Karnataka High Court
M/S Shekarappa Kalakappa Shreegiri vs Shekhappa S/O Mallappa Waddatti on 5 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CIVIL REVISION PETITION NO.1016/2011
BETWEEN:
M/s. Shekarappa Kalappa Shreegiri,
Commission agent gadag by its Proprietor,
Shri. Shekarappa S/o. Kalakappa Shreegiri,
Age 59 years, Occ: Business and Agril.
R/o. Rajeev Gandhi Nagar,
4th Cross, Gadag, Dist. Gadag.
... Petitioner
(By Sri. Sharad V. Magadum, Advocate)
AND:
Shri. Shekhappa S/o. Mallappa Waddatti,
Age 46 years, Occ: Agrl.
R/o. Machenahalli, Tq. Shirahatti
...Respondent
(Respondent - Served)
---
This CRP is filed under Section 115 of CPC., against the
Judgment and order dated 09.09.2010 passed in Misc.
No.21/2009 on the file of the Addl. Senior Civil Judge,
Gadag, dismissing the petition filed under order IX, Rule - 4
of CPC.
CRP No.1016/2011
:2:
This petition coming on for Final Hearing through
physical hearing/video conferencing hearing this day, the
court made the following:
ORDER
The present petitioner/plaintiff has filed a recovery suit in S.C.No.60/2004 before the Addl. Senior Civil Judge, Gadag, (for short 'the Trial Court') against the present respondent/defendant for recovery of a sum of `21,500/-. The said case was posted for the evidence of the petitioner in the Trial Court on 16.09.2009. On the said date, an adjournment application was filed which was also rejected by the Trail Court. The Court dismissed the said suit for default. Seeking its restoration, the petitioner filed a petition under Order IX Rule 4 of CPC in the same Court which also came to be dismissed by the order of the Trial Court dated 09.09.2010. It is against the said order of the Trial Court passed in Misc. No.21/2009 dated 09.09.2010, the CRP No.1016/2011 :3: petitioner/plaintiff has filed the present civil revision petition.
2. In spite of service of notice, the respondent has remained un-represented.
3. Heard the arguments of the learned counsel for the petitioner. Perused the materials placed before this Court.
4. The only point that arises for my consideration is "Whether the impugned order warrants any interference at the hands of this Court?"
5. A perusal of the material placed before this Court would go to show that, the petitioner had given the reason of his ill-health and canvassed some medical grounds for his non-appearance before the Trial Court in S.C.No.60/2004 on 16.09.2009, when the matter was slated for recording his evidence. It is noteworthy that on the very same day, he has also filed an application CRP No.1016/2011 :4: seeking adjournment. However, the Trial Court has proceeded to reject the application and also dismissed the suit for default. Observing that prior to the said date, the Trial Court had granted the plaintiff a sufficient time which had been extended up to four and half years, the said Court also dismissed the Misc. Case No.21/2009 which was filed under Order IX Rule 4 of CPC. In the above process, the Trial Court failed to notice that the defendant did not appear and oppose the petition filed by the petitioner under Order IX Rule 4 of CPC. Therefore, admittedly, there was no opposition for the said petition filed by the plaintiff seeking restoration of his suit.
Secondly, on the very same date i.e. on 16.09.2019, the petitioner had also filed an application seeking adjournment showing the medical grounds. Merely because non-production of a medical certificate the said application came to be rejected. However, the CRP No.1016/2011 :5: said Court in Misc. No.21/2009 also observed that no Doctor was examined in support of the said application, but it failed to notice that there was no opposition to the said application. Though the Trial Court had given four and half years long time for the petitioner to lead his evidence but on 16.09.2009 he had sought for an adjournment on medical ground, which the Trial Court could have considered as a final or last opportunity which it has not done. This deprived the petitioner from getting an adjudication of his claim in a Court of Law. I am of the view that in the best interest of justice and considering the facts and circumstances of the case as a final last chance the petitioner be given an opportunity to lead his evidence and proceed further in the matter. However, at the same time, the precious time of the Court taken hitherto and taking sufficient time of nearly four and half years for no valid reasons CRP No.1016/2011 :6: also has to be considered, as such allowing of the petition would only be on costs.
6. Accordingly, I pass the following:
ORDER
(i) The petition is allowed on a costs of `5,000/- payable by the petitioner to the Chief Minister's Relief Fund (COVID-19), Government of Karnataka, Bengaluru and filing of a compliance affidavit along with the receipt in the Trial Court within three weeks from today.
(ii) Subject to the payment of the aforesaid said costs, the order dated 09.09.2010 passed by the learned Addl. Senior Civil Judge, Gadag in Misc. No.21/2009 dismissing the petition filed under Order IX Rule 4 of CPC is set aside and the said petition filed under Order IX Rule 4 of CPC is allowed, the order of dismissal of S.C.No.60/2004 dated 16.09.2019, for default, is set aside and S.C.No.60/2004 is CRP No.1016/2011 :7: restored on the file at the stage on which it was as on 16.09.2009.
(iii) The petitioner to appear before the Trial Court without anticipating any notice or summons from it on 09.11.2020 and without taking any further adjournment to participate in the proceedings of the suit.
(iv) Registry to transmit a copy of this order to the concerned Trial Court without delay.
Sd/-
JUDGE *Svh/-