Karnataka High Court
Sri J Sandeep vs M/S B Ramalingappa And Sons on 31 January, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2026:KHC:5459
WP No. 38906 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 38906 OF 2025 (GM-CPC)
BETWEEN:
1. SRI J SANDEEP
S/O. SRI R. JAYADEV,
AGED ABOUT 48 YEARS,
RESIDING AT NO. D-79,
LAKSHMI ESWAR RAO BUILDING,
DOLLARS SCHEME COLONY,
CIRCULAR ROAD, NANDINI LAYOUT,
BANGALORE - 560 096.
...PETITIONER
(BY SRI. RAMESH CHANDRA, ADVOCATE)
AND:
Digitally signed 1. M/S B.RAMALINGAPPA AND SONS
by
SHARADAVANI (A REGISTERED PARTNERSHIP FIRM),
B
Location: High HAVING ITS PLACE OF BUSINESS AT
Court of NO. 48/1, 49/2, SHOP NOS.1 AND 2,
Karnataka
2ND MAIN ROAD, 2ND CROSS,
A.P.M.C (R.M.C YARD),
YESHWANTHPUR,
BANGALORE - 560 022.
REPRESENTED BY ITS
ALLEGED PARTNER
SRI N.S. MOHAMED RABBANI
2. SRI N.S. MOHAMED RABBANI
S/O. LATE SRI SYED NAZIR AHMED,
AGED ABOUT 27 YEARS,
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WP No. 38906 of 2025
HC-KAR
3. MRS. RAZIYA BEGUM,
W/O. LATE MR. SYED BASHEER AHMED,
AGED ABOUT 53 YEARS,
4. SRI SYED AMEEN,
S/O. LATE SRI SYED BASHEER AHMED,
AGED ABOUT 41 YEARS
5. MRS. ASIYA BEGUM
W/O. LATE SRI SYED NAZIR AHMED,
AGED ABOUT 54 YEARS,
(RESPONDENTS 2 TO 5 CLAIMING ARE
PARTNERS OF RESPONDENT NO. 1 FIRM)
RESPONDENTS 2 TO 5,
R/AT NO. 48/1, AND 49/2
SHOP NO. 1, 2ND MAIN ROAD,
2ND CROSS, A.P.M.C. (R.M C YARD)
YESHWANTHPUR, BENGALURU, 560 022.
6. SRI.R JAYADEV
S/O SRI B RAMALINGAPPA
AGED ABOUT 72 YEARS,
R/AT NO. 48, 8TH CROSS,
3RD MAIN, GANESH BLOCK,
MAHALAKSHMI LAYOUT,
BENGALURU 560 086.
7. SRI J SATHISH
S/O M JAYADEV
AGED ABOUT 40 YEARS
R/AT NO. 48, 8TH CROSS,
3RD MAIN, GANESH BLOCK,
MAHALAKSHMI LAYOUT,
BENGALURU 560 086.
8. THE BANK MANAGER
SRI. THAYAGARAJA CO-OPERATIVE
BANK LTD, N R COLONY
BENGALURU 560019
...RESPONDENTS
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NC: 2026:KHC:5459
WP No. 38906 of 2025
HC-KAR
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALLING FOR THE
RECORDS IN MIS 1643 OF 2022 ON THE FILE OF XII
ADDITIONAL CITY CIVIL AND SESSION JUDGE, BENGALURU
(CCH-27), BENGALURU, QUASH AND SET AIDE THE ORDER
DATED 8-10-2025 FILED UNDER ORDER IX RULE 4 READ WITH
SECTION 151 OF CODE OF CIVIL PROCEDURE, IN MIS 1643 OF
2022 ON THE FILE OF XII ADDITIONAL CITY CIVIL AND
SESSION JUDGE, BENGALURU (CCH-27) AS PER ANNEXURE A
AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by respondent No.2 in Misc.No.1643/2022 is directed against the impugned order dated 08.10.2025 passed by the XII Additional City Civil and Sessions Judge, Bengaluru, whereby the said petition filed by respondents Nos.1 to 5 under Order IX Rule 4 of CPC seeking restoration of O.SNo.1007/2017 which was dismissed for non-prosecution on 19.11.2022 was allowed by the trial Court.
2. Heard learned counsel for the petitioner and perused the material on record.
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3. A perusal of the material on record will indicate that respondent Nos.1 to 5/plaintiffs instituted the aforesaid suit against the petitioner/defendant No.2 and other defendants for declaration, permanent injunction and other reliefs in relation to the suit schedule immovable properties. The said suit was posted before the trial Court on 19.11.2022, on which date the trial Court dismissed the suit for non-prosecution. Subsequently respondent Nos.1 to 5/plaintiffs having filed the instant Miscellaneous Petition seeking recalling of the said order and for restoration of the suit, the trial Court recorded oral and documentary evidence of both sides and proceeded to pass the impugned order allowing the Miscellaneous Petition by holding as under.
"ORDERS The present petition filed by the petitioner against the respondent under Order IX Rule 4 read with Section 151 of CPC to restore the original suit No. 1007/2017 and recall the order dated 19.11.2022 in the interest of justice and equity.
2. The petitioner submitted that the suit was Posted for further evidence of the plaintiff wherein the plaintiff was supposed to file the necessary documents and get the same marked before the court. But the original documents pertaining to the suit are kept in the safe custody of the court in OS No.776/2015 which is pending before CCH 41. On -5- NC: 2026:KHC:5459 WP No. 38906 of 2025 HC-KAR that ground, the petitioner are unable to produce the document before this court in the original suit. Even those documents are not marked in OS.No.776/2015. According to the petitioner, petitioners filed an application under Section 151 of CPC requesting the court to return the original documents so as to enable the petitioners to produce the same before this court in the original suit. But that application came to be rejected informing the petitioners that the original documents cannot be returned until the disposal of the suit. Only on that ground the petitioners disabling them from producing the documents before this court and getting those documents marked through plaintiff.
3. When the documents are in the safe custody before the Hon'ble Court in CCH 41, the petitioners requested that matter may kindly be adjourned to another date and enable them to lead evidence in that matter pending on the file of the CCH 41, in order to take the certified copies of the document. But that request was denied and the suit came to be dismissed for default. As such, the present petition filed by the petitioner against the respondent. According to the petitioner's, if the petition is not allowed they will be put to irreparable hardship, loss, injustice and substantial injury which cannot be compensated in terms of money. On the other hand, no injustice, hardship and inconvenience will be caused to the respondent. Hence, prays for allowing the petition in the interest of justice and equity and also seeking order to recall the order dated 19.11.2022 and restore the original suit No. 1007/2017 to its original stage, in the interest of justice and equity.
4. After the service of notice to respondent Nos.1 and 3 through paper publication remained absent. Hence both respondent Nos. 1 and 3 placed exparte. Only respondent Nos.2 and 4 appeared before this court. Only Respondent No. 2 files objection to the -6- NC: 2026:KHC:5459 WP No. 38906 of 2025 HC-KAR main petition. Even though respondent No.4 appeared before the court through his counsel, but not filed any objection to the main petition. As such, as per order dated 31.03.2023 objection of respondent no. 4 to the main petition taken as not filed.
5. The gist of the objection statements filed by the respondent No.2 is as follows:- According to respondent No.2, the present petition is not maintainable either on law or on facts and O.S.No.1007/2017 was dismissed for default, since the plaintiff has failed to lead evidence and it is dismissal when the defendant only appears. As such, Order IX Rule 4 of CPC is not maintainable. On that ground itself, the petition ought to have been dismissed. According to Respondent No.2, the dismissal of the suit after service of summons and proper course is not filing an application under Order IX Rule 4 of CPC. The petitioner has not given any cause for their non appearance before the court on that day.
6. According to Respondent No.2, petitioners were not present deliberately and despite paying costs, they failed to lead evidence before the court. The suit was dismissed due to gross negligence of the plaintiffs and it cannot be restored for want of sufficient cause for their non appearance before the court and the date fixed for their evidence. The petitioners have not given any reason for their non appearance before the court. Hence, the suit was dismissed for non prosecution. When the suit was dismissed for default, it cannot be restored unless valid and sufficient cause for their non appearance is shown. Respondent No.2 submits that it is false that when the suit was posted for further evidence of plaintiff, the plaintiff was supposed to file the necessary documents and get the same marked before the court. In spite of, sufficient opportunity given to the plaintiff to get back the documents but -7- NC: 2026:KHC:5459 WP No. 38906 of 2025 HC-KAR not adduced the evidence. It is also denied that the original documents are kept in the safe custody of the court in OS No.776/2015. On that ground, the petitioner is not able to produce those documents before the court in suit. The respondent is not aware of filing application seeking return of the document and the rejection of that application. No further action taken by the plaintiff to lead the evidence. If the application is rejected, then the petitioner has not challenged the order. Moreover, the petition filed by the petitioner under Order IX Rule 4 read with Section 151 of CPC is not maintainable. The petitioners have not made out any sufficient grounds for allowing the application. If the petition is allowed, more injustice, inconvenience and loss caused the respondent and no inconvenience and injustice will be caused to the petitioner. On that ground, prays for rejection of the petition in the interest of justice and equity.
7. In support of the case of the petitioners, petitioner No.4 examined himself as PW1 and also got marked Exhibit P1 to P3. On behalf of the respondent, respondent No.2 examined as RW1 but no document marked through RW1.
8. The point for consideration on the basis of the petition averments and objection is as follows:
1: Whether the petitioners have made out ground for allowing the petition and also recall order dated 19.11. 2022 in OS No. 1007 of 2017 and to restore The original suit to its original stage, for the reason as stated in the petition averments?
2: What order?
9. My answer to the point no. 1 is in the Affirmative for the following:-
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10. According to the petitioners as well as the evidence of PW1, petitioners have filed OS No. 1007/2017 against the respondents for the reason that when the suit was posted for further evidence, by that time the petitioners were supposed to file the necessary documents and get the same marked before this court. But the original documents pertaining to the case were kept in safe custody of the court in OS No. 776/2015, which was pending before CCH 41. But the petitioners were unable to produce those documents at the time of their evidence. Even those documents are not marked in OS.No.776/2015. The petitioners filed an application under Section 151 of CPC requesting the court to return the original documents so as to enable us to produce the same before this court, but that application came to be rejected informing the petitioners that the original documents cannot be returned until the disposal of the suit in O.S.NO.776/2015. Only on that ground the petitioners were unable to produce the document before this court in the original suit. In support of this oral evidence, PW1 has relied upon Ex.P1, the certified copy of the application under Section 151 of CPC. This application reflect that the petitioners herein filed the above said application before CCH 41 in OS No. 776/2015 with request to return the original documents produced by the plaintiff. The affidavit annexed to the application in Para No.4, the petitioners herein have categorically on oath narrated that, "it is submitted that at the time of filing the case, the plaintiff have produced all the original documents in support of their case and those documents yet to be marked as exhibits. But however the plaintiffs have also filed another suit in -9- NC: 2026:KHC:5459 WP No. 38906 of 2025 HC-KAR OS.No.1007/ 2017 pending on the file of City Civil Court, CCH-27, Bangalore and that case is finally posted for evidence. Thereby, the documents produced in this case, which are in safe custody, which are yet to be marked, may kindly be ordered to return the same, in order to those documents in the above said case, failing which the plaintiff will be put to irreparable loss and substantial injury for the reasons that the learned judge CCH 27 has posted the matter finally as last chance on 19.11.2022 for evidence. "
11. In the application itself, the petitioner herein requested the court, which reads thus:
In the above said facts and circumstances, it is just necessary that the Hon'ble Court may be pleased to order to return the documents produced in this case, which are in safe custody, and the plaintiff undertakes to file the certified copies of those documents in this case immediately after the documents marked as exhibits, it would be in the interest of justice to do so. "
Ex.P1 is the interlocutory application filed by the petitioners herein on 18.11.2022 before CCH.41 in OS No. 776/2015.
12. By keeping in mind these facts, on careful perusal of the Ex.P2 certified copy of the order sheet in OS No. 776/2015 in the order sheet dated 18.11.2022, the office endorsement reflect that advocate for plaintiff has filed an application under Section 151 of CPC to advance the case from 14.12.2022 to 18.11.2022. On that day itself, in the order sheet, it reflects that this case is taken on today's board on the advancement application. The counsel for
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NC: 2026:KHC:5459 WP No. 38906 of 2025 HC-KAR the plaintiff files application under Section 151 of CPC for returning the original documents. The office endorsement and the order sheet in OS No. 776/2015 itself goes to show that the petitioners herein filed application under Section 151 CPC before CCH 41 for return of the documents in OS No.776/2015. On perusal of the order sheet in OS No. 1007/2017 dated 19.11.2022, it reflect that:-
Learned counsel for the defendant prays time to lead plaintiff evidence. Learned counsel for the defendant opposed to grant an adjournment for the plaintiff evidence on ground that this court granted many adjournments even on costs for plaintiff evidence. Despite the fact stood thus the plaintiff seeking an adjournment for plaintiff evidence. Thus prays to dismiss the suit for default. By virtue of the Submission of both the plaintiff and defendant counsel. This court ordered that, on perusal of the order sheet, as rightly contended by the learned counsel for the defendant since 10.08.2020, the matter is pending for plaintiff's evidence. After that, on the prayer of the plaintiff granted many adjournments for plaintiff's evidence.
Even on the last date of hearing granted time as last chance on costs. Despite the fact stood thus, the plaintiff seeking further adjournment. In fact, this court found no genuine reason to grant further adjournment for plaintiff evidence. Thus, the prayer of the plaintiff is hereby rejected and suit is dismissed for default."
With the above said observation, the court dismissed the OS No. 1007/2017.
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13. Ex.P1 reflect that the petitioner herein filed application under Section 151 of CPC in OS.No.776/2015 for returning of the document on 18.11.2022, but on 19.11.2022 the suit filed by the plaintiff in OS No. 1007/15 dismissed by this court for non production of the document and not adduce evidence. The reason assigned by the petitioners and the evidence of PW1 is supported by Exs-P1, P2 and P3.
14. According to respondent No. 2, the petition filed by the petitioner under Order IX Rule 4 of CPC is not maintainable. Regarding this defense, on careful perusal of the Wordings as employed in Order IX Rule 4 of CPC, which reads thus:
Plaintiff may bring fresh suit or court may restore suit to file. 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.
15. By virtue of the wordings as spelt out in Order IX Rule 4 of CPC, on careful perusal of Rule 3, it reads thus:
Where neither party appears, when the suit is called on for hearing, the Court may make an order that the suit be dismissed. By keeping in mind the wordings as spelt
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NC: 2026:KHC:5459 WP No. 38906 of 2025 HC-KAR out in Rule 3 and Rule 4 CPC, on careful perusal of the order dated 19.11.2022 in OS.No.1007/2017, it is crystal clear that on the day of dismissal of the suit, counsel for the plaintiff present before the court and prays time him for plaintiff's evidence. On that day, counsel for the defendant present before the court and opposed for adjourning the case for plaintiff's evidence. On that day, plaintiff and Defendant not appeared before the court, only their respective counsel present before the court. As such, Order IX Rule 3 of CPC is applicable to the case on hand. When Order IX Rule 3 of CPC is applicable, then the present petition filed by the petitioners under Order IX Rule 4 of CPC is maintainable in the court in accordance with the law.
16. In support of the objection filed by respondent No.2 himself examined as RW.1, but not produced any relevant document, except reiterate the objection statement, no document produced in support of his evidence. But the evidence of PW1 as well as their petition averments is supported with Ex.P1 to P3. The petitioner has made out sufficient grounds and proper reason for recalling the order dated 19-11-2022 in O.S.No.1007/2017 and also the petitioners have made out ground and reason to restore the suit in OS.No.1007/2017 to its original stage. In view of the aforesaid discussions, without any hesitation I answer point No. 1 in the Affirmative.
17. Point No.2: In view of the discussions on Point No.1, I proceed to pass the following :ORDER:
Petition filed by the petitioner under Order IX Rule 4 of CPC is hereby allowed
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NC: 2026:KHC:5459 WP No. 38906 of 2025 HC-KAR with cost of ₹2,000/- and order dated 19.11.2022 in O.S.NO.1007/2017 is hereby recalled and Original Suit No.1007/2017 is restored to its original stage.
Counsel for the petitioners is hereby directed to deposit the above said cost within 15 days from the date of this order and officer is hereby directed to put up the original record in OS.No.1007/2017 after the deposit of the cost."
4. A perusal of the material on record including the impugned order will indicate that the trial Court has correctly and properly adopted a justice oriented approach and in order to provide one more opportunity to the respondent Nos.1 to 5/plaintiffs passed the impugned order, which cannot be said to have occasioned failure of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam and Ors. v. Chhabi Nath and Ors [(2015) 5 SCC 423], K.P.Natarajan and Ors. v.
Muthalammal and Ors [AIR 2021 SC 3443] and Mohd. Ali v. V.Jaya [(2022) 10 SCC 477].
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5. Under these circumstances, I do not find any merit in the petition and the same is accordingly disposed of without interfering with the impugned order.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE VM List No.: 1 Sl No.: 4