Karnataka High Court
Sri Syed Jameel S/O Ghafoor Sab vs Sri Nazeer N S/O N Hussalli Peera on 27 May, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:7024
CRP No. 100173 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.100173/2023
BETWEEN:
SRI SYED JAMEEL S/O. GHAFOOR SAB,
AGE: 45 YEARS, OCC: EX-DRIVER,
R/O: 22ND WARD, B. J. EXTENSION
SHASTRI NAGAR, SUNKALAPURA HOSPET TOWN,
DIST: BALLARI, PRESENTLY R/O: BALLARI,
583101.
...PETITIONER
(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
1. SRI NAZEER N. S/O. N HUSSALLI PEERA,
AGE: 37 YEARS, OCC: DRIVER OF THE AUTO
AP-39/TG 9640 R/O 2/132-A,
KHADERPALLI VILLAGE, CHAPADU,
DIST: KADPA, ANDRAPRADESH,
STATE - 516 362.
Digitally
signed by
ROHAN 2. SRI CHALLARNKURU SREENIVASULU
HADIMANI T
Location: S/O. VENKATESWARLU,
High Court of
Karnataka AGE: 44 YEARS, OWNER OF THE AUTO
AP-39/TG-9640, R/O 11/205,
OLD GANDHI NAGAR, CHENNUR
YSR KADAPA ANDRAPRADESH STATE 516 162.
3. THE MANAGER,
LIBERTY GENERAL INSURANCE COMPANY,
10TH FLOOR, TOWER A PENINSULA
BUSINESS PARK, GANPAT RAO, KADAM MARG,
LOWER PAREL, MUMBAIN,
MAHARASTRA STATE - 400 008.
...RESPONDENTS
(BY SRI S.K.KAYAMATH, ADVOCATE FOR R3;
R1 AND R2 ARE NOTICE TO DISPENSED WITH)
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NC: 2024:KHC-D:7024
CRP No. 100173 of 2023
THIS CRP IS FILED UNDER SEC.115 OF CPC, 1908, PRAYING
TO SET ASIDE THE ORDER DATE 01.08.2023 IN CIVIL
M.C.NO.81/2022 PASSED BY THE LEARNED II ADDL. DISTRICT
JUDGE AT BALLARI, AND ALLOW THE CIVIL M.C.NO.81/2022 AS
PRAYED FOR, BY ALLOWING THE ABOVE REVISION PETITION AS
PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is by the claimant who had filed a petition in MVC No.727/2020 on the file of the II Addl.District Judge, Bellary ('Tribunal', for short) seeking compensation under the provisions of Motor Vehicles Act. It appears the said petition was dismissed for non- prosecution resulting in petitioner herein filing the petition under Order IX Rule 4 read with Section 151 of Code of Civil Procedure seeking recall of the said order of dismissal. The said application filed by the petitioner also came to be dismissed by the Tribunal. Aggrieved by the same, the petitioner has filed the present petition.
2. Learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submitted that the matter was set down for evidence on -3- NC: 2024:KHC-D:7024 CRP No. 100173 of 2023 11.10.2022 and the petitioner could not appear and prosecute the matter as he was not possessing the documentary evidence that was required to be filed on his behalf. He further submits that the counsel for the petitioner was not in station as he had gone to Bengaluru to attend his daughter's admission process to the higher education. He submit that because of these two reasons which were beyond control of the petitioner, he could not attend the matter on 11.10.2022 which resulted in dismissal of the petition for non-prosecution. He further submits that the petitioner filed the present application under Order IX Rule 4 of CPC seeking recall of the order, the Tribunal found the said reasons to be not convincing enough to recall the order, which resulted in dismissal of the application. Hence, the petition.
3. Sri. S.K.Kayakmath, learned counsel appearing for the respondent justifying the order passed by the Tribunal submits that sufficient opportunity was afforded to the petitioner to lead evidence as seen in the records -4- NC: 2024:KHC-D:7024 CRP No. 100173 of 2023 and since the petitioner has not availed the opportunities the Tribunal has dismissed the application. He however fairly submits that the petitioner may be permitted to lead further evidence and prosecute the matter subject to condition that he shall not be entitled for the interest during the period between 26.03.2021 till the date of restoration.
4. Counsel for the petitioner on the other hand submits that the petitioner was always ready and willing to lead evidence but for non-availability of the documentary evidence and the absence of the counsel, the matter was dismissed for non-prosecution. Hence, he submits that petitioner may not be saddled with such order depriving him of his legal claim.
5. Heard and perused the records.
6. There is no dispute of the fact that the matter was set down for evidence on 26.03.2021 and the petitioner was given opportunity to lead evidence up till 11.10.2022 and the petitioner has not chosen to lead any -5- NC: 2024:KHC-D:7024 CRP No. 100173 of 2023 evidence. Taking note of these aspects of the matter, the Tribunal dismissed the claim petition for non-prosecution.
7. Though the application under Order IX Rule 4 of CPC was filed by the petitioner seeking recalling the said order of dismissal, the tribunal has not found favour resulting in the present petition.
8. In view of the fair submission made by the learned counsel for the respondent that the petitioner may be permitted to prosecute the matter subject to the condition of he not being entitled for interest from 26.03.2021 till the date of restoration, this Court is of the considered view that this petition be allowed subject to the condition that the petitioner shall not be entitled for interest from the date of dismissal of the petition by the Tribunal for non-prosecution till date i.e., from 11.10.2021 till 27.05.2024.
9. With the above, petition is allowed.
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NC: 2024:KHC-D:7024 CRP No. 100173 of 2023
10. Since the parties are represented by their respective counsel, they shall appear before the Tribunal on 20.06.2024 without any further notice. It is made clear the petitioner shall prosecute the matter without seeking any unnecessary adjournment and shall co-operate with the Tribunal for expeditious disposal of the matter.
SD/-
JUDGE KGK/CT-ASC List No.: 1 Sl No.: 26