Karnataka High Court
Smt Hemavathi vs M/S Megacity(Bengaluru) Developers ... on 12 July, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.460/2019 (CPC)
BETWEEN:
1. SMT. HEMAVATHI
W/O LATE BASAPPA
AGE:43 YEARS,
2. SRI SUNIL KUMAR
S/O LATE BASAPPA
AGE 24 YEARS,
3. SMT. SHASHIKALA
D/O LATE BASAPPA
AGE:22 YEARS,
4. SMT GIRIJAMBA
D/O LATE BASAPPA
AGE:46 YEARS,
5. SMT NEELA
D/O LATE BASAPPA
AGE:18 YEARS,
APPELLANTS 1 TO 5 ARE
LEGAL HERIS OF SRI. BASAPPA
6. SRI CHANNIGAPPA
S/O LATE PUTTABASAPPA
@ PUTTAPPA
AGE:46 YEARS,
APPELLANT 1 TO 5 &6 ARE
REP BY THEIR GPA HOLDER
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SRI H P LAKSHMANA
S/O SRI PUTTABASAPPA @ PUTTAPPA
AGE:41 YEARS,
7. SRI LAKSHMANA
S/O LATE PUTTABASAPPA
AGE:41 YEARS,
ALL ARE R/AT HAMPAPURA VILLAGE
KENGERI HOBLI
BENGALURU URBAN DISTRICT
BENGALURU - 562 109.
... APPELLANTS
(BY SRI. RAVINDRA PRASAD B, ADVOCATE)
AND:
1. M/S MEGACITY(BENGALURU)
DEVELOPERS AND BUILDERS LTD.
O/AT NO.1 CHANDRA LOK
5TH CORSS, GANDHINAGAR
BENGALURU - 560 009
REP BY ITS EXECUTIVE DIRECTOR
SRI C P GANGADHARESHWARA
S/O SRI PUTTAMADEGOWDA
AGE:46 YEARS,
2. SRI C P GANGADHARESHWARA
S/O PUTTAMADEGOWDA
AGE:46 YEARS
R/AT CHEKKERE VILLAGE
MALUR HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT - 562 159.
... RESPONDENTS
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(c) OF CPC, AGAINST THE
ORDER DATED 30.11.2018, PASSED IN MIS.NO.42/2012
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ON THE FILE OF THE IX ADDITIONAL DISTRICT &
SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, WHERE IN, THE PETITION FILED UNDER
ORDER 9 RULE 4 AND 9 OF CPC IS ALLOWED ON COST OF
RS.3,000/- TO BE PAID TO THE RESPONDENTS BEFORE
THE TRIAL COURT ON THEIR FIRST APPEARANCE.
CONSEQUENTLY, THE DISMISSAL ORDER PASSED IN
OS.NO.937/2010 DATED 10.08.2011 IS SET ASIDE.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The defendants in a suit for specific performance are aggrieved by the restoration of such suit for reconsideration under Order IX Rule 9 of the Code of Civil Procedure, 1908 [for short, 'the CPC']. The suit against the appellants is in O.S. No.937/2010 on the file of the I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, and the impugned order of restoration dated 30.11.2018 is in Misc. No.42/2012 on the file of the IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru [for short, 'the civil Court].
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2. The undisputed facts are that the appellants have entered into two different agreements for two different properties with the respondents who have commenced the suits in O.S. Nos.937/2010 and 938/2010 for specific performance. The appellants have entered appearance and filed their pleadings. The suit in O.S. No.937/2010, which was initially pending consideration before the Fast Track Court-IV, Bengaluru Rural District, is withdrawn on 28.05.2011 to be listed before the civil Court. The suit thereafter is dismissed by the civil Court on 10.08.2011.
3. It is also undisputed that the other suit in O.S. No.938/2010, again for specific performance, between the parties was also pending before the civil Court as of 10.08.2011. The learned counsel for the appellant submits that this suit even today is pending, and he also submits that though the impugned order is -5- dated 30.11.2018, the suit in O.S. No.937/2010 is not listed on the civil Court's board.
4. The civil Court has restored the suit in O.S. No.937/2010 primarily on the ground that even if there is some negligence on the part of the learned counsel for the respondents, the respondents must not be penalized. The civil Court has also considered the nature of the dispute and restored the suit for decision on merits condoning the delay in filing the application for restoration.
5. Sri. B. Ravindra Prasad, the learned counsel for the appellant, submits that the application for condonation of delay was not filed initially but is filed after completion of the evidence. The civil Court, nevertheless, has taken up this application for consideration along with the main petition and has condoned the delay. The civil Court should have first considered the question of delay and then taken up the -6- petition for disposal. He also submits that the respondents' counsel on record in O.S. No.937/2010 had appeared before the civil Court after transfer and before the dismissal and therefore the respondents could not deny notice or knowledge of the listing of the suit before the transferee Court. The civil Court has overlooked material circumstances and therefore this Court must intervene.
6. The civil Court has opined that the respondents' learned counsel could not feign ignorance of the proceedings pending before the transferee Court after elaborate discussion on the procedure to be followed whenever a suit is withdrawn from the Court and transferred to another Court. But, the civil Court has also opined that negligence on the part of the learned counsel need not extend to the party. This Court is not persuaded to opine that there is any irregularity in the civil Court's decision to restore the -7- suit, and this would be so even in the light of the first ground viz., the petition was filed without an application for condonation of delay at the first instance.
7. If the civil Court has opined that the learned counsel for the respondents was negligent and there is nothing on record to show that the respondents themselves had notice of the transfer or dismissal of the suit, this Court would not interfere only because an application, which is filed subsequently, is favoured. However, it is rather surprising that though the impugned order is almost three and half years back, the suit is not yet restored to the civil Court's board and taken up for consideration. This Court must issue certain directions. Therefore, the following:
ORDER [a] The appeal stands disposed of holding that the impugned order dated 30.11.2018 in Misc. No.42/2012 on the file of the IX Additional -8- District and Sessions Judge, Bengaluru Rural District, Bengaluru does not call for interference.
[b] The Registrar [Judicial] is directed to send a copy of this order and obtain a report from the concerned Court to know the reason for the suit not being restored to the civil Court's Board for reconsideration as directed in the impugned order, and to ensure that necessary measures are taken for issuance of notice to both the appellants and the respondents immediately upon the suit being listed before the concerned Court for a decision on merits.
[c] The report from the concerned Sheristedar in this regard shall be placed before this Court within a period of six [6] weeks from the day this order is released.
SD/-
JUDGE AN/-