Subhasa S/O. Vittalappa Saler @ Ekabote vs Umesh S/O. Panduranga Saler @ Ekabote on 20 February, 2014

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Karnataka High Court

Subhasa S/O. Vittalappa Saler @ Ekabote vs Umesh S/O. Panduranga Saler @ Ekabote on 20 February, 2014

Author: N.Kumar

Bench: N.Kumar

        IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

     DATED THIS THE 20th DAY OF FEBRUARY 2014

                      BEFORE

        THE HON'BLE MR. JUSTICE N.KUMAR

      WRIT PETITION No. 66401 OF 2012 (GM-CPC)

BETWEEN

SUBHASA
S/O VITTALAPPA SALER @ EKABOTE
AGE: 62 YEARS, OCC: AGRICULTURE
R/O HOSARITTI
TQ & DIST: HAVERI                     ...PETITIONER

             (By Sri F V PATIL, ADVOCATE)
AND

1.    UMESH
      S/O. PANDURANGA SALER @ EKABOTE
      AGE: 37 YEARS
      OCC: PRIVATE EMPLOYEE
      R/O S.S. BULBULE CHAWL
      SIDDESHWAR NAGAR
      UNKAL CROSS
      HUBLI

2.    CHANDRAKALA
      W/O. UMESH SALER @ EKABOTE
      AGE: 32 YEARS
      OCC: HOUSEHOLD WORK
      R/O S.S. BULBULE CHAWL
      SIDDESHWAR NAGAR
                               2




     UNKAL CROSS
     HUBLI                           ...RESPONDENTS

             (By Sri S Y SHIVALLI, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER VIDE ANNEXURE-B
DTD.30.05.2009 PASSED BY THE LEARNED CIVIL JUDGE
[JR.DN.] AND JMFC, HAVERI IN OS.NO.14/2009.

    THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT, MADE THE
FOLLOWING:

                          ORDER

This Writ Petition is filed challenging the order passed by the trial Court dismissing the application filed under Order IX Rule 4 CPC for restoration of the suit which was dismissed for not taking steps.

2. The counsel for the respondents submit that the order passed is justified because the plaintiff is not diligent in prosecuting the matter.

3. Suit is one for specific performance. When steps were not taken, the suit was dismissed and, therefore, an 3 application under Order IX Rule 4 CPC was filed taking steps. The question of dismissing the application under Order IX Rule 4 would not arise. At that stage it is a matter between the Court and the plaintiff. The trial Court has not kept in mind the distinction between an application under Order IX Rule 4 CPC and Order IX Rule 9 CPC and, therefore, the order cannot be sustained. Hence, I pass the following order:-

         (i)       Writ Petition is allowed.

         (ii)      The impugned order passed by the trial Court

dismissing the application under Order IX Rule 4 CPC is set aside.

(iii) If process is paid, notice shall be served.

SD/-

JUDGE ckl/-

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