Veerabhadrappa S/O Siddappa Kallyal vs Manjunatha S/O Basavaraj Kundagol on 30 August, 2013

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Karnataka High Court

Veerabhadrappa S/O Siddappa Kallyal vs Manjunatha S/O Basavaraj Kundagol on 30 August, 2013

Bench: A.N. Venugopala Gowda

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           IN THE HIGH COURT OF KARNATAKA

                  DHARWAD BENCH

      DATED THIS THE 30TH DAY OF AUGUST, 2013

                     BEFORE

  THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

       WRIT PETITION NO.81837/2013 (GM-CPC)


BETWEEN:

VEERABHADRAPPA S/O SIDDAPPA KALLYAL,
AGE: 77 YEARS, OCC: AGRIL,
R/O. HURALIKOPPI,
TQ: SAVANUR, DIST: HAVERI.

                                         ... PETITIONER
(BY SRI. G N NARASAMMANAVAR, ADV.)

AND

MANJUNATHA S/O BASAVARAJ KUNDAGOL,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O.HURALIKOPPI,
TQ: SAVANUR, DIST: HAVERI.


                                        ... RESPONDENT

     THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH TEH
IMPUGNED ORDER PASSED BY THE COURT OF THE CIVIL JUDGE
AND JMFC SAVANUR IN O.S.NO.281/2011 SO FAR AS THE
ORDER DATED:26/07/2013 THEREBY SET ASIDE i.e. , VIDE
ANNEXURE-F.
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      THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:


                                  ORDER

The respondent / plaintiff, instituted O.S.281/2011 against the petitioner / defendant, in the Court of Civil Judge at Savanur, to pass a decree for specific performance of an agreement of sale dated 15.12.2009 and for grant of consequential reliefs. Written statement seeking dismissal of the suit was filed on 02.04.2012. Issues having been raised, when the suit was posted for evidence, plaintiff having remained absent, the suit was dismissed for non-prosecution, on 04.10.2012. On that very day, I.A.3 was filed under S.151 CPC, to set aside the order of dismissal of the suit for default. Though statement of objections was filed, the Trial Court having allowed the application, subject to payment of cost, feeling aggrieved, the defendant has filed this writ petition.

2. Learned advocate for the petitioner by relying on the decision in the case of B GANGANNA Vs. THE RETURNING OFFICER AND OTHERS, 1981 (2) Kar. L.J. 3 290, contended that the suit having been dismissed for non-prosecution, the plaintiff ought to have applied for setting aside the order by making an application under Order 9 Rule 9 CPC and instead, the application filed under S.151 CPC being not maintainable, ought to have been rejected. The impugned order being otherwise, warrants interference.

3. Perused the writ record. The plaintiff could have filed an application under Order 9 Rule 9 CPC. However, he filed application under S.151 CPC, on the very day, the suit was dismissed for non-appearance. Mere wrong invocation of an incorrect provision of law is not a ground to deny relief, if the party is entitled to relief on the application of correct provision of law.

4. In the case of M/S. SHA VINDICHAND HASTIMAL AND COMPANY AND OTHERS Vs. CENTRAL BANK OF INDIA, K.R. CIRCLE, MYSORE, 1995 (1) Kar.L.J.191, the respondent - Bank has instituted a suit for recovery of certain sum and on the date the suit was posted for evidence, remained absent and the suit was 4 dismissed for default and on the very day, an application under S.151 CPC was filed to set aside the order of dismissal and the application having been allowed by the trial court, by placing reliance on the decision in the case of B. GANGANNA (supra), a civil revision petition was filed by the defendant. Considering the rival contentions, it was held as follows:

" In this case, no doubt that the court has exercised its powers under Section 151, CPC in spite of the fact that there is a provision in CPC for setting aside the order of dismissal of the suit for default. But the facts disclose that the plaintiff filed an application under Section 151, CPC on the very day when the suit came to be dismissed for default. I do not think any injustice would be caused if such an order is allowed to stand. It cannot be interfered with merely on technical ground that the application filed was under Section 151, CPC and not under the proper provision of law. Therefore, this Court will not be justified in exercising its powers under Section 115, CPC to set aside such an order which has advanced the cause of justice and not thwarted it."

In view of the above, no interference with the impugned order is warranted, in exercise of the Jurisdiction under Art. 227 of the constitution.

In the result, writ petition being devoid of merit is rejected. Since, the petitioner is a senior citizen, the Trial Court is directed to decide the suit within a period of six months from the next hearing date.

SD/-

JUDGE sac*

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