Karnataka High Court
Sri M V Keshava Murthy vs Sri G V Vasanthappa on 8 December, 2021
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.10834/2021 (GM-CPC)
BETWEEN :
1. SRI. M.V.KESHAVA MURTHY,
AGED ABOUT 40 YEARS,
S/O. LATE M.VENKATAPPA,
SRI. V.VISHWANATH,
SINCE DECEASED BY LRS.
2. SMT. LAKSHMAMMA,
AGED ABOUT 51 YEARS,
W/O. LATE V.VISHWANATH
3. SRI. SUMANTH,
AGED ABOUT 25 YEARS,
S/O. LATE V.VISHWANATH,
P1 TO P3 ARE R/AT NO.2435,
10TH MAIN, 'D' BLOCK,
2ND STAGE, RAJAJINAGAR,
BENGALURU-560010.
... PETITIONERS
(BY SRI. SANATH KUMAR SHETTY, ADVOCATE
FOR SRI. THARANATH SHETTY K, ADVOCATE)
AND:
SRI. G.V. VASANTHAPPA,
SINCE DECEASED BY HIS LRS.
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1. SMT. B.N.SAROJA,
AGED ABOUT 45 YEARS,
W/O. LATE G.V.VASANTHAPPA,
R/AT NO.357, 5TH MAIN,
1ST BLOCK, SRINAGAR,
BENGALURU-560050.
2. SMT. GAYATHRI,
AGED ABOUT 49 YEARS,
D/O. LATE M.VENKATAPPA,
3. SMT. SUSHEELAMMA,
AGED ABOUT 45 YEARS,
D/O. LATE M.VENKATAPPA,
4. SRI. GIRISH,
AGED ABOUT 42 YEARS,
S/O. LATE M.VENKATAPPA,
THE R2 TO R4 ARE R/AT 2435,
10TH MAIN, 'D' BLOCK, 2ND STAGE,
RAJAJINAGAR, BENGALURU-560010.
SMT. SHARADAMMA,
(DIED ON 9.11.2012)
THE R2 TO R4 BEING HER LEGAL
REPRESENTATIVES ARE ALREADY
ON RECORD.
... RESPONDENTS
(BY SRI. R.S. RAVI, ADVOCATE FOR
SRI. B. ROOPESHA, ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 4.12.2009 PASSED IN MISC.
NO.47/2007 BY THE PRINCIPAL SENIOR CIVIL JUDGE,
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BENGALURU RURAL DISTRICT, BENGALURU, VIDE
ANNEXURE-E AND CONSEQUENTLY ALLOW MISC.
NO.47/2007 AND ETC.
THIS WRIT PETITION COMING ON FOR, THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are the legal heirs of one of the plaintiffs in O.S. No.134/1999 on the file of the XLIV Additional City Civil and Sessions Judge, Bengaluru [for short 'the civil Court']. They have in this suit impugned the sale deed dated 17.08.1987, and have also sought for partition and for consequential reliefs. The suit is dismissed for default on 06.11.2003. The petitioners have filed an application in Misc. Petition No.47/2007 under Order IX Rule 9 of the Code of Civil Procedure, 1908 [for short 'CPC'] for restoration of the suit. This application is dismissed for non-prosecution on 04.12.2009.
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2. The civil Court on 04.12.2009, at the first instance, has recorded that the petitioners and the respondents, except one of them, were absent but has later dismissed the petition for non-prosecution opining that the petitioners are not inclined to go on with the case and recording that both the petitioners and the respondents were absent. The civil Court's order dated 04.12.2009 reads as follows:
"Call later 4/12
Later case called out Second time Petitioner and the Petitioner's Advocate- respondent absent. Proxy of R1[a] - present Call later 4/12 Later case called out - parties and Advocates absent.
It seems the petitioner has no inclination to go on with the case. Further this matter is of the year 2007 and hence this petition is dismissed for non- prosecution."5
3. The petitioners have filed another application under Order IX Rule 9 of CPC for recall of the order dated 4.12.2009 and restoration of their application in Misc. Petition No.47/2007. This application in Misc. Petition No.66/2010 is filed belatedly and therefore, an application for condonation of delay is filed. After due enquiry, the civil Court has rejected this application in Misc. Petition No.66/2010 by order dated 07.08.2015 holding that the petition under Order IX Rule 9 of CPC would not be maintainable and the petitioners should have availed the appellate remedy under Order XLIII Rule 1 of CPC.
On the question of delay, the civil Court has also concluded that the petitioners have not established sufficient cause to explain the delay of over one year in filing this application after the dismissal of their earlier application in Misc. Petition No.47/2007. 6
4. The petitioners have impugned this order dated 07.08.2015 in the writ petition in W.P. No.40489/2015. This Court has disposed of this petition with the observation which reads as under:
"2. At this stage, learned counsel for the petitioners submits that the writ petition be disposed of with liberty to the petitioner to assail the validity of the order dated 04/12/2009, by which previous application filed by the petitioner has been dismissed.
3. In view of the above, the writ petition is disposed of in terms of liberty as prayed for.
Needless to state that all contentions to the parties which are available to them in law are to be raised, in case such a petition is filed."
It is after this disposal, the present petition is filed impugning the order dated 04.12.2009 in Misc. Petition No.47/2007 with the prayer for restoration of the suit in O.S. No.134/1999.
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5. It is undisputed that one of the three of the original plaintiffs, Sri. V. Vishwanath, has filed a similar suit for another set of properties in O.S. No.131/1999. This suit is also dismissed for non-prosecution and consequentially, the two applications are filed under Order IX Rule 9 of CPC. The first application is in Misc. Petition No.46/2007 for restoration of the suit and the second application is in Misc. No.47/2007 for restoration of Misc. Petition No.46/2007. These applications, as in the present case, are dismissed by similar orders. The later application in Misc. Petition No.65/2010 is rejected by the order dated 07.08.2015. The legal heirs of the plaintiff have filed writ petition in W.P. No.40488/2015 impugning this order dated 07.08.2015.
6. This Court, considering the material placed on record to establish the circumstances for the delay, 8 which are similar to the circumstances relied upon by the petitioners in this petition, has dismissed the writ petition in W.P. No.40488/2015 holding that the rejection of the application for condonation of delay in Misc. Petition No.46/2007 does not suffer from any infirmity. This Court has opined that the second application under Order IX Rule 9 of CPC was not maintainable and the petitioners therein, if aggrieved by the dismissal of the first application in Misc. Petition No.46/2007 under Order IX Rule 9 of CPC, should have availed the appellate remedy under Order XLIII Rule 1 of CPC.
7. Sri. Sanath Kumar Shetty, the learned counsel who appears along with Sri. Tharanath Shetty K for the petitioners, submits that the dismissal of the petitioners' application in Misc. Petition No.47/2007 is not under Order IX Rule 8 of CPC but under Order IX Rule 4 of CPC. He emphasizes that if the dismissal is 9 because both the petitioners and the respondents were absent, the dismissal must be construed as a dismissal as contemplated under Order IX Rule 4 of CPC and he relies upon the provisions of Order IX Rule 3 of CPC in support of his submission. He elaborates that if the dismissal of the first application is under Order IX Rule 4, the petitioners' remedy cannot be under Order XLIII of CPC and as such, notwithstanding the dismissal of the second application in Misc. Petition No.66/2010 by the order dated 7.8.2015, the petitioners can invoke the jurisdiction of this Court under Article 227 of the Constitution of India to impugn the order dated 04.12.2009 in the first application in Misc. No. 47/2007.
8. As regards the disposal of the petitioners' earlier writ petition in W.P. No.40489/2015 and its impact on the civil Court's finding on the question of delay in Misc. Petition No.66/2010, Sri. Sanath Kumar 10 Shetty submits that this Court has reserved liberty to the petitioner to impugn the order dated 04.12.2009 in Misc. Petition No.47/2007 and therefore, this Court should, despite the order dated 07.08.2015 in Misc. Petition No.66/2010, reconsider the explanation offered by the petitioners to show cause against the delay in filing the second application. He also canvasses, upon the decision of the Hon'ble Supreme Court in 'Athmanathswami Devasthanam v. Gopalaswami Ayyangar'1, that because the Misc. Petition No.66/2010 is held to be not maintainable for want of jurisdiction, the civil Court's order dated 07.08.2015 in that regard must be ignored. He relies upon paragraph-13 of this Judgment which reads as under:
"The last point urged is that when the Civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of 1 AIR 1965 SC 338 11 certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint."
9. Sri. R.S. Ravi, the learned counsel who appears along with Sri. B. Roopesha for the first respondent, submits that the argument that the application in Misc. Petition No.47/2007 must be construed as an application under Order IX Rule 4 of CPC is ingenious but cannot prevail. The petitioners have filed miscellaneous petition in Misc. Petition No.47/2007 invoking the provisions of Order IX Rule 9 of CPC being aware of the jurisdiction there under. On the question of delay, Sri. R.S. Ravi submits that this Court in W.P. No.40488/2015, in very similar circumstances has opined that the delay is not 12 sufficiently explained and the petitioners have not placed any other circumstance in the present case that should persuade this Court to opine otherwise.
10. Sri. R.S. Ravi also emphasizes that the petitioners with the disposal of the writ petition in W.P. No.40489/2015 are bound by the order dated 07.08.2015 in Misc. Petition No.66/2010 and they cannot seek for revisiting of the Court's finding on the question of delay. He asserts that the respondents must succeed in their contention that with the dismissal of the aforesaid writ petition in W.P. No.40488/2015, the petitioners cannot ask for re- visiting of the decision on the question of delay because, though this Court has observed that all the contentions of the parties are left open to be considered in the subsequent proceedings that the petitioners would file, liberty is also reserved to the respondents to urge all grounds.
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11. As is obvious from the civil Court's order dated 04.12.2009, the presence of a proxy for one of the respondents is recorded at the first instance, and later on the same day, the civil Court has dismissed the application recording that both the parties are absent. It is undisputed that the provisions of Order IX Rule 4 of CPC can be invoked when a suit is dismissed either under Rules 2 or 3 of CPC; Rule 2 of CPC provides for dismissal when there is any of the failures as mentioned therein, which is non payment of Court fee or postal charges or failure to produce requisite number of plaint copies, and Rule 3 of CPC provides for dismissal when neither the plaintiffs nor the respondents are present.
12. The presence of a proxy on behalf of one of the respondents at the first instance is recorded on 4.12.2009, and though it is contended that none for the respondents was present when the suit was called later on the same day, this Court is of the considered view 14 that it does not make a difference. In any event, it is seen from the records that the petitioners have not urged these grounds any time earlier and this canvass, that the application in Misc. Petition No.46/2007 must be construed as a petition under Order IX Rule 4 of CPC and not under Order IX Rule 9 of CPC, is taken up for the first time in the present petition. This Court is not therefore persuaded to opine that the petitioners' remedy as against the dismissal of Misc. Petition No.47/2007 on 04.12.2009 is only under Article 227 of the Constitution of India because it has no other alternative remedy. The petitioners having suffered an order of dismissal in Misc. Petition No.66/2010, and having withdrawn the writ petition filed impugning such dismissal, cannot resuscitate the application in Misc. No.47/2007.
13. The petitioners, to show sufficient cause for their absence on the date of the dismissal of Misc. 15 Petition No.47/2007, submit that when the petition was filed, the learned counsel informed them that he would ensure that they are kept updated of the progress in the application and because they did not receive any information, they contacted the learned counsel in the month of March 2010; a junior colleague attached to the learned counsel informed them that he would communicate the next date of hearing and when no communication was received, they contacted again and that is when they learnt that the petition was dismissed in the month of December 2009.
14. This reason cannot be construed as sufficient because there is nothing on record to explain why the petitioners did not pursue with their counsel even before March 2010 for effective prosecution of their petition, and as observed by a coordinate Bench of this Court in the writ petition in W.P. No.40488/2015 in circumstances that are very similar, the alleged failure 16 by a learned counsel to inform the parties about the proceedings cannot be accepted to allow the application under Order IX Rule 9 of CPC.
For the foregoing, the petition stands rejected.
SD/-
JUDGE AN/-