Karnataka High Court
M/S Sri Krishna Smelters Ltd vs M/S Sri Lakshmi Traders on 13 October, 2020
Author: S.G.Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2020
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
CRP No. 65/2013 (M)
BETWEEN:
M/S. SRI KRISHNA SMELTERS LTD.,
S.F.NO.110/101, 110/E
IVELT VILLAGE
ANKKAMPET POST
SANKARI DURG
SALEM DISTRICT
REP. BY ITS MANAGING DIRECTOR
SRI DURAISAMY.
...PETITIONER
(BY SRI SHASHANK, ADV. FOR
SRI M.G. KUMAR, LAW FIRM, ADVs.)
AND:
M/S. SRI LAKSHMI TRADERS
NO.46, 2ND CROSS
SAIBABANAGAR
BANGALORE- 560021
REP. BY ITS PARTNER
SRI V BABU.
...RESPONDENT
(V/O DATED 04.06.2014 SERVICE OF NOTICE TO RESPONDENT
IS H/S)
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 04.08.2012 PASSED ON
APPLICATION IN MISC.NO.420/2008 ON THE FILE OF THE III
ADDL.CITY CIVIL JUDGE, BANGALORE, ALLOWING THE
PETITION FILED UNDER ORDER 9 RULE 4 R/W SECTION 151
OF CPC., FOR SETTING ASIDE THE DISMISSAL ORDER DATED
2
10.03.2008 IN O.S.NO.5861/2002 AND FOR RESTORATION OF
THE SAME FOR FURTHER PROCEEDINGS.
THIS CRP COMING ON FOR HEARING THROUGH VIDEO
CONFERENCE THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This revision petition filed under Section 115 of CPC is against the order dated 04.08.2012 passed in Miscellaneous No.420/2008 on the file of III Additional City Civil Judge at Bangalore, by which the petition filed under Order IX Rule 4 of CPC, is allowed.
2. For the sake of convenience the parties to the present revision petition would be referred to as they stand in Miscellaneous petition.
3. The petitioner herein is respondent and respondent herein is petitioner in the said Miscellaneous Petition. The plaintiff filed suit in O.S.No.5861/2002 for recovery of money. On service of summons, the defendant filed written statement. Thereafter issues were framed on 04.09.2003. The 3 petitioner was given time to file list of witnesses and documents. After six adjournments, on 17.11.2005 it was taken the petitioner has not filed list of witnesses and documents. Thereafter the suit was posted for plaintiff's evidence on 24.02.2006. After taking four adjournments to lead evidence, on 24.08.2007 the petitioner filed affidavit evidence and also marked Exs.P1 to P20. Thereafter he took many adjournments and failed to appear before the Court. As the petitioner was absent on 10.03.2008 the suit came to be dismissed for default. The plaintiff filed Miscellaneous petition under Order IX Rule 4 of CPC on 26.05.2008 along with I.A.No.1 under Section 5 of the Limitation Act to condone the delay of 12 days in filing the Miscellaneous petition. The Trial Court after recording the evidence and after hearing both the parties under the impugned order allowed the Miscellaneous petition and restored the suit to its file by imposing cost of Rs.1,000/- and also observed in default the suit stands 4 dismissed. Against which the defendant is before this Court in this Revision Petition.
4. Heard Sri. Shashank, learned counsel for Sri. M.G. Kumar, learned counsel for the petitioner. Service of notice on the respondent is held sufficient by order dated 4.6.2004. The learned counsel for the petitioner would submit that the learned Trial Judge committed an error in allowing the Miscellaneous Petition and submits that no ground is made out to allow the Miscellaneous Petition. The petitioner was given sufficient time to lead evidence and to produce the document of registration of firm, but he failed to produce the same and also failed to appear before the Court. The Trial Court having no other option dismissed the suit for default. Learned counsel would submit that no sufficient cause is shown for non appearance of the plaintiff, to restore the suit. Hence restoration of the suit is wholly erroneous. 5
5. Having heard the learned counsel for the petitioner and having perused the entire Trial Court records, I am of the view, that the petitioner has not made out any ground to interfere with the order of the trial Court allowing the Miscellaneous Petition filed under Order IX Rule 4 of CPC and restoration of O.S.No.5861/2002.
6. The suit of the plaintiff was for recovery of money. The defendant appeared and filed written statement, thereafter issues were framed and time was granted to file list of witnesses and documents. As the plaintiff failed to produce the list of witnesses and documents, on 17.11.2005 the suit was posted for evidence. After taking many adjournments the plaintiff filed affidavit evidence and also marked the documents Exs.P1 to P20. Subsequently on two occasions the petitioner failed to appear and on 10.03.2008 also the petitioner failed to appear for leading further evidence and cross of 6 PW.1, as such the Court dismissed the petition for default. Miscellaneous Petition was filed under Order IX Rule 4 of CPC stating that the required document i.e., the registration of firm certificate was filed in O.S.No.5812/2002 and had requested the counsel to take adjournment for applying certified copy in the said suit. The delay in filing the Miscellaneous Petition was 12 days. Having satisfied with the reasons assigned the trial Court in its discretion allowed the application and condoned the delay of 12 days.
7. Order IX Rule 4 of CPC permits the Court to restore the suit if one satisfies the Court that there was sufficient cause for non-appearance. The Trial Court having satisfied itself with the cause shown allowed the petition and restored the suit. A reading of the impugned order would indicate that the trial Court after going through the evidence and material on record was of the opinion that the Miscellaneous Petition is to be 7 allowed. The Trial Court has accepted reasons that the petitioner could not meet his Advocate for some time due to fracture of his right leg in the accident which made him to take six months bed rest. The parties should always fight it out on merit and should not depend on technicalities. As such, I find no ground to interfere with the order of the trial Court that too in a revisional jurisdiction. Under revisional jurisdiction it could be interfered with only if material or jurisdictional error is pointed out. In the instant case, the petitioner has failed to point out any material or jurisdictional error based on the material on record.
8. Lastly the learned counsel for the petitioner submits that the trial Court has imposed costs of Rs.1,000/- which was to be deposited within 10 days, which the petitioner had failed to deposit. As such he submits that the petitioner would not be entitled for restoration of the suit, whether the petitioner deposited 8 the costs within 10 days or thereafter or whether the petitioner failed to deposit the said amount, is a matter for Trial Court to consider. Moreover, no material is placed before this Court for non deposit of costs by the petitioner before the trial Court.
For the reasons recorded above the petition stands dismissed.
Sd/-
JUDGE NG* CT:bms