Karnataka High Court
Siddhartha Educational Society vs Venkatamma @ Venktalakshmamma on 20 July, 2018
Author: S Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
M.F.A. NO.10199 OF 2013 (CPC)
BETWEEN
1. SIDDHARTHA EDUCATIONAL SOCIETY
BY ITS SECRETARY
SIDHARTHA NAGAR
TUMKUR - 560 012
2. SIDDHARTHA RESIDENTIAL HIGH SCHOOL
MADHUGIRI
BY ITS PRESIDENT ... APPELLANTS
(BY SRI CHANDRAKANTHA R.GOULAY, ADV.)
AND:
SMT.VENKATAMMA @
VENKATALAKSHMAMMA
W/O HUVADIGARA NARAYANAPPA
R/O MADHUGIRI - 567 781 ... RESPONDENT
(SERVED AND UNREPRESENTED)
THIS MFA FILED U/O 43 RULE (1)(c)(t) OF CPC, AGAINST
THE ORDER DATED 10.01.2011 PASSED IN CIVIL
MISCELLANEIOUS CASE NO.68/2010 ON THE FILE OF THE
FAST TRACK COURT-V, MADHUGIRI, DISMISSING THE
PETITION FILED U/O 41 RULE 19 AND ORDER 9 RULE 9 OF
CPC, TO RESTORE THE APPEAL R.A.NO.302/2007.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
2
JUDGMENT
Appellant has assailed the order passed in Civil Miscellaneous Case No. 68/2010 dated 10.01.2011 whereby the miscellaneous petition filed by the appellant herein under Order 9 Rule 9 and Order 41 Rule 19 of CPC seeking restoration of appeal in R.A.No.302/2007 came to be dismissed.
2. The relevant facts are that, O.S. No. 46/92 came to be filed before the Civil Judge at Madhurigi seeking for relief of declaration and injunction as against the appellant herein. The suit came to be partly decreed in so far as prayer for injunction came to be granted as per order dated 15.07.2007. Aggrieved by the said order, the appellant herein filed regular appeal in R.A. No.302/2007 before the First Additional District Judge at Tumakuru. The appellant herein had obtained order of status quo in his favour in the said proceedings. However the said proceedings came to be dismissed for default due to non-appearance of the counsel for the appellant herein in the R.A. proceedings. 3 The court after noting the absence of the appellant by order dated 19.06.2010 had dismissed the appeal by invoking Order 41 Rule 11 of CPC, against the said order of dismissing the appeal, the appellant herein had preferred Civil Misc. Case No.68/2010 under Order 9 Rule 9 read with Order 41 Rule 19 of CPC to restore the appeal No.R.A. 302/2007. It was pointed out that the absence of the counsel on the said relevant date was due to ill health of the counsel appearing on behalf of the appellant in R.A.No.302/2007.
3. The lower court however by its impugned order dated 10.01.2011 dismissed the said Civil Miscellaneous case No.68/2011 observing that there is certain discrepancies in so far as the verification and signature of the parties was not find on the appeal memorandum and also noted that in the absence of medical records filed to support their contentions, the petition was liable to be rejected. The said order is challenged before this Court in the present appeal. 4
4. Though notice has been issued and respondent has been served there is no representation on behalf of the respondent.
5. It is to be noted that the appellant is an educational society and substantive rights of the parties are at issue before the court and against the findings as regards relief for permanent injunction the appeal was filed. While considering the petition for restoration the nature of relief sought for ought to be kept in mind. The trial court while passing the impugned order has referred to certain technical defects as regards the absence of signature of the second petitioner and that the petition was verified only by the 1st petitioner. However, by noting the fact that the petitioner is a Society, the defect if any for obtaining the signature of one of the petitioner only does not go to the root of the matter.
6. Noting that the trial court ought not to have adopted a technical approach in the matter and at the most could have vacated the interim order that was in operation in favour of the appellant and provided a final 5 opportunity. Taking note of the fact that substantial rights of the appellant are involved and also in the interest of justice it would be appropriate to set aside the impugned order putting the appellant on terms. It is also to be noted that the right of first appeal is a substantive right and the appellant ought not be deprived of this right on technicalities. The petition in Civil Miscellaneous Case No. 68/2010 dated 10.01.2011 is set aside subject to cost of Rs.5,000/- payable by the appellant to the High Court Legal Services Committee within ten days from receipt of the copy of this order. The appellant herein is to make necessary motion before the Appellate court in R.A. No.302/2007 and seek for its restoration by filing a memo within fifteen days of receipt of certified copy of the present order. The undertaking by the present appellant to co-operate with the Court by diligent participation in the proceedings in R.A.No.302/2007 after restoration has taken note of.
Sd/-
JUDGE HR/BVK