Karnataka High Court
M S A Aleem vs Maharashtra Apex Corporation Ltd on 26 August, 2011
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26°" DAY OF AUGUST 260% :
BEFORE
THE HON'BLE MR.JUSTICE JAWA ; D RAHI M yo
CRP.No. 245 ¢ OF 2011
BETWEEN
1 MSAALEEM
S/O LATE M SYED ABBAS- oe
AGED 58 YEARS, R/O NO) 376/35°
6™ CROSS, WILSON GARDEN
BANGALORE- 560 OF s
2 MSC PASHA: S/O. LATE M SYED ABBAS
AGED 52 ¥EARS fe
R/O NO.23, AUTC HINS ROAD >
3° CROSS, THOMAS TOWN-POST
BANGAL OnE 580 084. ... PETITIONERS
(BY. SRI S My RAZ Vip ADM {2}
AND
| MAHARASHTRA APEX CORPORATION LTD.
"SYNDICATE HOUSE, MANIPAL 578 119
~O K-DISTD (REP. .BY GPA HOLDER
K-GOPAL KRIS HINA BHAT R/O KUNILBETTU
UDUPT 0. ... RESPONDENT
"CRP FILED UNDER SEC.115 OF ¢
PC, AGAINST THE
JUDGMENT AND ORDERS DATED:17.06.2011 PASSED IN
MALQ3/2019 ON THE FILE OF THE DISTRICT JUDGE, UDUPI
SMISSING THE APPEAL.
THIS CRP COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING
a
ey
ORDER
th Oe oy © .
Qe Oe b 5 This revision is directed against the. M.A.No.3/2010 dated 17.06.2011whereby the appeal is." dismissed confirming the dismissal of the petition in un- numbered Misc. petition of 2006.
2. Meard.,
3. The contextual facts are. one 'Maharastra Apex Corporation Lid. filed 'suit against the petitioners in which suit, they have entered appearance but thereafter, they did not appear. The suit was decreed. Against which, they filed Misc. petition: (unnumbered) invoking Order IX Rule 13 of CPC to "set aside. the exparte judgment and decree,
-. Misc:petition (unhumbered) was posted before the Court
-. fer hearing on LA. filed seeking condonation of delay. The petitioners did not take part in the enquiry proceedings but filed an-application under Order 26 Rule 9 of CPC to "appoint a Commissioner to examine him at his residence in Bangaiore.
a re i ne 4, That application was resisted by the respondent/Bank consequent to which several dates. were given by the learned trial Judge to enable this petitioners to pursue further action. Noticing that: petitioners have remained inactive and failed to prosecute: the petition in right earnest from 27.01.2607 till 28.03.2009, the learned trial Judge dismi ssed 'the Mise. urn umbered for default, Instead of applying -- te set 'ac ide that order invoking provision of Order 9 Rule 43 whieh was the right course, the petiti joners prefer red an > appeal under Order 43 Rule i (da) of epc nt M, 4 No: 3/2010 'In the Miscellaneous appeal, they filed "an application, seeki ng condonation of delay which the | learned "Be ppéitate Judge has considered. The learned. appell late suage further noticed that the petitioners
- had preferred a revision against order in Misc.unnumbered dated 28.03.2009 in CRP.145/2009 which was dismissed by "this" Court on 29.07.2009 holding revision was not aintainable and remedy was an appeal under Order 43 of | epee The learned appellate Judge further noticed that ~~ even after the delay in filing the appeal was condoned by order dated 25.11.2010, when the appeal was posted for ae hearing on merits, the appellants repeated the earlier conduct and remained absent on 05.01.2011, 04.03.2011, 18.03.2011, 26.03.2011, 26.05.2011, 10.06.2041. Finally, M.A.3/2010 was posted | for. judgment. on so 17.06.2011 and on that day, no application was made by ther requesting to give them-an opportunity, "in this fact. situation, the learned appellate Juage held that Appellants conduct is indicative of ! L nels default before trial court and repeated the same even in an appeal action, Thus, finding no merit i in. the 'grounds urged, agair inst the order i impugned, it the dismiss athe eppeat
5. Mr.Razvi, learned counsel would submit that the order impugned is ilégal, unsustainable as the learned 7 apbellate judge imine first para (.e., preamble to the : 7 judgment) has mentioned that the appeal was filed under Order 43. Rule i(d) of CPC against the decree dated SS 24. os. 2003 in 0. S. No. 147/1998 whereas the appeal was : erred against 'the. dismis sal of the 'Mise. Petition a (uhnumbered) by order dated 28.03.2009. This according to him is the main ground on which the order impugiiéd. Pay PoF Se has to be set aside. The second ground is that learned trial Judge mis-conceived that appeal was against the decree and thus, has denied the relief sought by the. petitioners and therefore it is to..be interferéc cwith. The - third ground is the leaned appellate Judge has, wrengly framed the point for conside arati ion Jey "Whether the appeal deserves to be allowed and. the decree. passed by the trial Court needs te! be set as! ide?
6. I. 'have aia _ipapugned judgment keeping ia mind what 1s urged: : Though Mr.S.M.Razvi, learned counsel is is right in contending that in the preamble porti ion of th he Buse, the learned appellate Judge has recorded 'that the sppesl was against the decree dated ma 24.66.20 63 in 0.5. NO.147/1998 which is factually an error. . : What is questioned in M.A.3/2010 is the order of disrnissal of the Mise, Petition (unnumbered) by order dated _ 28.05. 2009. Yo this extent he is right but whether such mS wrohg recording of certain facts in the order makes the ultimate order erroneous has to be seen. Even though 'earned appellate Judge has wrongly mentioned that the Ewe OAR decree dated 24.06.2003 is questioned in M.A, but as could be seen from para 6 of the judgment, the learned appellate Judge has considered the grounds urged™by the:
petitioners against the impugned order dated 28.03.2009 . and not against the decree. Merely" becau ise there: is a ESSE ores:
wrong mentioning of date of the order and wrong framing of the point, the order i: impugned cannot be in terfered with, The reasons assigned' in Para 6 are indicative of the fact that the appellate Judge has pp ed his mind to all fact situation. . The | learned appel llate Judge has neticed the disdainful conduct oF the petit ioners i n failing to prosecute the Mi Hse, Pet tition : (unnumbe red) filed by them under Order 9 rule 13. but als 0 7 rail ing te tO prosecute the appeal in rignt earnest. In 'such circumstances, the conclusion reached by "the appellate. Court cannot be faulted. 1 find no merit in 'this revision and it is liable to be dismissed.
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