Prabhamani vs Kamala J.S.

A.S. Bopanna, J.—Petitioner is before this court assailing the order dated 10.9.2014 passed on I.As. 12 and 13 impugned at Annexure-G to the petition.

Petitioner herein is the 2nd defendant in O.S. 6747/05. The suit has been filed seeking for a judgment and decree of specific performance. Parties have put forth their pleading, tendered evidence and the case is at the stage of arguments. At this stage, defendant No. 2 has filed the application in I.A. 12 under Section 151, C.P.C. seeking leave to file written statement and I.A. 13 under Order IX Rule 7, C.P.C. seeking that the order dated 4.1.2006 placing defendants 2 and 4, namely petitioner and her sister ex parte, be recalled.

The applications have been opposed by the plaintiff.

The court below, by the impugned order, has rejected the applications.

Heard learned counsel for the parties and perused petition papers.

A perusal of the order impugned would disclose that the court below while taking note of the contentions put forth in the accompanying affidavit in support of I.As. 12 and 13, has taken note of the sequence of events prior to the filing of the instant applications. In the reasons assigned seeking recall of the order, the 2nd defendant contends that the 1st defendant who is her mother was prosecuting the suit and presently since she is of the opinion that it has not been prosecuted in a proper manner and further since the 1st defendant is aged, the 2nd defendant is required to put forth her contentions and contest the suit. It is in that view, she seeks that the order placing her ex parte be recalled and opportunity be given to her to file written statement and contest the suit.

While taking note of such request, what is necessary to be noticed is that the court below has referred to the earlier applications that had been made on behalf of defendants in I.As. 8 and 9 when the case had been posted for arguments, and subsequent applications filed in I.As. 10 and 11 which were dismissed and later upheld by this court in W.P. 49167/13 c/w W.P. 5784/13.

In that light, even if the contention as put forth by the plaintiff is taken into consideration, what cannot be lost sight is, the suit is of the year 2005. The 2nd defendant had been placed ex parte on 4.1.2006. The very nature of the reason assigned seeking recall would disclose that the 2nd defendant was aware of the fact that she had been placed ex parte and had reposed confidence in the 1st defendant to prosecute the suit. Therefore in such circumstances, the explanation put forth to recall the order dated 4.1.2006 cannot be accepted as sufficient cause. No other material has been produced to indicate that there is conflict of interest between the 1st defendant and the petitioner herein. In such circumstances, mere statement at this juncture that the 1st defendant is not prosecuting the case properly, cannot be accepted to negate the entire proceedings and re-open the case by providing an opportunity to the 2nd defendant to appear and file written statement, which would mean that the evidence would have to be once again adduced as it may lead to framing of additional issues. Therefore, such procedure cannot be undertaken in the present suit since in any event, the contention urged to rebut the claim of the plaintiff has already been urged and the court below would decide the suit on its merits.

Therefore when the court below has taken note of the entire circumstances and has thereafter arrived at a conclusion that the applications cannot be allowed, I see no reason to interfere with the said order.

Accordingly the petitions being devoid of merit, stand disposed of.