Bangalore District Court
Sri C.Rajan @ Anthony Cruze vs Sri C.Sukamaran @ Robert on 19 February, 2015
IN THE COURT OF THE XXXVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE CITY. (CCH-39)
Present: Sri B.Muralidhara Pai,
B.Com,LL.B.,
XXXVIII Addl. City Civil & Sessions Judge,
Bangalore City.
Dated this the day of 17th day of September 2013.
Miscellaneous Petition No.785/2012
Petitioner : Sri C.Rajan @ Anthony Cruze,
(Plaintiff in O.S. S/o Late Chinnappa,
No.6186/2008) Aged about 53 years,
Residing at No.104, 4th Cross,
7th Main, Gauthamnagar,
Srirampuram,
Bangalore-560021.
(By Sri T.S.Venkatesh-Advocate)
Vs.,
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Misc.No.785/2012
Respondents : 1. Sri C.Sukamaran @ Robert,
(Defendants in O.S. S/o Late Chinnappa,
No.6186/2008) Aged about 51 years,
Residing at No.95, 4th Cross,
7th Main, Gauthamnagar,
Srirampuram,
Bangalore-560021.
2. Smt. Rani @ Hrudaya Rani,
D/o Late Chinnappa,
Aged about 47 years,
Residing at No.95B, 4th Cross,
7th Main, Gauthamnagar,
Srirampuram,
Bangalore-560021.
3. Smt. Kala @ Catherine,
D/o Late Chinnappa,
Aged about 45 years,
Residing at No.95C, 4th Cross,
7th Main, Gauthamnagar,
Srirampuram,
Bangalore-560021.
4. Smt. Latha @ Sagaya Mary,
D/o Late Chinnappa,
Aged about 49 years,
Residing at No.95D, 4th Cross,
7th Main, Gauthamnagar,
Srirampuram,
Bangalore-560021.
(R-1 to 4....Exparte)
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ORDERS
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Misc.No.785/2012
The Plaintiff in O.S. No.6186/2008 has maintained this
petition u/O IX Rule 4 and 9 of CPC praying to set aside Order
dated 08.03.2012 and to restore the suit on file, in the interest
of justice and equity.
2. The notice of this petition was served personally on
Respondents No.2 to 4 through the Court on 22.12.2012.
Further, notice was served on Respondent No.1 by RPAD on
07.11.2012. Inspite of the same, none of the Respondents
appeared before the Court. Hence, they were placed exparte.
3. During enquiry of this petition, the Petitioner
deposed before the Court as P.W.1 and got marked
documents at Ex. P-1 and P-2.
3. Heard the Counsel for the Petitioner.
4. The following points would arise for consideration
of this Court:
1. Whether the petition is in time?
2. Whether the Petitioner has made out a ground for
allowing this petition?
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Misc.No.785/2012
3. What order?
6. The findings of this Court on the above points are as
under:
Points No.1 and 2 : In the Negative;
Point No.3 : As per final order, for the following
REASONS
7. Point No.1 : The Petitioner has maintained this
petition u/O IX Rule 4 and 9 of CPC praying to set aside order
dated 08.03.2012 passed in O.S. No.6186/2008 and to
restore the suit on file. He has maintained the present petition
on 20.10.2012. That means he has maintained this petition
after 7 months from the date of impugned order. The case
papers reveal that the Petitioner has not maintained any
application seeking for condonation of delay in filing the
petition. At the time of restoring case, the office had noted its
objections regarding delay in filing the petition. This Court had
issued notice of this petition to the Respondents, keeping
open the said objection.
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Misc.No.785/2012
8. During the course of argument, the Counsel for the
Petitioner relied on a decision in K.Sudhakar V/s Ind Vank
Housing Limited and others [AIR 2008 (NOC) 222 (A.P.)] and
submitted that the present petition was filed within stipulated
time. In the above referred decision, Hon'ble High Court of
Andhra Pradesh held that " When an application made u/O IX
Rule 4, 9 or 13 of CPC for setting aside a suit dismissed for
default is itself dismissed for default and an application under
Rule 4 or 9 of Order IX is made for restoration of the
application, the period of limitation for making such application
for restoration is governed by Article 137 of Limitation Act,
1963 and the period of limitation is three years." However, the
principles laid down in the said decision is not applicable to the
case on hand, It is because this petition is not a petition
maintained for restoration of petition filed u/O IX Rule 4, 9 or
13 of the CPC. On the other hand, this petition is maintained
praying to restore the suit in O.S. No.6186/2008. As such,
the present petition is governed under Article 122 of the
Limitation Act, which prescribes thirty days period from the
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Misc.No.785/2012
date of dismissal of suit. Thereby, it becomes clear that the
present petition is clearly barred by time. As such, Point No.1
is answered in the Negative.
9. Point No.2 : Even otherwise, if we consider the
petition on merits of the case, it becomes clear that the
Petitioner has not shown sufficient cause for his absence
before the Court on the date of impugned order. In the petition
as well as in his evidence, the Petitioner has merely stated
that as he was suffering from age old illness, he could not lead
his evidence on 08.03.2012. The Petitioner has not produced
any document before the Court to show that on the said date
he was suffering from any illness. On the other hand, the
materials on record indicate that the Petitioner was aged about
53 years as on the date of impugned order. In the absence of
any medical record to show alleged illness of the Petitioner it is
to be presumed that he was hale and healthy and there was
no justification much less valid justification for his absence
before the Court on the relevant date. In view of the same,
this Court holds that the Petitioner has failed to show sufficient
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Misc.No.785/2012
cause for his absence before the Court in O.S. No.6186/2008
on 08.03.2012. Hence, Point No.2 is answered in the
Negative.
10. Point No.3 : In the result this Court proceeds to pass
the following
ORDER
The petition filed u/O IX Rule 4 and 9 of CPC is dismissed. No cost.
(Dictated to the Judgment writer, transcribed by her, corrected and then pronounced by me in the open Court on this the 17th day of September 2013).
(B.Muralidhara Pai), XXXVIII Addl. City Civil and Sessions Judge, Bangalore City.
ANNEXURE List of witnesses examined on behalf of the Petitioner :
P.W.1 : Sri C.Rajan @ Anthony Cruze List of documents marked on behalf of the Petitioner :
Ex. P-1 : Certified copy of the Order Sheet in O.S. No.6186/2008 Ex. P-2 : Certified copy of the plaint in O.S. No.6186/2008 8 Misc.No.785/2012 List of witnesses examined on behalf of the Respondents:
- Nil -
List of documents marked on behalf of the Respondents :
- Nil -
XXXVIII Addl. City Civil and Sessions Judge, Bangalore City.
Order pronounced in the open Court (vide separate order) with the following operative portion.
ORDER The petition filed u/O IX Rule 4 and 9 of CPC is dismissed. No cost. 9 Misc.No.785/2012 XXXVIII A.C.C. & S.J., Bangalore.