Karnataka High Court
M/S. Hvac System Pvt. Ltd vs Mr. N. Shivakumar on 29 March, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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MFA No. 5361 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
MISCELLANEOUS FIRST APPEAL NO. 5361 OF 2022 (CPC)
BETWEEN:
1. M/S. HVAC SYSTEM PVT. LTD.,
NO.145, 1ST FLOOR, 2ND MAIN,
1ST B CROSS, 2ND STAGE,
2ND PHASE, DOMLUR,
BENGALURU-560 071,
REPRESENTED BY ITS MANAGING DIRECTOR,
MRS. KUNJITHAMALA.
2. MRS. KUNJITHAMALA
W/O. LATE R. RAMURTHY,
MANAGING DIRECTOR,
M/S. HVAC SYSTEMS PVT. LTD.,
NO.145, 1ST FLOOR, 2ND MAIN,
1ST B CROSS, 2ND STAGE,
2ND PHASE, DOMLUR,
BENGALURU-560 071.
Digitally signed
by VANDANA S
Location: High 3. M/S. RRM HVAC ENGINEERING SERVICES
Court of NO.145, 1ST FLOOR, 2ND MAIN,
Karnataka 1ST B CROSS, 2ND STAGE,
2ND PHASE, DOMLUR,
BENGALURU-560 071,
REP. BY ITS MANAGING DIRECTOR,
MRS. KUNJITHAMALA.
4. MRS. KUNJITHAMALA S.,
W/O. LATE R. RAMURTHY,
MANAGING DIRECTOR,
M/S. RRM HVAC ENGINEERING SERVICES,
NO.145, 1ST FLOOR, 2ND MAIN,
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MFA No. 5361 of 2022
1ST B CROSS, 2ND STAGE
2ND PHASE, DOMLUR,
BENGALURU-560 071.
... APPELLANTS
(BY SRI. DODDE GOWDA C H., ADVOCATE FOR A1 & A2;
SRI MADHU N. RAO, ADVOCATE FOR A3 & A4)
AND:
MR. N. SHIVAKUMAR
S/O. MR. M. K. NAGARAJAN,
AGED ABOUT 57 YEARS,
R/AT C-502, GOPALAN JEWELS APARTMENT,
KONANKUNTE CROSS,
KANAKAPURA ROAD,
BANGALORE-560 062.
... RESPONDENT
(BY SRI. JNANESH KUMAR K., ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC,
AGAINST THE ORDER DATED 28.02.2020 PASSED IN MISC. NO. 734/2019
ON THE FILE OF THE LXXV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-76), DISMISSING THE PETITION FILED UNDER
ORDER 9 RULE 13 READ WITH SECTION 151 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is directed against the impugned order dated 28.02.2020 passed in Mis.No.734/2019 by the LXXV Addl. City Civil Judge, Bengaluru (CCH-76), whereby the said petition filed by the appellants under Order 9 Rule 13 r/w Section 151 of CPC, -3- MFA No. 5361 of 2022 seeking to set aside the ex-parte judgment and decree dated 02.03.2019 passed in O.S.No.9740/2015 by the trial court was dismissed.
2. The material on record discloses that respondent-plaintiff had instituted the aforesaid suit in O.S.No.9740/2015 against the appellants-defendants herein for recovery of a sum of Rs.10 Lakhs together with interest and for other reliefs. The appellants herein who were arrayed as defendants in the suit entered appearance through their counsel; however, subsequently the appellants did not file their written statement or contest the suit.
3. The respondent-plaintiff examined himself as PW.1 but was not cross-examined by the appellants, who also did not adduce oral or documentary evidence on their behalf. Accordingly, the trial court proceeded to pass an ex-parte judgment and decree dated 02.03.2019 directing the appellants to pay a sum of Rs.4,90,000/- together with interest at 10% per annum from the date of the suit till the date of payment.
4. Aggrieved by the said ex-parte judgment and decree dated 02.03.2019 passed in O.S.No.9740/2015, the appellants- -4- MFA No. 5361 of 2022 defendants filed the instant Misc.No.734/2019 before the trial court under Order 9 Rule 13 r/w Section 151 of CPC seeking to set aside the ex-parte judgment and decree dated 02.03.2019 passed in O.S.No.9740/2015. The said Miscellaneous Petition having been opposed by the respondents, the trial court proceeded to pass the impugned order dismissing the petition, aggrieved by which, the appellants are before this Court by way of the present appeal.
5. A perusal of the impugned order passed by the trial court would indicate that the trial court has come to the conclusion that the appellants have not made out sufficient cause for not appearing in the suit or contesting the same. In this context, the trial court has adopted hyper technical approach in not considering the specific contention of the appellants that it was not possible for them to appear before the trial court in the suit on account of ill- health as a result of which they could not contact the Advocate and file the written statement and contest the suit and that the same was due to bonafide reasons, unavoidable circumstances and sufficient cause. Under these circumstances, I deem it just and appropriate to set aside the impugned order and allow the Misc. -5- MFA No. 5361 of 2022 petition and remit the matter back to the trial court and to dispose off the suit within a timeframe.
6. In the result, I pass the following:-
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned order dated 28.02.2020 passed in Miss.No.734/2019 by the trial court is hereby set aside and the said petition filed by the appellants stands allowed.
(iii) Consequently, the ex-parte judgment and decree dated 20.03.2019 passed in O.S.No.9740/2015 stands restored to the file of the trial court.
(iv) Both the appellants and respondent undertake to appear before the trial court on 17.04.2023 without awaiting further notice from the trial court.
(v) Appellants are directed to file their written statement in the suit on 17.04.2023 without seeking any extension of time under any circumstance whatsoever.
(vi) The trial court shall dispose of the suit as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order.
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(vii) All rival contentions are kept open and no opinion is expressed on the same.
Sd/-
JUDGE NP/SRL