VENKATALAKSHMI ALIAS RATHNAMMA Vs. BAYAMMA

JUDGEMENT

(1.) This civil revision petition is directed against the fair and decretal order dated 17.12.1996 made in C.M.A.No.16 of 1996 by the Court of Subordinate Judge, Hosur thereby confirming the fair and decretal order dated 18.03.1994 made in I.A.No.253 of 1990 in O.S.No.89 of 1978 by the Court of District Munsif, Hosur on certain grounds, such as that both the Courts below have erred in rejecting the application to set aside the exparte decree made against the petitioner, particularly when the petitioner was shown to be a minor on the date of passing of the exparte decree and the petitioner not being aware of the pendency of the litigation; that the Courts below have erred in holding the contention of the petitioner regarding her relationship with her mother was not cordial is unbelievable and has rejected the same; that the 5th defendant to the suit, the petitioner's mother was appointed as guardian in the suit and she engaged an Advocate and filed the written statement and subsequently, she did not evince any interest in the suit when it was taken up for trial and they both have been set exparte, while other defendants contested the suit resulting in the suit being decreed on 07.06.1982 which the Courts below has failed to appreciate; that the Courts below have failed to appreciate that the petitioner was born on 22.10.1962 and she attained majority on 22.10.1980 and despite the same, the first respondent/plaintiff had failed to take any step in the suit to declare the petitioner as a major and even in the decree dated 07.06.1982, the petitioner was shown only as a minor; that the Courts below have failed to note that the subsequent appeal in A.S.No.76 of 1982 filed by the other respondents before the appellate Court, the petitioner has been shown only as a minor and not as a major and notice of appeal was not served on her and therefore, she could not appear in the said appeal at all; that the petitioner came to know of the decree passed in O.S.No.89 of 1978 only on 21.02.1990 when she was informed of the petition filed in I.A.No.861 of 1987 by the first respondent for a final decree; that immediately the petitioner after knowledge, filed I.A.No.253 of 1990 in the suit which the Court has failed to appreciate it; that the Courts below have failed to appreciate that the petitioner is entitled to 1/3rd share in all the properties of Chinna Muni Reddy, which was accepted by the first respondent/ plaintiff in an earlier suit in O.S.No.44 of 1974 on the file of District Munsif, Hosur and suppressing the same, the first respondent has filed the present suit and hence, she deliberately did not take any step to declare the petitioner as major in a fraudulent manner; that the Courts below erred in holding that the application under Order IX Rule 13 C.P.C. is not maintainable and the remedy lies only by way of appeal when the petitioner was only set exparte in the suit as it abundantly comes to be known; that the lower appellate Court has not appreciated the decision reported in A.I.R. 1969 Orissa 52 (Manoranjan Samanta Kumar v. V.Brundabati Veergam) but has erred in relying on the decision reported in A.I.R. 1985 Calcutta 164 (Partosh Kumar Gangully v. Smt. Sitala Bala Ghosh and others) and A.I.R. 1976 Madras 262 (Sherija Bi v. V.Pillai) thereby in view of the fact that the petitioner was not aware of the proceedings and was therefore unable to appear in the suit and apply for discharge of the guardianship on such and other grounds, the petitioner would pray to set aside and revise the fair and decretal order dated 17.12.1996 made in C.M.A.No.16 of 1996 by the Court of Subordinate Judge, Hosur thereby confirming the fair and decretal order dated 18.03.1994 made in I.A.No.253 of 1990 in O.S.No.89 of 1978 by the Court of District Munsif, Hosur allowing the civil revision petition.

(2.) Since it is a matter of vital importance and an order made in the above C.R.P. at the earliest would serve the ends of justice, this Court expediting the procedures, has decided the matter in an expeditious manner.

(3.) It is a case concerned with the petitioner, who was a minor at the time the first respondent filed the suit in the Court of original jurisdiction in O.S.No.89 of 1978, which is a suit for partition and separate possession of the suit properties said to have been left by one Chinna Muni Reddy in which the petitioner is said to be having 1/3rd definite share, no mention need be necessary that the petitioner is a vitally interested party to the suit. The petitioner is the 6th defendant to the suit and since she was a minor at the time of filing of the suit, the first respondent/plaintiff has taken steps to appoint her mother as a guardian of the petitioner and in fact her mother is also a party to the suit proceedings as the 5th defendant.