Karnataka High Court
Smt. Prabha Chandre Gowda vs Janaspandana Development Society on 21 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:11629
WP No. 362 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 362 OF 2024 (GM-CPC)
BETWEEN:
SMT. PRABHA CHANDRE GOWDA
W/O LATE B.C.CHANDREGOWDA
AGED ABOUT 81 YEARS
R/O CHANNAPURA ROAD, KOTE
CHIKKAMAGALURU CITY - 577 101
ALSO R/O NO. 502,
EMBASSY ORCHID APARTMENT
8TH MAIN ROAD, SADASHIVA NAGAR
BANGALORE - 560 080
...PETITIONER
(BY SRI. MUJTABA H., ADVOCATE)
AND:
JANASPANDANA DEVELOPMENT SOCIETY
A SOCIETY REGD. UNDER THE
Digitally PROVISIONS OF KARNATAKA
signed by SOCIETIES REGISTRATION ACT, 1960
SUMITHRA R REPRESENTED BY ITS SECRETARY
Location: SRI.RAMACHANDRA
HIGH COURT AGED ABOUT 53 YEARS
OF HOUSE NO.159, BANASIRI NILAYA, 3RD STAGE
KARNATAKA HOUSING BOARD, JYOTHINAGARA POST
CHIKKAMAGALURU CITY - 577 101
...RESPONDENT
(BY SRI. K.R.LINGARAJU, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD
16.09.2023 PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, CHIKKAMAGALURU IN C.MIS.NO.38/2021 VIDE
ANNEXURE-A AND ETC.
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NC: 2024:KHC:11629
WP No. 362 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This petition by the petitioner in C.Mis.No.38/2021 on the file of II Additional Senior Civil Judge and JMFC, Chikkamagaluru is directed against the impugned order dated 16.09.2023 passed by the Trial Court whereby the said petition filed under Order IX Rule 4 (sic Rule 8) of CPC, seeking setting aside of the order dated 21.09.2021 dismissing the suit in O.S.No.103/2018 for non prosecution, was rejected by the Trial Court.
2. Heard learned counsel for the parties.
3. A perusal of the material on record would indicate that the petitioner instituted a suit in O.S.No.103/2018 against the respondent/defendant for declaration of title, recovery of possession and other reliefs in relation to the suit schedule immovable property. The said suit having been posted on a number of occasions for evidence, the petitioner/plaintiff did not appear, as a result of which the Trial Court came to the conclusion that sufficient opportunity had been granted and rejected the application for adjournment filed by the plaintiff/petitioner and -3- NC: 2024:KHC:11629 WP No. 362 of 2024 proceeded to dismiss the suit for non-prosecution vide order dated 21.9.2021. Subsequently, the petitioner filed the instant petition invoking Order IX Rule 4 (sic Rule 9) CPC seeking restoration of the suit on the ground that due to her ill-health and old age, she was not in a position to travel from Bengaluru to Chikkamagaluru, especially in the light of the prevailing Covid-19 pandemic and as a result of which she could not appear before the Trial Court. It was also contended that even her daughter, GPA holder of the petitioner/plaintiff, could not attend the Trial Court due to bonafide reasons, unavoidable circumstance and sufficient cause. Under these circumstances, the petitioner/ plaintiff sought for setting aside dismissal of the suit and for restoration of suit to the file of the Trial Court.
4. The respondent-defendant opposed the petition in C.Mis.No.37/2021 by filing their objections and contending that sufficient and reasonable opportunity had been provided in favour of the petitioner who did not exercise due diligence in prosecuting the suit and Trial Court was fully justified in dismissing the suit for non-prosecution and the order dismissing the suit for default did not deserve to be set aside.
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NC: 2024:KHC:11629 WP No. 362 of 2024
5. On behalf of the petitioner, her daughter-GPA holder was examined as PW.1 and the two general powers of attorney were marked as Exs.P.1 and P.3. PW.1 was cross examined by the respondents/defendants who did not adduce oral and documentary evidence.
6. After hearing the parties, the Trial Court came to the conclusion that the alleged general powers of attorney produced at Exs.P.1 and P.3 were defective, invalid and the same were not sufficient to authorize or empower the GPA holder to adduce evidence on behalf of the petitioner. Under these circumstances, the Trial Court came to the conclusion that there was no express or implied ratification as required under Section 197 of the Indian Contract Act, 1872 and the evidence of PW.1 was wholly insufficient to make out valid and sufficient grounds for non-appearance on the date the suit was dismissed for non-prosecution. The Trial Court dismissed the miscellaneous petition also by passing the impugner order. Aggrieved by the impugned order passed by the Trial Court, the petitioner is before this Court by way of the present petition. -5-
NC: 2024:KHC:11629 WP No. 362 of 2024
7. Learned counsel for the petitioner submits that the petitioner has an excellent case to argue on merits and the balance of convenience is in favour of the petitioner. The petitioner is aged about 80 years and is completely dependent on her daughter, GPA holder (PW.1) to conduct her case on her behalf. It is also submitted that if the impugned order is set aside by imposing certain terms and conditions upon the petitioner and permitting her to prosecute the suit on merits, the petitioner would do so without seeking any unnecessary adjournments as such, the impugned order is to be set aside and the suit is to be restored to the file of the Trial Court.
8. Per contra, learned counsel for the respondent submits that there is no merit in the petition and the same is liable to be dismissed.
9. A perusal of the impugned order would indicate that the Trial Court has adopted hyper technical approach in discarding the evidence of PW.1 and drawing adverse inference against the petitioner for non-appearance either on the date when the suit was dismissed for default or during the pendency of the miscellaneous proceedings. However having regard to the specific assertion on -6- NC: 2024:KHC:11629 WP No. 362 of 2024 the part of the petitioner that her inability and omission to appear in the suit as well as in the miscellaneous proceedings was due to her old age and ill-health and that her power of attorney/GPA holder also could not exercise due diligence in prosecuting the proceedings due to bonafide reasons, unavoidable circumstance and sufficient cause, by adopting a justice oriented approach and in the light of the nature of the suit and the relief sought for by the petitioner/plaintiff involving valuable, proprietary and possessory rights of the parties over the suit schedule immovable property, I deem it appropriate to provide one more opportunity to the petitioner to prosecute the suit on merits by setting aside the impugned order and remitting the matter back to the Trial Court for disposal of the suit on merits in accordance with law subject to certain terms and conditions :
10. In the result, the following:
ORDER [i] The petition is hereby allowed.
[ii] The impugned order dated 16.09.2023 passed by the II Additional Senior Civil Judge and JMFC, Chikkamagaluru in C.Mis.No.37/2021 is hereby set aside;-7-
NC: 2024:KHC:11629 WP No. 362 of 2024 [iii] C.Mis.No.37/2021 stands allowed;
[iv] The suit in O.S.No.103/2018 is restored to the file of the Trial Court subject to payment of cost of Rs.10,000/- by the petitioner to the respondent on the next date of hearing of the suit before the Trial Court.
[v] The parties undertake to appear before the Trial Court without waiting for further notice on 22.04.2024. The Trial Court is directed to proceed further in the matter and dispose of the suit in accordance with law.
SD/-
JUDGE rs