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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.3809 OF 2016 (GM-CPC)
BETWEEN:
G. SHIVAMURTHY @ SHIVAMURTHEPPA
S/O. ESHWARAPPA,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURIST,
R/O. KENCHIKOPPA VILLAGE - 577 223.
HONNALI TALUK,DAVANAGERE DISTRICT.
...PETITIONER
(BY SRI.S.V.PRAKASH, ADVOCATE)
AND:
THIPPAPPA
S/O. HARNAHALLI BADAGI SIDDAPPA,
AGED ABOUT 80 YEARS,
AGRICULTURIST, R/O. BEHIND GANGA SAW MILL,
HIREMATA, HONNALI TALUK,
DAVANAGERE DISTRICT.
REP. BY HIS GPA HOLDER,
T. MANJAPPA,S/O. THIPPAPPA,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURIST,
R/O. KENCHIKOPPA VILLAGE,
HONNALI TALUK,DAVANAGERE DISTRICT.
...RESPONDENT
(RESPONDENT-SERVED - UNREPRESENTED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED: 14.01.2016 PASSED BY THE COURT OF ADDITIONAL
CIVIL JUDGE AND JMFC, HONNALI ON I.A.NO. 3 IN O.S.NO.
215/2015 VIDE ANNEXURE-F AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
This petition by the defendant in O.S.No.215/2015 is directed against the impugned order dated 14.01.2016, whereby the trial Court rejected I.A.Nos.2 and 3 filed by the petitioner under Order IX Rule 7 CPC.
2. Heard learned counsel for the petitioner. Though the respondent was served, he has remained unrepresented and has not chosen to contest this petition.
3. A perusal of the material on record indicates that in the aforesaid suit for declaration, mandatory injunction and permanent injunction filed by the respondent-plaintiff against the petitioner-defendant in respect of the suit schedule immovable property, the petitioner was placed exparte in the first instance. On 16.11.2015, the petitioner filed the instant applications I.A.Nos.2 and 3 along with the written statement seeking setting aside of the order placing him exparte and for permission to contest the suit on merits. The trial Court proceeded to reject the said application solely on the ground that the suit had already been posted for judgment and in the light of the decision of 3 the Hon'ble Division Bench of this Court in the case of Rabiya Bi Kassim M. Vs. The Country Wide Consumer Financial Service Ltd. reported in ILR 2004 KAR 2215, the application was liable to be dismissed.
4. Learned counsel for the petitioner submits that though the matter was posted for judgment on 18.11.2015, the judgment was not pronounced by the trial Court on that day. Further, placing reliance upon the decision of the Apex Court in the case of K.K. Velusami Vs. N. Palaanisami reported in (2011) 11 SCC 275, it was contended that though the matter was set down for judgment, it is open for the trial Court to invoke its inherent powers under Section 151 of CPC and permit the petitioner to contest the suit by filing his written statement after setting aside the exparte order.
5. As rightly contended by the learned counsel for the petitioner, in view of the decision of the Apex Court in K.K. Velusamy's case (supra), I am of the considered opinion that the trial Court committed an error in summarily dismissing the applications I.A.Nos.2 and 3, which has 4 occasioned failure of justice warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
6. In the result, I pass the following:
ORDER i. The petition is allowed.
ii. The impugned order dated 14.01.2016 passed in O.S.No.215/2015 by the Additional Civil Judge and JMFC, Honnali is hereby set aside.
iii. Consequently, I.A.Nos.2 and 3 filed in O.S.No.215/2015 are hereby allowed.
iv. Petitioner is permitted to file his written statement before the trial Court on or before the next date of hearing.
v. Having regard to the fact that the suit is of the year 2015, the trial Court is directed to dispose of the suit as expeditiously as possible.
Sd/-
JUDGE Bmc