SMT. SARBATI DEVI GOINKA Vs. DURGA PRASAD AGRAWAL

JUDGEMENT

(1.) Invoking jurisdiction under Article 227 of the Constitution of India, in this Writ Petition the Petitioner has challenged the Order Dated 21.1.2008 passed by the Learned Civil Judge (Senior Division), Bhawanipatna in Civil Suit No. 81 of 2005 rejecting the petition filed by the Defendant to accept the written statement which was filed beyond the period of 90 days.

(2.) As per the pleadings of the plaint, the Plaintiff's case is that the present Opposite Party as Plaintiff filed Civil Suit No. 81 of 2005 in the court of Learned Civil Judge (Senior Division), Bhawanipatna for partition. The relationship between the Defendant -Petitioner and the Plaintiff -Opposite Party is sister and brother. According to the Plaintiff, both of them jointly purchased the suit land from out of their separate funds and they are the joint owners of the suit land. They jointly made construction over an area of Ac.0.26 decs. for their residence. On 1.3.2005, the Plaintiff personally and through his power of attorney holder requested the Defendant to effect a partition of the suit land in two equal shares so that the Plaintiff would be able to sell his share without causing any inconvenience to the Defendant. Since the Defendant did not respond, the Plaintiff filed the suit.

(3.) Though in this case notice was issued to the Opposite Party by registered post with A.D. on 3.3.2008 and further proceeding in C.S. No. 81 of 2005 pending in the trial court was stayed till date the A.D. has not been returned. The record reveals that the address of the Opposite Party is correct which is as per the plant. Therefore, in view of the Proviso to Order 5, Rule 9(5) of the Code of Civil Procedure, the notice is treated as sufficient.