Karnataka High Court
Sri. Sangappa S/O. Sankappa Tamboli, vs Shri.Mahesh S/O.Shivalingayya ... on 25 September, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION Nos.67652 OF 2010 [GM-CPC]
BETWEEN:
SRI. SANGAPPA S/O. SANKAPPA TAMBOLI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O.MUDHOL, DIST: BAGALKOT.
... PETITIONER
(By Sri. MALLIKARJUNSWAMY B HIREMATH ADV.)
AND:
SHRI.MAHESH S/O.SHIVALINGAYYA HIREMATH,
STYLING AS SHRI JADGURU DEVARU GURU
MRUTYUNJAYA SWAMI, VIRAKTAMATH,
AGE: 48 YEARS, OCC: NIL,
R/O.MANTROD, TALUK: SAVANUR,
NOW AT MUDHOL, DIST: BAGALKOT.
... RESPONDENT
(By Sri. SADIQ N GOODWALA ADV.)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF CONSTITUTION OF INDIA
PRAYING TO QUASH OF THE ORDER DATED:25/09/2010
AT ANNEXURE-E PASSED BY THE ADDITIONAL CIVIL
JUDGE (SR.DN.) JAMKHANDI IN CIVIL MISC. NO.39/2007
AND CONSEQUENTLY RESTORE THE SUIT IN
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O.S.NO.250/2002 ON THE FILE OF ADDITIONAL SENIOR
CIVIL JUDGE, JAMKHANI SITTING AT MUDHOL.
This writ petition coming on for Preliminary
Hearing in 'B' Group this day, the Court made the
following:
O R D E R
O.S. No.250/2002 filed by the petitioner, in the Court of Principal Civil Judge (Sr.Dn.), Jamkhandi, to pass a decree of declaration and perpetual injunction, was dismissed on account of the absence of plaintiff on 16.06.2006. IA No.V was filed on 17.06.2006, to set aside the order passed on 16.06.2006 and to restore the suit. The said IA was held as not maintainable, since it was not filed on 16.06.2006. However, it was observed that it is open to the petitioner to file a Misc. Petition under Order IX Rule 4 CPC, seeking restoration of the suit, vide order dated 22.11.2007.
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2. Civil Misc. Petition No.39/2007 was filed under Order IX Rule 4 read with Section 151 of CPC, to set aside the order passed in O.S. No.250/2002 on 16.06.2006. The same having been opposed by the original defendant/opponent, both parties adduced evidence. The said Misc. Petition has been dismissed on 25.09.2010, on two grounds i.e., non-disclosure of dismissal of IA-V on 22.11.2007 and the said order having attained finality and the petition having no merit. Assailing the said order passed on 25.09.2010, this writ petition has been filed.
3. Heard the learned counsel on both sides and perused the writ petition record.
4. The suit was dismissed on account of the absence of plaintiff on 16.06.2006. IA-V filed in the suit to set aside the order passed on 16.06.2006 and for restoration of the suit was :4: dismissed on the ground that IA-V was not filed on the day the suit was dismissed but was filed on the subsequent day and it was observed as follows:-
"......Therefore, I am of the opinion that, the said IA does not require for consideration at the most, the plaintiff can file the Misc. Petition before the competent court under the proper provision of law......"
5. Civil Misc. Petition No.39/2007 having been filed, the trial court is unjustified in holding that on account of the dismissal of IA-V, Misc. Petition is not maintainable. IA-V was not decided on its merit. Liberty was reserved to the petitioner to file separate miscellaneous case. In the circumstances, it was unnecessary for the plaintiff to have questioned the order passed on IA-V. Non-mentioning of filing of IA-V and its :5: disposal, in the circumstances noticed supra, is not material.
6. Though evidence has been adduced by both the parties in Civil Misc. No.39/2007, without referring to the same and appreciating the record, a finding has been recorded that there is no merit in the petition. The said finding is perverse and arbitrary. The Court below ought to have taken note of the evidence both oral and documentary adduced through PW-1 and RW-1 and thereafter, decided the Misc. Case. Since, such a course of action has not been taken, the impugned order being irrational, warrants interference.
In the result, writ petition is allowed and the impugned order is quashed. Civil Misc. Case No.39/2007 is restored for consideration and decision by keeping in view the evidence brought on record by both parties.
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Both parties are directed to appear before the trial court on 08.11.2013 and receive further orders. Since, enquiry in Misc. Case is complete, the Court below shall decide the matter expeditiously and within a period of two months, by keeping in view of the observations made supra.
No costs.
SD/-
JUDGE Ct:byg/-
RK/-