Bidar.
5. Ajeet S/o Ashok Pichare,
Age : 21 Years,
R/o Tugaon (H),
Tq. Bhalki, Dist. Bidar.
6. Atul S/o Ashok Pichare,
Age : 18 Years,
R/o Tugaon (H),
Tq. Bhalki, Dist. Bidar.
7. Smt. Manisha W/o Angad Balwant,
Age : 34 Years,
Occ : Household,
R/o Velegaon,
Tq. Devani, Dist. Latur (MS).
8. Smt. Lalitha Bai W/o Sudhakar Pichare,
Age : 48 Years,
Occ : Household,
R/o Village Tugaon (H),
Tq. Bhalki, Dist. Bidar.
...Respondents
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These Writ Petitions are filed under Articles 226
and 227 of the Constitution of India praying to, issue a
writ of Certiorari, quashing the order dated 15/6/2017
passed by the Senior Civil Judge at Bhalki, on IA No.2
and 3 in FDP No.1/2011, vide Annexure-'G' to this writ
petition and etc.,.
This petition coming on for preliminary hearing
this day, the Court made the following:-
ORDER
Heard learned counsel appearing for the petitioner. Perused the writ petitions and Annexures produced along with the writ petitions.
2. Petitioner has preferred these writ petitions seeking a writ of certiorari to quash the order dated 15.06.2017, passed by the trial Court, wherein it has allowed the application filed by respondent No.7 and recalled the order placing respondent No.7 exparte and permitted her to participate in the proceedings. 4
3. The case of the petitioner is that he filed a suit in O.S.No.3/2010, against the respondents for partition and separate possession of his share in the suit properties. The trial Court partly decreed the suit only against defendant Nos.2 to 8 and 13 and dismissed the suit against other defendants holding that petitioner/plaintiff is entitled for 1/4th share in the suit lands bearing Sy.No.90/5 measuring 4 acres 4 guntas standing in the name of defendant No.5, Sy.No.90/2 measuring 8 acres 23 guntas standing in the name of defendant Nos.6 and 7, Sy.No.70 measuring 2 acres 30 guntas standing in the name of defendant Nos.4 and 8, Sy.No.71 measuring 1 acre 07 guntas standing in the name of defendant Nos.4 and 8, Sy.No.82/1 measuring 8 acres standing in the name of defendant Nos.13, Sy.No.82 measuring 1 acre standing in the name of defendant No.2, Sy.No.83/2 measuring 4 acres standing in the name of defendant No.4 and 2 acres standing in the name of defendant No.2. The said judgment and 5 decree passed by the trial Court had become final as no parties to the suit carried the same further in appeal. Hence, petitioner initiated proceeding for drawing up of final decree passed in F.D.P.No.1/2011, as per preliminary decree in O.S.No.3/2010.
4. The grievance of the petitioner/plaintiff is that five years after initiation of final decree proceedings respondent No.7 filed an application under Order IX Rule 7 R/w Section 151 of CPC for recalling the order, whereunder she was placed ex-parte, the trial Court without providing an opportunity of hearing to the plaintiff/petitioner allowed the application and recalled the order placing defendant No.7 exparte and permitted defendant No.7 to file statement of objection and contest the final decree proceedings.
5. As could be seen from the judgment and decree passed in O.S.No.3/2010, respondent No.7 is one of the defendants against whom preliminary decree 6 was passed. The trial Court accepting the reasons stated by respondent No.7 in the affidavit filed in support of I.A.No.2 filed under Order IX Rule 7 R/w Section 151 of CPC allowed the application and set aside the order dated 30.07.2011 whereunder she was placed ex-parte and permitted her to file statement of objections and contest the final decree proceedings.
6. As could be seen from the order passed by the trial Court, respondent No.4 filed an application (I.A.No.1) under Order XXXII Rule 9 R/w Section 151 of CPC praying the trial Court to discharge respondent No.4 from the guardianship of respondent Nos.5 and 6. At the same time respondent No.7 had filed an application (I.A.No.2) under Order IX Rule 7 R/w 151 of CPC praying the trial Court to recall the order dated 30.07.2011 whereunder she was placed exparte and permit her to participate in the proceedings. The trial Court by common impugned order allowed both the 7 applications, discharged respondent No.4 from the guardianship of respondent Nos.5 and 6 and recalled the order dated 30.07.2011, whereunder it has placed respondent No.7 exparte and permitted respondent No.7 to participate in the proceedings. I have carefully gone through the order passed by the trial Court and do not see any hardship caused to the petitioner by virtue of the said order.
Hence, the following:
ORDER Writ petitions are dismissed as devoid of merits.
Sd/-
JUDGE RSP