SMT. THIMMAJAMMA v. SRI. KARIYAPPA @ KARIYANNA

SRI. KARIYAPPA @ KARIYANNA S/O. LATE SRI GAVIAPPA SINCE DEAD ON 14.10.2017 REP. BY LEGAL REPRESENTATIVE - RESPONDENT NO.4.

SMT. LAKSHMAMMA W/O. LATE GOVINDAPPA MAJOR GANGONDANAHALLI VILLAGE, LAKSHMIPURA POST, DASANAPURA HOBLI, BANGALORE NORTH TALUK BANGALORE-560 073

SRI RAJU R S/O LATE RAMANJANAPPA AGED ABOUT 46 YEARS RESIDING AT NO.272 10TH CROSS, 2ND PHASE, MANJUNATHANAGAR Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:13690 WP No. 59135 of 2016 BANGALORE-560 010

SRI. RAJA S/O KARIYAPPA @ KARIYANNA AGED ABOUT 32 YEARS, GANGONDANAHALLI VILLAGE, LAKSHMIPURA POST, DASANAPURA HOBLI, BANGALORE NORTH TALUK, BANGALORE-560 073 (BY SRI. T.H.NARAYANA, ADVOCATE FOR RESPONDENT NO.3; NOTICE SERVED ON RESPONDENT NOS.2 AND 4; RESPONDENT NO.1 IS DECEASED) …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN MISC.PETITION NO.8/2009 ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT AND SET ASIDE THE ORDER DATED 16.09.2016 PASSED ON I.A. FILED UNDER SECTION 5 OF THE LIMITATION ACT VIDE ANNEXURE-A AND THEREBY DISMISSING THE MAIN PETITION FILED UNDER ORDER 9 RULE 4 OF CPC AND RESTORE THE SAME TO FILE WITH A DIRECTION TO THE TRIAL COURT TO DISPOSE OF THE CASE ON MERITS AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner in Misc. No.8/2009 on the file of the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru has filed this petition challenging the correctness of - 3 - NC: 2024:KHC:13690 WP No. 59135 of 2016 an order dated 16.09.2019, by which, the petition was dismissed.

2. The petitioner had filed O.S.No.1139/2005 for specific performance of an agreement of sale dated 04.12.2023 and alternatively sought for refund of Rs.2,50,000/- being the part of the agreed sale consideration, paid to the defendants. During the pendency of the suit, the plaintiff died on

25.11.2005. The petitioner claimed that the plaintiff had executed a Will in his favour and therefore, he was impleaded for the purpose of representing the estate of deceased plaintiff. The suit was posted on 14.07.2008 for taking steps to defendant No.1 and thereafter was posted on 24.10.2008. As the Presiding officer was on leave, the case was posted to

07.11.2008. However, since there was no representation and no steps were taken, the suit against defendant No.1 was dismissed on 07.11.2008 and the case was posted for evidence on 25.11.2008 again on 25.11.2008, the petitioner was absent. Hence, the suit was dismissed for non-prosecution. The petitioner therefore, filed a petition under Order IX Rule 4 of Civil Procedure Code. The petition was contested by the respondents herein. An application filed for condonation of - 4 - NC: 2024:KHC:13690 WP No. 59135 of 2016 delay in filing the miscellaneous petition was also contested by the respondents.

3. The Trial Court recorded the evidence of the petitioner as PW.1 and he marked Exs.P1 to P3. The petitioner also examined a witness as PW.2. Based on the oral and documentary evidence, the Trial Court held that there was a delay of 30 days in filing the petition and that the petitioner had not satisfactorily explained the delay. Consequently, it rejected the application and also dismissed the petition filed by the petitioner.

4. Being aggrieved by the said order, the petitioner is before this Court.

The learned counsel for the petitioner contended that there was a delay of 30 days in filing the petition and the petitioner had stated before the Court that the delay was due to a wrong noting of the date of hearing before the Trial Court by the advocate for the petitioner. He submitted that PW.2 was the advocate who prosecuted the suit in O.S.No.1139/2005 and he deposed that he did not know whether he appeared before the Court on 25.11.2008. He therefore, contended that the - 5 - NC: 2024:KHC:13690 WP No. 59135 of 2016 petition was filed within 30 days from the date of PW.2 coming to know about the dismissal of the suit for non-prosecution. He further contends that the Trial Court ought to have liberally considered the application for condonation of delay, in view of the substantive relief claimed by the petitioner in the suit.

Per contra, the learned counsel for the respondents contended that the Trial Court felt that the explanation offered for the delay was not satisfactory and therefore, no indulgence can be shown to the petitioner.

I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondents.

The petition was dismissed for non-prosecution on

25.11.2008. The petition for restoration of the suit was filed on

20.01.2009. It was stated in the affidavit accompanying the application for condonation of delay that PW.2 had wrongly noted the date of hearing as 07.01.2009 instead of 07.11.2008 and therefore, there was a mistake on the part of advocate. The reasons assigned for the delay is not improbable and having regard to the substantive relief sought for by the - 6 - NC: 2024:KHC:13690 WP No. 59135 of 2016 petitioner in the suit, an opportunity deserves to be granted to the petitioner to establish his case.

In that view of the matter, impugned order passed by the Trial Court rejecting the application for condonation of delay warrants interference.

Since the suit was dismissed on 25.11.2008, no purpose would be served in directing the parties to appear before the Trial Court and conduct further trial as to whether the petitioner was prevented by sufficient cause in appearing before the Court. Since this Court has accepted the reason for condonation of delay, it is appropriate that the miscellaneous petition is also allowed and the suit is restored for consideration on merits.

In that view of the matter, miscellaneous No.8/2009 is also allowed and the impugned order dated

16.09.2016 passed by II Additional Senior Civil Judge, - 7 - NC: 2024:KHC:13690 WP No. 59135 of 2016 Bengaluru Rural dismissing the suit in O.S.No. 1139/2005 is set aside and the suit is restored on the file of Trial Court.

The parties shall appear before the Trial Court on

25.04.2024 on which day, the petitioner shall, if necessary, take steps to restore the suit against defendant No.1 and shall go on with the evidence in the suit, failing which, the Trial Court shall dismiss the suit again for non-prosecution. This is however, subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand only) payable by the plaintiff to the defendants on the next date of hearing before the Trial Court. Sd/- JUDGE HJ List No.: 1 Sl No.: 21