Karnataka High Court
Mallappa S/O Rama Cougule, vs Gurusidda on 17 December, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CIVIL REVISION PETITION NO.100051 OF 2016
BETWEEN
1. MALLAPPA S/O. RAMA COUGULE,
AGED ABOUT 71 YEARS,
R/O: BHUTARAMANHATTI,
TALUK & DISTRICT: BELAGAVI.
2. MARUTI S/O. RAMA COUGULE,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
R/O: BHUTARAMANHATTI,
TALUK & DISTRICT: BELAGAVI.
... PETITIONERS
(BY SRI. Y LAKSHMIKANT REDDY, ADVOCATE)
AND
1. GURUSIDDA S/O NINGAPPA KAMATI,
DEAD, RESPONDENTS NO.2 TO 4 ARE
TREATED AS L.Rs OF
DECEASED RESPONDENT NO.1
IN VIEW OF THE ORDER DATED 02.12.2016
PASSED ON I.A.NO.2/2016.
2. SMT.GANGAVVA
W/O GURUSIDDA KAMATI,
AGED ABOUT 68 YEARS,
OCC: HOUSEHOLD,
R/O: BHUTARAMANHATTI,
TALUK & DIST: BELAGAVI.
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3. SMT.BASAVVA
W/O. NINGAPPA GODAGERI,
AGED ABOUT 38 YEARS,
OCC: HOUSEHOLD,
R/O: BHUTARAMANHATTI,
TALUK & DIST: BELAGAVI.
4. MISS. LAXMAVVA
D/O. GURUSIDDA KAMARI,
AGED ABOUT 28 YEARS,
OCC: HOUSEHOLD,
R/O: BHUTARAMANHATTI,
TALUK & DIST: BELAGAVI.
... RESPONDENTS
(BY SMT. SUNANDA P. PATIL, ADV., FOR R2 TO R4)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF C.P.C., AGAINST THE ORDER DATED
03.11.2015 PASSED IN MISC. PETITION NO.12/2013 ON THE
FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND
C.J.M., BELAGAVI, REJECTING THE PETITION FILED UNDER
ORDER IX RULE 4 OF C.P.C.
THIS CIVIL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition has been filed by the petitioner- plaintiff challenging the order dated 03.11.2015 passed by the III-Additional Senior Civil Judge and C.J.M., Belagavi in Miscellaneous Petition No.12/2013.
2. I have heard the learned counsel appearing for the parties. It is the submission of the learned counsel for :3: the petitioners-plaintiffs that the impugned order of the Court below is not in accordance with law and the same is liable to be set aside. He further submitted that the petitioners/plaintiffs have filed a suit for specific performance by paying Court fee of Rs.45,675/- and the counsel appearing on their behalf did not inform them about the adjourned dates and Court below noted the absence of the learned counsel for the plaintiffs as well as plaintiffs and dismissed the case for non-prosecution. He further submitted that though the petitioners-plaintiffs have attended the Court below, but because of lack of communication, plaintiffs were present before the Court and without their fault, the case came to be dismissed by the Court below. He further submitted that the case is not heard and decided on merits and if it is not heard and decided on merits, the petitioners/plaintiffs will be put to greater hardship and inconvenience. On these grounds he prayed to allow the petition.
3. Per contra, the learned counsel appearing for the respondents vehemently argued and contended that :4: no grounds are made out in the present petition. Even false allegations have been made against the counsel, who was appearing on behalf of the plaintiffs before the Court below. She further submitted that in the petition, it has been falsely submitted that their counsel instructed them that they should be present before the Court as and when requirement is necessary and that he will inform them but subsequently their presence was not requested and as such, they were not present before the Court below and without their fault the case came to be dismissed. She further submitted that the conduct of the plaintiffs as well as their counsel, is not fair. Under the said facts and circumstances, the petition may be dismissed.
4. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and also perused the records.
5. During the course of arguments, the learned counsel for the respondents brought to the notice of this Court that in the grounds urged in the present petition, :5: there are no specific grounds made out to set aside the order of the Trial Court. It is true that no specific grounds are made out in the present petition but during the course of the arguments, the learned counsel for the petitioners by relying upon the documents has submitted grounds and the same have been taken up in order to meet the ends of justice. It is well settled principles of law that the matter has to be heard and decided on merits, as far as possible, in order to meet the ends of justice.
6. In that light, the oral submissions, which have been made by the learned counsel appearing for the petitioners have been taken into consideration. As could be seen from the records, the Trial Court granted temporary injunction on 02.06.2011 and thereafter the matter was posted on 26.06.2011, 07.07.2011, 25.07.2011 and written statement and objections were filed and an application was also filed on 09.08.2011 to vacate the injunction order. On 29.09.2011, as the plaintiffs did not turn up, the interim order ordered to be vacated. Subsequently, the learned counsel for the :6: plaintiffs was heard in part and matter was posted to 01.10.2011 and on 22.10.2011 the interim order was vacated noting failure on the part of the plaintiffs to advance their arguments and again the case was posted on subsequent dates. The advocate for the plaintiffs and plaintiffs have failed to argue on I.A.No.1 and the matter was dismissed for non-prosecution. The observation of the Court below clearly goes to show that the matter was heard on I.A.No.1 for vacating the temporary injunction. If the learned counsel for the plaintiffs or plaintiffs failed to appear before the Court, then under such circumstances, the Court below ought to have vacated the temporary injunction and ought to have posted the matter for evidence, after framing issues. Instead of doing so, when the matter was posted for hearing on I.A.No.1, the Trial Court has directly dismissed the case for default. This aspect has not been properly considered and appreciated by the Court below. Taking into consideration, the above said facts and circumstances, I feel it just and proper that the matter requires consideration. Though an application :7: was also filed before the Trial Court under Order IX Rule 4 of CPC to restore the suit, but the Trial Court has erroneously passed the order by holding that the conduct of the plaintiffs and their counsel is not in accordance with law. That is not a ground to dismiss the main matter.
7. Taking into consideration the above said facts and circumstances, the petition is allowed and the order dated 03.11.2015 passed by the III Additional Senior Civil Judge and C.J.M., Belagavi in Miscellaneous Petition No.12/2013 is set aside and O.S.No.91/2011 is restored to its original file. The Trial Court is hereby ordered to proceed with the matter by giving full opportunity to both the parties, in accordance with law.
8. Since the petitioners have not made out any good ground, even their conduct is also unfair, under the said facts and circumstances, an amount of Rs.5000/- is imposed as a cost, payable to the respondents/ defendants. The payment of cost is condition precedent in order to restore the original suit.
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9. The said cost may either be given to the learned counsel appearing in this Court or before the Trial Court and he is directed to file an acknowledgment for having paid the said amount.
Sd/-
JUDGE yan