Writ Petition No. 52685 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:161 WP No. 52685 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 52685 OF 2019 (GM-CPC) BETWEEN: AAKURTI ARCADE APARTMENT FLAT OWNERS ASSOCIATION NO.25, 13TH MAIN, BEHIND MEENAKSHI HOSPITAL SRINAGAR BENGALURU-560 050 A SOCIETY REGISTERED UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT, REPRESENTED BY ITS GENERAL SECRETARY K.R.SUBASH S/O K.RAJANNA AGED ABOUT 49 YEARS …PETITIONER
Facts
Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA
Legal Reasoning
technical manner, there is no dispute on that aspect. However it all depends upon the facts and circumstances of each case. In this case there are clear lapses on the part of the plaintiff and not appearing before the court after obtaining an order of temporary injunction has to be looked into. He cannot be permitted to drag on the proceedings in this manner. But at the same time court needs to look at the substantial justice or rather the injustice that would be caused to the parties. Balancing the interest of both the parties, this court is passing the following: 6. Accordingly the following:
Arguments
(BY SRI. G K BHAT, SENIOR COUNSEL A/W SMT.SUDHA D., ADVOCATE) AND: 1. BRUHAT BENGALURU MAHANAGARA PALIKE N.R.SQUARE BENGALURU BY ITS COMMISSIONER-560 032 2. THE ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE BASAVANAGUDI SUB DIVISION, BENGALURU-560 004 (BY SRI.B.V.MURALIDHAR, ADVOCATE) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 3.12.2019 PASSED BY THE LEARNED XL ADDITIONAL CITY - 2 - NC: 2025:KHC:161 WP No. 52685 of 2019 CIVIL AND SESSIONS MISC.905/2017 AS PER ANNEXURE-G. JUDGE, (CCH 41) BENGALURU, IN THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the orders passed in Misc.P.No.905/2017 dated 03.12.2019 passed by XL Addl. City Civil & Sessions Judge, Bengaluru whereby the suit is dismissed, the plaintiff is before this court. 2. The plaintiff has filed a suit bearing O.S.no.2860/2015 against the respondent-BBMP seeking injunction. Initially interim injunction is granted and later on 04.11.2017 the same is dismissed by the court for non-prosecution. While dismissing the same, the court observes that, inspite of sufficient opportunities given, plaintiff failed to proceed with the case. There are no grounds to adjourn the case and the suit is dismissed for non-prosecution. Thereafter Misc. Petition No.905/2017 is filed under order 9 rule 4 of CPC to recall the order dated 04.11.2017 and to restore O.S.No.2860/2015. The court below has observed that in the absence of the specific evidence on the part of the petitioner as to why he was - 3 - NC: 2025:KHC:161 WP No. 52685 of 2019 prevented from appearing before the court on the day when the case was called out for evidence his case cannot be considered. The court is of the further view that the plaintiff was not diligent in conducting the case due to negligence, carelessness on the part of the plaintiff in conducting the suit and the suit came to be dismissed for non prosecution. Accordingly the trial court had dismissed the petition. 3. Learned senior counsel appearing for the petitioner drawn the attention of the court to the docket proceedings it is submitted that the petitioner is vigilant all through and the advocate was not feeling well, they were not represented before the court. All these aspects were not considered and in a hyper technical manner the court had dismissed the petition. It is submitted that while considering the applications the court cannot have a strict approach and court should look at the substantial justice. 4. Learned counsel appearing for the respondent/ defendants submit that the court had rightly considered all the aspects and rightly dismissed the petition. He submits that there are no bonafides on the part of the plaintiff in prosecuting - 4 - NC: 2025:KHC:161 WP No. 52685 of 2019 the matter. He has approached the court in the year 2015 and has obtained an interim injunction, by virtue of the same the BBMP is not able to take action on the plaintiff. It is submitted that intentionally the plaintiff is dragging on the matter and had not appeared before the court. The trial court had rightly dismissed the petition and no grounds are made out to interfere with the well considered order passed by the court. 5. Having heard the learned counsel on either side, perused the entire material on record. The suit is of the year 2015, in that the court had granted interim injunction on 30.03.2015. Thereafter on 04.11.2017 the court had dismissed the petition for default. This court has perused the order sheet which is place before the court. From the order sheet it appears that the plaintiff was absent on several occasions. On 26.10.2017 the plaintiff was present and on 04.11.2017 he was again absent as in the earlier occasions. Hence the case was dismissed for default. It is the case of the plaintiff that counsel was not well as such he could not represent. The submission of the learned senior counsel for the petitioner that an application of this nature cannot be considered by the court in a hyper - 5 - NC: 2025:KHC:161 WP No. 52685 of 2019
Decision
ORDER i. The order in Misc. Petition No.905/2015 dated: 03.12.2019 passed by the XL Addl. City Civil & Sessions Judge, Bengaluru is set aside and the suit is restored to file on the condition that the plaintiff shall pay cost of ₹.5000/- to the respondents within a period of two weeks from the date of receipt of the copy of the order. - 6 - NC: 2025:KHC:161 WP No. 52685 of 2019 ii. The parties shall appear before the court on 28th January 2025, from thereon within three months the suit shall be disposed of by the court. iii. iv. Accordingly the writ petition is disposed off. All IA’s in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE TS List No.: 1 Sl No.: 38