THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL MISCELLANEOUS APPEAL No.465 OF 2022
JUDGMENT: (Per Hon'ble Dr.SA,J)
This appeal, under Order XLIII Rule 1(c) C.P.C., is filed by
the appellants/plaintiffs aggrieved by the order and decree,
dated 12.09.2022, passed in I.A.No.383 of 2021 in O.S.No.4 of
2018 by the learned Principal District Judge, Rajanna Sircilla,
whereby, the subject I.A. filed by the appellants/plaintiffs, under
Order IX Rule 9 read with Section 151 C.P.C., seeking to set
aside the dismissal order, dated 24.11.2021, passed in the
subject Suit and to restore the subject Suit, was dismissed.
2. Heard the learned counsel for the appellants/plaintiffs,
learned counsel for respondent Nos.1 and 7/defendant Nos.1 and
7 and perused the record.
3. Notices sent to respondent Nos.2 to 6 returned with an endorsement 'unclaimed'.
4. Learned counsel for the appellants/plaintiffs would submit that the appellants/plaintiffs are claiming right over the suit 2 Dr.SA,J & NBK,J C.M.A.No.465 of 2022 schedule property as coparceners. Both the parties are trying to compromise the subject matter and in view of the same, chief affidavits of the appellants/plaintiffs were not filed. The appellants/plaintiffs are ready to file their chief affidavits and expedite the trial of the subject Suit and ultimately, prayed to set aside the impugned order.
5. On the other hand, learned counsel for the respondent Nos.1 and 7 would contend that no justifiable reason has been assigned in the affidavit filed in support of the subject I.A. to set aside the dismissal order passed in the subject Suit. There were no compromise talks, as alleged. The Court below had examined the whole issue and passed a reasoned order. There are no merits in the appeal and ultimately, prayed to dismiss the appeal.
6. Admittedly, the subject Suit was filed for partition and separate possession of the suit schedule property. The contention put forth on behalf of the appellants/plaintiffs that there were compromise talks in between the parties cannot be ruled out. It is contended on behalf of the appellants/plaintiffs that they are ready to lead evidence to substantiate their claim 3 Dr.SA,J & NBK,J C.M.A.No.465 of 2022 and expedite the trial of the subject Suit. As seen from the material placed on record, the appellants/plaintiffs did not pursue the subject Suit diligently. There are laches on the part of the appellants/plaintiffs in not filing the chief affidavits. They sought time on several occasions. Such practice is not appreciable. However, in view of the nature of the Suit, the subject lis between the parties to the litigation need to be determined on merits. Therefore, to meet the ends of justice, an opportunity is required to be given to the appellants/plaintiffs to complete their evidence and get adjudication of the subject Suit on merits. In view of these circumstances, the impugned order and decree are liable to be set aside, subject to payment of costs.
7. Accordingly, the appeal is allowed and the impugned order and decree, dated 12.09.2022, passed in I.A.No.383 of 2021 in O.S.No.4 of 2018 by the learned Principal District Judge, Rajanna Sircilla, are set aside, subject to condition of the appellants/plaintiffs paying costs of Rs.25,000/- (Rupees twenty five thousand only) to the respondent Nos.1 and 7/defendant Nos.1 and 7 within a period of two (2) weeks from today.
4 Dr.SA,J & NBK,J
C.M.A.No.465 of 2022
Consequently, the subject I.A. stands allowed and the subject Suit is restored to its file. The appellants/plaintiffs shall complete their evidence within three (3) months from the date of receipt of a copy of this order.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed. There shall be no order as to costs.
_______________________ Dr. SHAMEEM AKTHER, J _______________________ NAGESH BHEEMAPAKA, J Date: 05.12.2022 MD