Karnataka High Court
M/S Laxmi Enterprises vs M/S Parimala Textiles on 1 March, 2016
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH 2016
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A.No.1316/2016(CPC)
BETWEEN :
M/s.LAXMI ENTERPRISES,
No.104, SHANMUGA COMPLEX,
II FLOOR, JAMMAQ MASJID ROAD,
NEAR STATE BANK OF MYSORE,
BENGALURU - 560 002.
REP. BY ITS PROPRIETOR,
GHEWARAM,
S/O KESHARAMJI,
AGED 45 YEARS ...APPELLANT
(BY SRI B.RAMESH, ADVOCATE)
AND :
M/s.PARIMALA TEXTILES,
Dr.AMBEDKAR ROAD,
S.Y.COMPLEX, BELUR,
PIN CODE -571 418
NAGAMANGALA TALUK,
REP. BY ITS PROPRIETOR. ...RESPONDENT
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(c) OF
THE CODE OF CIVIL PROCEDURE TO SET ASIDE THE ORDER
DATED:07.06.2014 PASSED IN S.C.No.15301/2013 ON THE
FILE OF XV ADDITIONAL SMALL CAUSES JUDGE, MAYO HALL
UNIT, BENGALURU AND THE ORDER DATED 08.07.2015
PASSED IN MISCELLANEOUS PETITION No.15017/2014 ON
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THE FILE OF V ADDITIONAL SMALL CAUSES JUDGE AND XXIV
ACMM, MAYO HALL, BENGALURU AND RESTORE THE SUIT
BEARING S.C.No.15301/2013 ON THE FILE OF XV
ADDITIONAL SMALL CAUSES JUDGE, MAYO HALL,
BENGALURU.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Pursuant to the order dated 22.02.2016, a memo is filed by the learned counsel for the appellant on 23/02/2016, wherein an attempt is made to explain the filing of this appeal under Order XLIII Rule I(c) of the Civil Procedure Code.
2. The facts on record would disclose that a suit for recovery was filed by the appellant herein in S.C. No.15301/2013 on the file of Small Causes Court, Bengaluru, and the same was dismissed on 07.06.2014. Being aggrieved by the same, the appellant herein filed application, Misc. petition No.15017/2014, under Order IX Rule 7 CPC, which came to be dismissed by the trial Court by order dated 08.07.2015. The same is sought to be challenged in these proceedings contending that the application was erroneously -3- filed under Order IX Rule 7 CPC., and in the fact situation, what was required to be filed before the trial Court was an application under Order IX Rule 9 CPC. It is further contended that the appellant herein had given explanation for his absence on 07.06.2014 in the application filed seeking setting aside of the order of dismissal of the suit, which is in compliance with the provisions of Order IX Rule 9 CPC, however, in the application, the provision has been erroneously invoked under Order IX Rule 7 CPC. In that view of the matter, the present appeal filed Order XLIII Rule 1 CPC against the order impugned is maintainable.
3. Since the order impugned refers to dismissal of the application under Order IX Rule 7 CPC., office objection with regard to maintainability of the appeal under Order XLIII Rule 1 CPC is raised. The contention of the learned counsel for the appellant that the order rejecting the application, Misc. Petition No.15017/2014, should be read as one passed under Order IX Rule 9 CPC., cannot be accepted. The appellant herein was required to file application under Order IX Rule 9 -4- CPC in the first instance. Filing of the same under Order IX Rule 7 CPC., is erroneous. In that view of the matter, the order impugned will have to be challenged in the manner known to law and not by seeking to presume that the same is passed under Order IX Rule 9 CPC, when actually, it is an order dismissing the application filed under IX Rule 7 CPC. Therefore, the present appeal is not maintainable.
4. Accordingly, the appeal is dismissed as not maintainable. The appellant is at liberty to initiate appropriate proceedings challenging the order impugned and while doing so, liberty is reserved to him to seek exclusion of the time spent before this Court while seeking condonation of delay under Section 14 of the Limitation Act. In view of dismissal of the appeal, the appellant is permitted to take back the certified copy of the order impugned in this appeal by furnishing photocopy of the same for the record purpose.
Sd/-
JUDGE sma