A party cannot be denied the opportunity to defend their case in a partition suit post ex parte decree, provided prior orders allowing restoration have not been challenged.

ORDER :

Vijaykumar A. Patil, J.

This petition is filed seeking following reliefs,

"a) Call for records in O.S. No.437/2008 from file of the 2^nd Addl Civil Judge & JMFC at Malur, and set aside the order dated 10.03.2016 passed by the 2^nd Addl Civil Judge & JMFC at Malur (impugned as Annexure-A) and consequently restore O.S.No.437/2008 and dispose the suit in accordance with law.

b) Issue any other appropriate writ, order or direction as this Hon'ble Court deems it fit to grant under the facts and circumstances of the case, in the interest of justice and equity."

2. Heard Sri Vijaya Kumar K., learned counsel for the petitioner submits that respondent No.1 has filed a suit for partition and separate possession. The defendants filed their written statement. Later the plaintiff filed I.A.No.2 seeking to implead the petitioner as defendant No.7 in the said suit. Thereafter, petitioner-defendant No.7 appeared and sought time to engage the counsel. Thereafter, counsel has appeared before the Trial Court and on 16.07.2014, the Trial Court recorded that the petitioner is already on record and amended cause-title is also filed.

3. It is submitted that the suit came to be decreed ex-parte on 29.10.2014 and immediately the petitioner filed a miscellaneous petition in Misc.No.5/2015 before the said Court seeking to recall the judgment in O.S.No.437/2008. The said miscellaneous petition was allowed on payment of cost of Rs.3,500/-. On 05.11.2015, same cost was paid and notice was issued to the parties on the suit.

4. It is submitted that the Trial Court under the impugned order dated 10.03.2016, held that the defendant No.7 wrongfully filed Misc.No.5/2015 to set aside the judgment and decree and to restore the suit. Since the judgment is passed on 29.10.2014 and suit cannot be restored. Such an order of Trial Court is highly illegal, arbitrary and contrary to law.

5. It is further submitted that the order dated 17.10.2015 passed in Misc.No.5/2015 of the same Court was not challenged by anyone. The said miscellaneous petition was allowed on cost and the suit was restored. The Trial Court has failed to appreciate the same and suo-motu came to the conclusion that suit cannot be restored.

6. It is also submitted that the suit is for partition and the petitioner claims substantive right over the property. Hence, the matter is required to be tried on its merits and cannot be rejected merely on technicalities. In support of his contentions and to explain the scope of order under Order 9 Rule 13, he placed reliance on the decision of Court in the case of M/s. Kuvarp Industries, Bangalore and another vs. State Bank of Mysore , [ AIR 1985 KAR 77 ] and seeks to allow the petition.

7. Sri Kiran Gowda M., learned advocate for Sri Prasanna Kumar R.S., learned counsel appearing for respondent Nos.1, 2, 4 and 5 and Sri Muniyappa, learned counsel appearing for respondent No.6 support the impugned order of the Trial Court and submit that the Trial Court rightly came to the conclusion that the judgment and decree passed by the Trial Court on 29.10.2014 is not a ex-parte as the petitioner has participated in proceedings and could not file the written statement. Hence, the Trial Court by recording of the same rightly closed the suit.

8. It is submitted that the petitioner filed Misc.No.5/2015 under Order 9 Rule 9 of CPC, as evidenced by Annexure-F, the order sheet. The said miscellaneous petition itself is not maintainable, which has been rightly considered by the Trial Court and closed the proceedings, which does not call for any in