Karnataka High Court
Sri S M Shivakumar vs Sri S M Chikkanna on 5 July, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:23458
WP No. 21621 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.21621 OF 2022 (GM-CPC)
BETWEEN:
SRI S M SHIVAKUMAR
S/O LATE MUNIGOVINDAPPA,
AGED ABOUT 65 YEARS,
R/AT NO.31, 24TH CROSS,
KILARI ROAD,
BENGALURU-560 053.
...PETITIONER
(BY SRI. C PRAKASH.,ADVOCATE)
AND:
1. SRI S M CHIKKANNA
S/O LATE MUNIGOVINDAPPA,
AGED ABOUT 74 YEARS,
R/AT NO.794/1, 17TH F-2 MAIN ROAD,
Digitally 6TH BLOCK, KORAMANGALA,
signed by KILARI ROAD,
VANDANA
S BENGALURU-560 095.
Location:
High Court 2. SMT S R MAMATHA
of
Karnataka D/O LATE S M RAMESH,
W/O DR P MOHAN,
AGED ABOUT 53 YEARS,
R/AT NO.7, 16TH CROSS,
9TH MAIN, N S PALYA,
B.T.M LAYOUT, 2ND STAGE,
BENGALURU-560 078.
3. SMT RANI GOVINDARAJU V
W/O LATE S M GOVINDARAJU,
AGED ABOUT 53 YEARS,
R/AT NO.100, 3RD FLOOR,
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NC: 2023:KHC:23458
WP No. 21621 of 2022
14TH CROSS, KILARI ROAD,
BENGALURU-560 053.
4. SRI ANAND
S/O LATE NARASIMHA REDDY,
AGED ABOUT 58 YEARS,
R/OF DODDATHOGUR VILLAGE,
BEGUR HOBLI,
BENGALURU SOUTH TALUK.
...RESPONDENTS
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD
13.09.2022 ON I.A.NO.7 IN O.S.NO.796/2007 PASSED BY THE I
ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU VIDE ANNX-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by defendant No.1 in O.S.No.796/2007 is directed against the impugned order passed on I.A.No.7 on the file of the I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (for short "the Trial Court"), whereby the said application filed by plaintiff Nos.2 and 3 under Order IX Rule 4 CPC was allowed on payment of cost of Rs.3,000/- and order dated 01.08.2018 passed by the Trial Court dismissing the suit was set aside.
2. Heard learned counsel for the petitioner and perused the material on record.
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3. The material on record discloses that respondent Nos.1 to 3-plaintiffs instituted the aforesaid suit against the petitioner-defendant No.2 and other defendants for partition and separate possession of their alleged share in the suit schedule immovable property and for other reliefs. The said suit is being contested by the petitioner. On 01.08.2018, the Trial Court dismissed the suit for non-compliance of the order dated 20.07.2018 directing amendment of plaint, subsequent to which respondent Nos.2 and 3 filed the instant I.A.No.7 under Order IX Rule 7 CPC seeking setting aside/recalling of the said order. The said application having opposed by the petitioner, the Trial Court proceeded to pass the impugned order allowing I.A.No.7 and directing restoration of the suit by holding as under:
" ORDER ON I.A.NO.7 This is an application filed by plaintiffs No.2 and 3 under Order IX Rule 4 read with Section 151 Code of Civil Procedure, 1908 praying the Court to set aside order dated 01082018 dismissing the suit for non joinder of necessary parties and permit them to proceed with the suit on merits by restoring the same.
2. In support of the application, the 3rd plaintiff has filed affidavit stating that on framing of issues on 05 -04-- 2012, the 1st plaintiff led evidence on 30072012 and the -4- NC: 2023:KHC:23458 WP No. 21621 of 2022 matter was posted for cross examination of P.W.1. Thereafter the defendant came up with I.A.No.3 under Order 6 Rule 17 CPC and I.A.No.4 under Order 1 Rule 10(2) CPC on 13092012. Subsequently one Anand has filed application under Order 1 Rule 10(2) CPC. This Court was pleased to dismiss I.A.No.4 filed by the defendant. Likewise I.A.No.5 filed by Anand came to be allowed. The Court has given direction to amend the plaint. But the plaintiff No.1 and their counsel have not made any efforts to amend the plaint nor to represent the case on their behalf. It seems that their counsel was not diligent in conducting the case for the past two years. They have entrusted plaintiff No.1 to look after the affairs of the case as he is the eldest person in their family. They have kept good faith on him as well as their Advocate. But the plaintiff No.1 remained absent before the Court for the past two years. They have filed the suit for partition claiming 1/4th share in the suit schedule property. However the Court was pleased to dismiss the suit on 01082018 for non joinder of necessary party. They are having good case on merits. With these they have prayed to allow the application.
3. To this application, the defendant has filed objections contending that the application is not maintainable and requires to be rejected. The suit came to be dismissed on 01082018 for nonjoinder of necessary parties. With these the defendant has sought for dismissal of the application with exemplary cost.-5-
NC: 2023:KHC:23458 WP No. 21621 of 2022
4. Proposed defendant No.2 has also filed objections to this application in the similar lines.
5. I have heard the arguments of both sides and perused the I.A and entire records of the case.
6. The only point that arises for Court's consideration and decision is:
"Are there any grounds to allow the application?"
7. My findings to the above point for consideration is in the Affirmative for the following:
REASONS
8. Ongoing through the records it is seen that the plaintiffs have filed this suit for partition. It can be noticed that this Court has dismissed the suit on 01 082018 as the plaintiffs have filed with the order dated 20072018. As per order dated 20072018 a specific direction was given to the plaintiffs to amend the plaint by impleading defendant No.2 who is a necessary party to the suit.
9. At the out set it is to be noted that the learned counsel for the defendant opposing the present application argued that the present application is not maintainable since the plaintiffs ought to have filed a miscellaneous petition instead of the application. The learned counsel for the plaintiffs on the other hand argued that there is no such rule that the plaintiffs have to file miscellaneous petition to get the order set aside under Order IX Rule 4 CPC and therefore the present -6- NC: 2023:KHC:23458 WP No. 21621 of 2022 application filed them is maintainable. In his arguments he has also relied upon a decision of Hon'ble Orissa High Court reported in AIR 1996 Ori 232--Prahlad Pursty Vs. Sheokh Abdul Rahman. In this decision it was held that "generally a notice to the opposite party is not essential in a proceeding under Order IX Rule 4 CPC. There may, however be cases where a valuable right of the defendant may be effected. In such cases service of notice is mandatory. It is not necessary to examine whether service of notice in this case was mandatory as in fact without service of notice the defendant appeared in the case and wanted to contest". In the opinion of this Court this decision may not help the plaintiffs. It is because in the case on hand the defendant has appeared and filed objections to the present application.
10. Coming to the case on hand, it is relevant to note that Order IX Rule 4 CPC provides that where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in Rule 2, or for his non- appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
11. Reading of the above provision makes it amply clear that if a suit is dismissed under Rule 2 or 3 of Order IX CPC the plaintiff may apply to the Court to set aside the order of dismissal and the plaintiff is required to -7- NC: 2023:KHC:23458 WP No. 21621 of 2022 satisfy the Court that there was sufficient cause for his nonappearance.
12. Thus, the above provision does not contemplate a miscellaneous petition as contended by the defendant's counsel. What is mentioned in the provision is that the plaintiff has to apply for an order. In the instant case the plaintiffs No.2 and 3 have applied for an order to set aside the order of dismissal by making the subject application under Order IX Rule 4 CPC. Therefore the technical objection raised by the defendant cannot be countenanced since the Court may also treat the very application as civil miscellaneous petition. Therefore the contention urged in this regard does not hold any water.
13. Coming to the merits of the present application, I have gone through the reasons that are assigned by the 3rd plaintiff in her affidavit accompanying the present application. Ultimately she has stated that they are not aware of the fact that the 1st plaintiff who has been conducting the proceedings through their Advocate has not diligently prosecuted the matter. Though the defendant has denied the reasons assigned in the application, it appears to the Court that there is no reason to disbelieve the version of the 3rd plaintiff narrated in her affidavit. Admittedly the present application was filed on 24082018 seeking to set aside the order of dismissal which is within the period of limitation. Since the suit is for partition the grounds urged by the plaintiffs No.2 and 3 in the present application deserves favourable consideration as no serious -8- NC: 2023:KHC:23458 WP No. 21621 of 2022 prejudice will be caused to the defendant or the proposed defendant who is sought to be impleaded if the lis would be decided on merits giving an opportunity for the plaintiffs to proceed with the case and to comply with the order passed by this Court earlier for impleadment of proposed defendant No.2 in this case. This Court is also of the opinion that the plaintiffs No.2 and 3 have made out sufficient cause for their non appearance on the date of dismissal of the suit.
14. Taking into consideration all the above, the Court is of the opinion that the present application deserves to be allowed brushing aside the objections raised by the defendant as well as proposed defendant No.2. If the application is allowed imposing reasonable costs on the plaintiffs, the defendant could be compensated for the prejudice pleaded and it will also subserve the ends of justice. In view of all these I answer the point for consideration in the Affirmative and pass the following:
ORDER I.A.No.7 filed by the plaintiffs No.2 and 3 under Order IX Rule 4 read with Section 151 C.P.C is allowed on cost of Rs.3,000/ which shall be payable to the defendant.
The order dated 01082018 passed by this Court dismissing the suit is set aside.
The suit is ordered to be restored on board.-9-
NC: 2023:KHC:23458 WP No. 21621 of 2022 Both parties including the proposed defendant No.2 shall appear before this Court on 17102022 without excepting any notice from this Court.
The plaintiffs shall comply with the order dated 20-07-2018 for impleadment of proposed defendant No. 2 on the next date of hearing without fail.
For appearance of parties and
compliance by 17-10-2022."
4. Upon re-appreciation, re-evaluation and
reconsideration of the material on record along with the impugned order, I am of the view that the impugned order does not suffer from any illegality or infirmity nor can the same is said to have occasioned failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.
5. Accordingly, the writ petition is disposed of without interfering with the impugned order. However, since the suit is pending from the last 15 years, the Trial Court is directed to dispose of the suit as expeditiously as possible and preferably, on
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NC: 2023:KHC:23458 WP No. 21621 of 2022 or before 21.12.2023. All rival contentions are kept open and no opinion is expressed on the same.
Sd/-
JUDGE BMC