- 1 - NC: 2025:KHC:8967 WP No. 34401 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 34401 OF 2018 (GM-CPC) BETWEEN: SRI M. G. MARIYAPPA S/O. LATE. SANNAIAH @ GIRIYAIAH, AGED ABOUT 76 YEARS, AGRICULTURIST, R./AT MADARAHALLI VILLAGE, ARAKERE HOBLI, SRIRANGAPATNA 571 438. …PETITIONER (BY SRI. SHANKARANARAYANA BHAT N., ADV.) AND: 1. SMT. JAYAMMA W/O. KARIYAIAH, AGED ABOUT 52 YEARS, 2. SRI. M G GOVINDAIAH S/O. LATE. SANNAIAH @ GIRIYAIAH. DEAD BY LRS, SMT. LAKSHMAMMA, W/O. LATE. M.G. GOVINDAIAH, AGED ABOUT 77 YEARS, 3. SRI. VEERABHADRA S/O. LATE. M.G. GOVINDAIAH, AGED ABOUT 47 YEARS, 4. SRI. RAJA S/O. LATE. M.G. GOVINDAIAH, AGED ABOUT 37 YEARS, Digitally signed by ROOPA R U Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8967 WP No. 34401 of 2018 5. SRI. RAMA S/O. LATE. M.G. GOVINDAIAH, AGED ABOUT 37 YEARS, 6. SRI. NARAYANAMURTHY S/O. LATE. M.G. GOVINDAIAH, AGED ABOUT 52 YEARS, 7. SMT. CHANDRAKALA D/O. LATE. M.G. GOVINDAIAH, AND W/O. SIDDAIAH, MAJOR, R/AT GOPALAPURA VILLAGE, T. NARASIPURA TALUK, MYSORE TALUK, 571 124 8. SMT. KAMALAMMA D/O. LATE. M.G. GOVINDAIAH, AGED ABOUT 47 YEARS, 9. SMT. RENUKA D/O. LATE. M.G. GOVINDAIAH, AND SIDDARAJU, MAJOR, FRUIT VENDOR, R./AT 10TH CROSS, GANDHI NAGARA, MANDYA-571 401. RESPONDENTS 1 TO 6 AND 8 ARE AGRICULTURISTS AND R/O MADARAHALLI VILLAGE, ARAKERE HOBLI, SRIRANGAPATTANA TALUK-571 438. …RESPONDENTS (V/O DATED: 28/6/2023 NOTICE TO R2 TO R6 AND R8 IS H/S; R9 - SERVED) - 3 - NC: 2025:KHC:8967 WP No. 34401 of 2018 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, SRIRANGAPATNA IN MIS.NO.15/11 DATED 16.09.2015 VIDE ANNX-D AND THE JUDGMENT AND ORDER PASSED BY THE COURT OF 3RD ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT SRIRANGAPATNA) IN M.A.NO.5123/2015 DATED 28.03.2018 MARKED AS ANNEXURE-G BY THE ISSUE OF WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT AND ALLOW THE WRIT PETITION WITH COSTS AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER 1. The petitioner herein is the defendant No.2 in a suit in O.S.No.233/2007 which is filed by one Smt. Jayamma - respondent No.1 herein for relief of partition and separate - 4 - NC: 2025:KHC:8967 WP No. 34401 of 2018 possession against the petitioner herein and his brother Sri. M.G. Govindaiah. 2. Case of the petitioner is that the above suit was filed by respondent No.1 herein contending that one Giriyaiah was the propositus. He had two sons by name Mantaiah and Vaddaiah. Said Mantaiah had a son by name Kariyaiah who was the husband of respondent No.1/plaintiff. Second son Vaddaiah had two sons who are defendant Nos.1 and 2 respectively. The suit schedule properties were admittedly joint family properties. Upon the demise of said Mantaiah and Vaddaiah, Mantaiah's son Kariyaiah on one side and Vaddaiah's sons i.e. defendant Nos.1 and 2 on the other, became entitled for half share each respectively, in the suit properties. 3. Respondent No.1/plaintiff being the wife of Kariyaiah has filed the above suit contending that upon demise of Kariyaiah, she became entitled for her husband's half share in the suit schedule properties. Petitioner and his brother i.e. defendant Nos.1 and 2 were served with notice/summons in the suit who had engaged the services of respective counsel. However, only - 5 - NC: 2025:KHC:8967 WP No. 34401 of 2018 defendant No.1 had filed written statement and contested the suit. The suit has been decreed as sought for allotting half share to the plaintiff, in the suit schedule properties. 4. The Decree has not been challenged by defendant No.1 and the same has attained finality. However, the petitioner herein/defendant No.2 had filed an application under Order IX Rule 13 of CPC seeking to set aside the said Judgment and Decree dated 21.07.2010 on the premise that the same had been passed without he having an opportunity to contest the suit. The reason assigned in the said application is that he was suffering from jaundice for two years and therefore, he could neither instruct or prosecute the matter. The said application in Mis.No.15/2011 was contested by respondent No.1/plaintiff and the same came to be rejected by Order dated 16.09.2015 (Annexure-D). Being aggrieved by the same, petitioner herein filed a Miscellaneous Appeal in M.A.No.5123/2015. The said Miscellaneous Appeal came to be dismissed confirming the Order passed in Mis.No.15/2011. Being aggrieved by the same, the petitioner/defendant No.2 is before this Court. - 6 - NC: 2025:KHC:8967 WP No. 34401 of 2018 5. Learned counsel for the petitioner/defendant No.2, reiterating the grounds urged in the memorandum of petition, submits that the Trial Court and the First Appellate Court could not have dismissed the application on technicalities that petitioner is not able to produce the medical records in-as- much as right of parties in respect of immovable properties is involved and petitioner/defendant ought to have been given sufficient opportunity in the matter and accordingly, learned counsel seeks for allowing the Writ Petition. 6. Perusal of the record would indicate that claim in the suit filed by the respondent No.1 plaintiff for half share in suit schedule properties through her husband late Kariyaiah is not disputed by the defendants. However, only defence set up was that the said respondent No.1/plaintiff had executed relinquishment deed on 24.01.2003. Since relationship between the parties and nature of the properties has been admitted by defendant No.1 and he had neither cross-examined nor rebutted the evidence and he had also not produced any document of relinquishment deed, the Trial Court decreed the suit as sought for. - 7 - NC: 2025:KHC:8967 WP No. 34401 of 2018 7. As noted above, the said Decree has not been challenged. However, the petitioner herein who was defendant No.2, though had engaged the services of a counsel, had not filed written statement or contested the Suit. The reason assigned is that he was suffering from jaundice. 8. The Trial Court, in its Order dated 16.09.2015 passed in Mis.No.15/2011, after having gone through the records in O.S.No.233/2007, found that the petitioner herein who had appeared before the Court on 08.07.2008 had not filed written statement for about two years. He neither contested the suit by subjecting the plaintiff for cross-examination, nor had led any evidence. The Trial Court has also found that except stating that he was suffering from jaundice, no material evidence was produced with regard to his illness disabling him to contest the Suit. 9. The Trial Court has found that despite having provided sufficient opportunities, defendant No.2 was not diligent in defending the Suit, accordingly, rejected the application in Mis.No.15/2011. Reiterating the reasons noted in the said Order, the First Appellate Court by its Judgment dated - 8 - NC: 2025:KHC:8967 WP No. 34401 of 2018 28.03.2018 passed in M.A.No.5123/2015, confirmed the said Order and rejected the Appeal. 10. The Trial Court and the First Appellate Court have rejected the application of the petitioner on the ground of he not having produced any document with regard to his illness. Even in the present Writ Petition, he has not produced any document justifying the reason for he not keeping well. Considering the overall facts and circumstances of the matter and in the absence of the defendant No.2/petitioner providing sufficient reasons for setting aside the ex-parte decree, this Court does not find any reason for allowing the petition. 11. The application filed by the petitioner/defendant No.2was under Order IX Rule 13 of Code of Civil Procedure, which contemplates that if the applicant satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. It is not the case of the petitioner - 9 - NC: 2025:KHC:8967 WP No. 34401 of 2018 herein that he was not served with the summons in-as-much as admittedly he was duly represented by his counsel. The second reason of he being prevented from participating in the suit is also not justified by producing any evidence in the matter. 12. No grounds are made out calling for interference by this Court. The order passed by the Trial Court and the First Appellate Court does not suffer from any illegality on irregularity. Accordingly, the Writ Petition is dismissed. Sd/- (M.G.S. KAMAL) JUDGE sac List No.: 1 Sl No.: 10