Karnataka High Court
Smt.Bademma @ Radha W/O Sanjay vs Smt.Parvathamma W/O Bheemareddy on 30 March, 2016
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MARCH 2016
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
MFA NO. 200520/2015 (CPC)
BETWEEN:
SMT. BADEMMA @ RADHA
W/O SANJAY, AGE: 38 YEARS, OCC: HOUSEHOLD
R/O BALVEER NAGAR, DELHI
NOW RESIDING AT, RAICHUR - 584 101. ...APPELLANT
(BY SRI AJAYKUMAR A.K., ADVOCATE FOR
SRI ASHOK S. KINAGI, ADVOCATE)
AND:
SMT. PARVATHAMMA
W/O BHEEMAREDDY
AGE: 64 YEARS, OCC: HOUSEHOLD
R/O H.NO. 10-3-103, MAKTHELPETH
RAICHUR - 584 101. ...RESPONDENT
(BY SRI SHIVANAND PATIL, ADVOCATE )
THIS MFA FILED UNDER ORDER 43 RULE 1 (C) OF THE CIVIL
PROCEDURE CODE, PLEASED TO ALLOW THE APPEAL BY SETTING
ASIDE THE IMPUGNED ORDER DATED 06.01.2015 PASSED IN CIVIL
MISC. NO. 49/2014 BY THE LEARNED PRL. SENIOR CIVIL JUDGE &
CJM, RAICHUR VIDE ANNEXURE G AND CONSEQUENTLY CONDONE
THE DELAY IN FILING RESTORATION PEITTION AND RESTORE THE
SUIT TO ITS ORIGINAL POSITION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
This appeal is directed against the order passed by the Principal Senior Civil Judge and CJM, Raichur on I.A.No.1 filed under Section 5 of the Limitation Act, consequently, dismissing the petition filed under Order 9 Rule 4 read with Section 151 of CPC in Misc.No.49/2014.
2. The facts in brief are:
- that the appellant filed O.S.No.4/2009 for partition and separate possession against the respondent. The respondent contested the matter. The trial Court after going through the pleadings, framed the issues. It appears on 28.03.2014 when the matter was posted for appellant's evidence, she did not appear before the Court below. The trial Court was pleased to dismiss the suit for non-prosecution.
The appellant filed an application to recall/set-aside the dismissal order dated 28.03.2014 and restore the suit to file. The said application was registered as Civil Misc.No.49/14. Petitioner has filed an application for condonation of delay in 3 filing the application for restoration of the suit. The trial Court rejected the said application and consequently, petition filed under Order IX Rule 4 CPC is also dismissed. Being aggrieved, the appellant is before this Court.
3. Heard the learned counsel for the parties.
4. Learned counsel appearing for the appellant would contend that the appellant was attending to her husband who was suffering from heart problem and he was taking treatment at Delhi. Hence, she was unable to appear before the trial Court on 28.03.2014 when the matter was listed for the evidence of the appellant. The said non-appearance of the appellant before the Court below was due to the bonafide reasons and not due to any negligence on her part. It is contended that the trial Court without appreciating the evidence adduced by the appellant that she was attending to her husband who was taking medical treatment at Delhi, dismissed the application without any valid basis. Consequently, the petition filed for recalling or restoring of 4 the order of dismissal is also dismissed. It is contended that the name of the husband of the appellant is Deepak @ Sanjay. Though this explanation was offered before the trial Court, disbelieving the same, the trial Court dismissed the I.A.1 for condonation of 2 months 17 days in filing the petition for restoration of O.S.No.4/09.
5. Per contra, learned counsel appearing for the respondent defends the impugned order and contends that Sanjay and Deepak are two different persons. Appellant has not satisfactorily explained the cause for the delay. Hence, the trial Court was justified in dismissing the I.A. as well as the petition.
6. Heard the rival submissions and perused the material on record.
7. It is discerned that the appellant has filed O.S.No.4/09 before the trial Court for partition and separate possession which came to be dismissed for non-prosecution 5 on 28.03.2014. The application was filed by the appellant to recall the dismissal order dated 28.03.2014 and to restore the case to the file with delay of 2 months 17 days. The respondent remained exparte despite service of notice. The trial Court proceeded to dismiss the application mainly for the reason that the medical documents produced by the appellant in support of her explanation that her husband was taking medical treatment at Delhi and she was attending to him cannot be believed as those medical records related to one Deepak of Raichur and in the affidavit filed before the Court, appellant has mentioned the husband's name as Sanjay. However, the appellant has produced the identity card issued by the Election Commission of India wherein her husband's name is shown as Deepak Kumar. It is the contention of the appellant that Deepak Kumar is none other than Sanjay. If the same is considered, delay of 2 months 17 days in filing the petition for restoration of O.S.No.4/09 deserves to be allowed.
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8. The appellant has satisfactorily explained the cause for delay of 2 months 17 days in filing the petition for restoration of O.S.No.4/09. Moreover, the delay of 2 months 17 days is not an inordinate delay to reject the petition when the appellant has shown sufficient cause for condonation. Hence, the order passed by the Principal Sr. Civil Judge and CJM, Raichur dated 06.01.2015 impugned herein, is set- aside and O.S.No.4/09 is restored to the file of the Principal Senior Judge at Raichur with its original number.
9. Accordingly, the appeal is allowed with costs of Rs.2000/- payable to the respondent on the next day of hearing before the trial Court.
10. Parties are directed to appear before the trial Court on 18.04.2016 without further notice.
Sd/-
JUDGE brn