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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.NO.8381 OF 2014(CPC)
BETWEEN
M /S ABHANI DISTRIBUTORS
PHARMACEUTICAL DISTRIBUTORS
1, PORTUGUESE CHURCH STREET
2ND FLOOR, KOLKATTA 700 001
REP BY ITS PRO: SRI. VINAYKUMAR
ABHANI
...APPELLANT
(BY SMT. SUCHETA MAJUMDAR, ADVOCATE)
AND
M/S JOHNSON & SMITH COMPANY
ADM. OFFICE AT NO.14/2
N S IYENGAR STREET
SHESHADRIPURAM
BANGALORE 20
REP BY ITS PARTNER
SRI RAMESH KUMAR
...RESPONDENT
(BY SRI. D. PRABHAKAR, ADVOCATE)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF CPC,
AGIANST THE ORDER DATED: 10.11.2014 PASSED IN MISC.NO.
496/2012 ON THE FILE OF 30TH ADDITIONAL CITY CIVIL JUDGE,
BANGALORE, DISMISSING THE PETITION FILED UNDER ORDER 9,
RULE 13 OF CPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is directed against the impugned order dated 10.11.2014 passed in Misc.No.496/2012 on the file of the XXX Additional City Civil and Sessions Judge, Bengaluru, whereby the trial Court dismissed the petition filed by the petitioner under Order IX Rule 13 of CPC.
2. Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
3. The material on record indicates that it is not in dispute that the respondent was the plaintiff in O.S.No.7644/2008 filed by it against the petitioner-defendant for recovery in a sum of Rs.3,89,963-67 against the appellant and for other reliefs. The appellant having been placed exparte in the said suit, it did not contest the same and consequently, by judgment and decree dated 10.02.2012, the trial court decreed the said suit in O.S.No.7644/2008 in favour of the respondent herein against the appellant herein. It is the 3 grievance of the appellant that the appellant was not aware of the institution of the suit since the summons had not been duly served upon the appellant and the appellant came to know about the judgment and decree only subsequent to same having been passed and consequently, the delay in filing Miscellaneous Petition which was filed only on 11.07.2012 was due to bonafide, unavoidable reasons and sufficient cause. The appellant had a good case on merits and if the exparte judgment and decree passed against the appellant was not set aside and an opportunity to contest the suit was not granted in favour of the appellant, it would be put to irreparable injury and hardship.
4. Respondent herein entered appearance in Miscellaneous Petition No.496/2012 and after trial during which both parties adduced both oral and documentary evidence, the trial Court dismissed the petition inter alia holding that the appellant had not made out sufficient cause either to condone the delay in filing the petition or to establish as to why the appellant could not contest the suit on merits. 4
5. After having heard learned counsel for the parties and upon perusal of the material on record, I am of the considered opinion that the trial Court has committed an error in adopting a hyper-technical approach in rejecting the petition filed by the appellant resulting in miscarriage of justice.
6. Under these circumstances, without expressing any opinion on the merits/demerits of the rival contentions, I deem it fit and proper to set aside the impugned order and direct the trial Court to dispose of suit accordance with law after giving equal opportunity to both sides.
7. In the result, I pass the following:
ORDER
i) Appeal is allowed.
ii) Impugned order dated 10.11.2014 passed in Misc.No.496/2012 on the file of the XXX Additional City Civil and Sessions Judge, Bengaluru is set aside and Misc.No.496/2012 hereby stands allowed. 5
iii) O.S.No.7644/2008 is restored to file of the trial Court.
iv) Both the parties undertake to appear before the trial Court on 01.02.2021 without further notice from the Court.
v) Appellant is directed to file its written
statement along with documents on
01.02.2021 without seeking further
adjournment in the matter.
vi) It is made clear that in the event, the
appellant does not file the written statement on 01.02.2021 as stated supra, the trial Court is entitled to proceed with the suit on merits and no further adjournment will be granted to the appellant.
vii) Having regard to the fact that the suit is of the year 2008, the trial Court is directed to dispose of the same as expeditiously as 6 possible and preferably within a period of six months from 01.02.2021.
viii) Appellant is directed to pay a sum of Rs.5,000/- towards costs to the respondent before the trial Court on 01.02.2021.
Sd/-
JUDGE Mds.