(Prayer: This Writ Petition is filed under Articles 227 of the Constitution of india Praying to set aside the Order Dated 23.09.2016 Passed by The Learned Sr. Civil Judge and JMFC, Devanahalli in O.S.853/2008 on I.A.31 Vide Annexure-A;).
1. This is 3rd defendant's writ petition against the order dated 23.09.2016 made in O.S.No.853/2008 on the file of the Senior Civil Judge and JMFC, Devanahalli, rejecting I.A.No.31 filed under Order IX Rule 7 r/w Section 151 of the Code of Civil Procedure.
2. The Respondent Nos.1 and 2/ plaintiffs filed suit in O.S.No.853/2008, for partition and separate possession of 2/5th share in the suit schedule property; declaration that the partition dated 04.12.1990 between deceased Munihanumantharayappa and his sons, defendants 1 to 3, is null and void and not binding on the plaintiffs; declaration that the Will dated 16.02.1991 and 19.02.1991 said to be executed by late Munihanumantharayappa in favour of defendants 4 and 5, as forged, fabricated by defendants 1, 4 and 5 and the same is illegal, and not a genuine one; declaration that the sale deeds registered on 28.06.2004, in favour of the 6th defendant dated 24.06.2004 executed by defendants 1, 4 and 5 along with others, the sale deed executed by defendant No.2 and his family members, the sale deed executed by defendant No.3 and his family members, are null and void, not binding on the plaintiffs and consequently the sale deed dated 20.11.2004 executed by the 6th defendant in favour of the 7th defendant and the subsequent transaction in respect of the suit schedule property are also void, not binding on the plaintiffs; declaration that the sale deed dated 25.09.2014 executed by defendant Nos.6 and 7 in favour of 8th defendant, is a void document as it is hit by Section 52 of the Transfer of Property Act, and in violation of the interim order of temporary injunction; declaration that the sale deed dated 19.10.2012 in favour of 6th defendant executed by defendants 4 and 5 is an invalid and void document and hit by Section 52 of the Transfer of Property Act, etc., contending that the plaintiffs are the sisters of defendant Nos.1 to 3 who are the children of late Munihanumantharayappa, defendant Nos.4 and 5 are the daughters of Anjinappa, the 1st defendant. The said Munihanumantharayappa was the absolute owner of the agricultural land bearing Sy.No.52/3 measuring 5 acres 7 guntas along with 4 guntas kharab situated at Nagamangala village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District. The said land was a darkasth land and was the absolute property of Munihanumantharayappa and it was granted to him during his life time and he had not alienated the property nor did make any disposition of any portion of the property. Defendants 1 to 5 are representing that late Munihanumantharayappa had bequeathed 1 acre 11 guntas of land out of 5 acres 7 guntas in favour of defendants 4 and 5. Said late Munihanumantha- rayappa never executed any Will either in favour of defendants 4 and 5 or in favour of anybody. Defendants 1 to 5 might have created the Will with malafide intention to get unlawful gain and the same is not binding on the plaintiffs, etc.
3. All the defendants filed written statement and the 3rd defendant filed separate written statement, denied the plaint averments and contended that the suit filed by plaintiffs is not maintainable. It is further contended that the 3rd defendant who is the brother of the plaintiffs executed a registered sale deed in favour of other defendants, therefore, the very suit is not maintainable, and prayed for dismissal of the suit.
4. After framing of the issues when the suit was posted for cross-examination, at that stage, the 3rd defendant filed an application I.A.No.31 under Order IX Rule 7 of the Code of Civil Procedure, to set-aside the ex-parte order dated 05.03.2009 placing him ex-parte and permit him to file written statement and contest the matter. The said application was resisted by the plaintiffs and defendants 6 and 7 by filing objections.
5. After hearing learned counsel for both the parties, the Trial Court by order dated 23.09.2016, rejected the application. Hence the present Writ Petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Y.R.Sadashiva Reddy, learned senior counsel representing Sri A.V.Nishant, learned counsel, for the 3rd defendant/petitioner vehemently contended that the impugned order passed by the Trial Court rejecting the application filed under Order IX Rule 7 of the Code of Civil Procedure is nothing but depriving an opportunity to the 3rd defendant to put forth his case and also contended that the learned Judge has not at all considered the documents filed by the 3rd defendant along with memo. Therefore, non consideration of the material documents vitiates the impugned order. He further contended that the Trial Court erred in observing that when the matter is posted for evidence, at that stage, the 3rd defendant filed the application. It is submitted that the Trial Court cannot reject the application on the ground that the matter is at the stage of evidence. By way of the present application he wanted to file counter claim to bring correct facts to the notice of the Court. Therefore, sought to set-aside the impugned order.
8. Per contra, Sri S.K.Acharya, learned counsel for the respondent Nos.3 to 7 and Sri P.Karunakar, learned counsel for the respondents 8 and 9 sought to justify the impugned order passed by the Trial Court and specifically contended that the Trial Court has protected the interest of the 3rd defendant/petitioner even though he has not filed written statement, within time. Inspite of service of notice he did not appear and therefore, was placed ex-parte. Now, application filed at a belated stage cannot be considered. The Trial Court specifically recorded a finding that though the plaintiffs have filed the objections to the application filed by 3rd defendant, they are not denying the right of the 3rd defendant in the suit schedule property. Whereas, the plaintiffs in paragraph 4 of the plaint have stated that defendant Nos.1 to 3 are having 1/5th share and plaintiffs are having 2/5th share in the suit schedule property. The interest of the petitioner/3rd defendant is also protected in the plaint as well as in the objections to the I.A. Therefore, the 3rd defendant cannot be allowed to file the application at a belated stage that too after lapse of 8 years. Therefore, sought for dismissal of the writ petition.
9. Sri Anjaiah and Chithappa, learned counsel for respondents 1 and 2/ plaintiffs not disputed the fact that they have admitted the right of the 3rd defendant in paragraph 4 of the plaint admitted 1/5th share of defendants 1 to 3.
10. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration is-
(a) Whether the impugned order passed by the Trial Court is justified in the facts and circumstances of the case?
(b) Whether the impugned order passed by the Trial Court has protected the interest/rights of the 3rd defendant in respect of the suit schedule property?
11. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties.
12. It is an undisputed fact that the present respondent Nos. 1 and 2 are the plaintiffs before the Trial Court, filed suit for partition and separate possession of 2/5th share and also declaration that several sale deeds, as null and void and not binding on them. The respondents 3 to 7, 8 and 9 who are defendants 3 to 7, 8 and 9 before the Trial Court denied the plaint averments and contended that the 3rd defendant who is brother of the plaintiffs executed registered sale deed in favour of defendant Nos.3 to 7 and other defendants.
13. It is also not in dispute that when the matter was posted for cross-examination of defendants the present application under Order IX Rule 7 of Code of Civil Procedure filed by the 3rd defendant praying to set-aside the order dated 05.03.2009 and for permission to file written statement. The said application is rejected by the Trial Court by the impugned order, and specifically recording a finding that the plaintiff has admitted the right and interest of the 3rd defendant in respect of the suit schedule property to an extent of 1/5th share. When the plaintiffs have admitted the 3rd defendant's share, the Trial Court is justified in rejecting the application.
14. At this stage, Sri Sadashiva Reddy, learned Senior Counsel for the petitioner/3rd defendant fairly submits that the Trial Court has not allowed the application permitting the 3rd defendant to file the counter claim, the application I.A.No.31 may be treated as written statement filed and without leading any further evidence on the statement or any issues, permitting the 3rd defendant to cross examine the defendants in the suit at the stage where the it is stopped. The said submission is placed on record.
15. For the reasons stated above, the Trial Court is justified in rejecting the application filed by the 3rd defendant under Order IX Rule 7 of the Code of Civil Procedure to set-aside the ex-parte order dated 05.03.2009 and hence the point No.1 is answered in the affirmative and point No.2 is also answered in the affirmative holding that the Trial Court has protected the interest of the petitioner/3rd defendant in the impugned order specifically observing that "whereas in the plaint, the plaintiffs in paragraph 4 have stated that the defendants 1 to 3 having 1/5th share in the suit schedule property and the plaintiffs are having 2/5th share in the suit schedule property". The statement made by the learned counsel for the plaintiff, observations made by the learned Judge as well as the statement made in paragraph 4 of the plaint is not disputed either by the plaintiffs or by the respondents before this Court and the same is also not disputed by the other defendants.
16. Be that as it may, taking into consideration the entire facts and circumstances of the present case, it is suffice to observe that the Trial Court shall treat the counter claim as written statement of the 3rd defendant without framing any issues on the said statement as same is nothing but reiteration of plaint averments by the plaintiffs, and without leading any further evidence, the trial court shall consider the counter claim as written statement and permit the 3rd defendant to crossexamine the other defendants at the stage where it was stopped.
17. In view of the aforesaid reasons the writ petition is disposed of.
18. Taking into consideration the dispute between the parties and suit is filed for partition and separate possession and cancellation of several sale deeds and in view of the direction issued by this Court in MFA No.3798/2013 dated 17.08.2015 wherein the present petitioner was 5th respondent, directing the Trial Court to dispose of the suit within 8 months from the date of judgment, till today Trial Court has not disposed of the suit because of intervening application filed by the parties, it is a fit case to direct the Trial Court to expedite the proceedings in O.S.No.853/2008 and decide the suit as early as possible within an outer limit of three months from the date of receipt of copy of this order. It is made clear that any observations made by this Court or Trial Court shall not come in the way either of the parties in establishing the rights independently, in accordance with law.