The court established that in partition suits, fairness in adjudication requires allowing belated applications for contesting on merits, even when delays are present.

ORAL ORDER

1. The present writ petition is filed by defendant No.1 challenging the order dated 02.12.2024 dismissing I.A.Nos.46 and 47 in O.S.No.687/2011 on the file of the Senior Civil Judge, Malur.

2. The respondent Nos.1 to 3 / plaintiffs filed O.S.No.687/2011 for partition and separate possession. The petitioner was arrayed as defendant No.1 in the said suit. Notice of the suit was served on the petitioner / defendant No.1 and she was placed exparte in the suit on 16.01.2012. Subsequently, the petitioner filed I.A.No.46 under Order IX Rule 7 r/w Section 151 of CPC., to set-aside the exparte order and I.A.No.47 seeking permission to file the written statement. The Trial Court by the said order dated 02.12.2024 dismissed I.A.Nos.46 and 47 on cost of Rs.500/- each. Being aggrieved, the present writ petition is filed.

3. Heard the submissions of the learned senior counsel Sri.Vigneshwara Shastri appearing along with learned counsel Smt.Aishwarya Hege M.V, for the petitioner and Sri.Rasheed Khan, learned counsel for respondent Nos.1 to 3.

4. The Trial Court while rejecting the applications has held that after many years the defendant No.1 has filed the application to set-aside the exparte order. The defendant No.1 vide the affidavits filed in support of I.A.Nos.46 and 47 has deposed that due to her old age and illiteracy she was unable to engage a counsel and thereafter, she has engaged the counsel and filed the applications. It is submitted that the written statement has been filed along with I.A.No.47.

5. I.A.Nos.46 and 47 have been filed belatedly and the reasons set-forth in the affidavits filed along with the applications do not explain the inordinate delay. However having regard to the fact that the suit is one for partition and valuable rights of the parties will have to be adjudicated in the suit, it is just and proper that the defendant No.1 be afforded an opportunity to contest the suit on merits. In view of he same, it is just and proper that the request made by the defendant No.1 vide I.A.Nos.46 and 47 be granted, subject to certain terms.

6. Hence, the following;

ORDER

(i) The writ petition is allowed

(ii) The order dated 02.12.2024 passed on I.A.Nos.46 and 47 in O.S.No.687/2013 on the file of the Senior Civil Judge, Malur is set-aside

(iii) I.A.Nos.46 and 47 filed in O.S.No.687/2013 are allowed, subject to the petitioner / defendant No.1 paying cost of Rs.5,000/- (Rupees five thousand only) each, to the respondent Nos.1 to 3 / plaintiffs (ie., cumulative sum of Rs.15,000/- to the plaintiffs) before the Trial Court, within two weeks from today.

(iv) The written statement filed by the defendant No.1 along with I.A.No.46 shall be taken on record by the Trial Court. Consequent to the written statement being taken on record by the Trial Court, it shall conduct further proceedings in the suit in accordance with law.