NARAYANAMMA Vs. RATNAMMA

JUDGEMENT

(1.) The defendant No.4 filed the present writ petition against the Order dated 11.07.2017 made in O.S.No. 1374/2006 dismissing I.A.No.11 filed by the 4th defendant under Order 9, Rule 7 of Code of Civil Procedure.

(2.) The first respondent herein who is the plaintiff, filed suit for partition and separate possession of suit schedule properties contending that the plaintiff and defendant Nos.1 to 4 are the members of the joint family and the suit schedule properties are the joint family properties and she is entitled to share. The defendant Nos.1 to 3 filed written statement and supported the case of the plaintiff. The fifth defendant who is the bonafide purchaser, filed written statement, denied the plaint averments and contended that the suit is not maintainable. When the matter was posted for arguments, at that stage, the fourth defendant filed an application to set-aside the Order dated 31.07.2012 placing her ex-parte, contending that she is resident of No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27, since from the date of her marriage. Instead of furnishing the said address, the plaintiff has given wrong address i.e., Ekarajipura village, Solibele Hobli, Hosakote Taluk, Bengaluru Rural District. None of the parties to the suit informed her about the proceedings. Recently she came to know about the pendency of the proceedings from her close relatives, when she visited the village. After collecting information, she made arrangements to file an application. The order sheet reveals that paper publication was also taken to the village address. Since the summons was not served, she was placed ex-parte. Therefore, the petitioner/4th defendant sought to allow the application. The said application was opposed by the fifth defendant alone, contending that the defendant Nos.1 to 3 are the sisters of 4th defendant and is well aware of the proceedings and has filed the application at belated stage. Therefore, sought dismiss the application.

(3.) The Trial Court, proceeded to dismiss the application mainly on the ground that, since the defendant Nos.1 to 4 are the children of deceased Hanumanthappa, it is highly improbable to believe that the plaintiff and defendant No.1 are contesting the matter without the knowledge of the fourth defendant. The fourth defendant, except contending that she has been residing at No.7/3, 7th Cross, Lakshmi Road, Shanthinagar, Bengaluru-27, has placed no material on record along with the application. Therefore, it can be presumed that as on the date of filing of the suit, the fourth defendant was residing at the address mentioned in the cause title and it is not the case of the fourth defendant that she is not in talking terms with her sister and there is any strained relationship between the sisters". Therefore, application came to be dismissed. Hence the present writ petition is filed.