Sri Shanthakumar vs Smt Sumangala @
2021 Latest Caselaw 5410 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 03RD DAY OF DECEMBER, 2021

                        BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

       REGULAR FIRST APPEAL No. 639 OF 2017

BETWEEN:

SRI SHANTHAKUMAR,
AGED ABOUT 55 YEARS,
S/O LATE CHAMAIAH,
R/AT NO.4, 1ST CROSS,
NEHRU ROAD, NEW GUDDADAHALLI,
MYSORE ROAD,
BANGALORE-560 026.
                                         ... APPELLANT

(BY SRI HARIPRASAD M.B., ADVOCATE)

AND:

1.     SMT. SUMANGALA @
       MANGALAMMA,
       W/O B. SHIVALINGAIAH,
       AGED ABOUT 56 YEARS,
       R/AT NO.3, G-STREET, 2ND FLOOR,
       1ST MAIN, NEW GUDDADAHALLI,
       MYSORE ROAD,
       BANGALORE-560 026.
                                          RFA No. 639/2017
                            2


2.   SRI SIDDAPPA,
     AGED MAJOR,
     S/O FATHER'S NAME NOT KNOWN,
     R/AT NO.4, 1ST CROSS,
     NEHRU ROAD, NEW GUDDADAHALLI,
     MYSORE ROAD,
     BANGALORE-560 026.
                                  ...RESPONDENTS

(SRI NAVEEN CHANDRA.M., ADVOCATE FOR R-1;
 APPEAL AGAINST R-2 DISMISSED VIDE ORDER DATED
17.11.2021)

     THIS   REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 17.03.2017 PASSED IN O.S.NO.5058/2009 ON THE
FILE OF XLIV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AT BENGALURU CITY (CCH-45), DECREEING THE
SUIT FOR PERMANENT INJUNCTION AND ETC.,

     THIS     REGULAR   FIRST  APPEAL  COMING
ON FOR ORDERS THROUGH VIDEO CONFERENCING /
PHYSICAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:

                         ORDER

Learned counsel for the appellant is physically

present in the Court. Learned counsel for the respondent

No.1 is appearing through video conference.

2. After the learned counsel for the respondent

No.1 reiterated his submission that copies of memorandum RFA No. 639/2017

of appeal and IA have not at all been furnished, despite

several requests made by him, the learned counsel for the

appellant prays for some more time to furnish copies of

memorandum of appeal and IA to the learned counsel for

respondent No.1.

3. A perusal of the previous order sheet would go

to show that the present appeal is of the year 2017 and

since then, the appellant is not evincing any interest in

ensuring service of notice upon the respondent at the

earliest and furnished the respondent No.1 with the copies

of memorandum of appeal and the IA. In that connection,

this Court had passed a detailed order on 17.11.2021 and

giving the reasons in its detailed order, the Court

proceeded to dismiss the appeal as against respondent

No.2. On that day also, the learned counsel for

respondent No.1 had brought to the notice of the Court as

well to the notice of the learned counsel for the appellant

that copies of the memorandum of appeal and IA were not

furnished to him, for which, the learned counsel for the RFA No. 639/2017

appellant had undertaken to furnish the said copies

immediately. Inspite of the same, the said copies are not

furnished by the appellant.

4. In view of the same, on 25.11.2021, this Court

made the following observation:

"Learned counsel for the appellant is not present either physically or through video conferencing.

Learned counsel for the respondent No.1 appearing through video conference reiterates his submission dated 17.11.2021 that the copies of memorandum of appeal, IA and annexures have not been furnished to him, despite the direction issued by this Court to furnish the same.

In view of the fact that the appeal against respondent No.2 has stood dismissed for not taking steps and the learned counsel for the appellant has remained absent, even though the case is taken up and had not even said to have furnished copies of memorandum of appeal and IA to the respondent No.1, as an ultimate chance, a week's time is granted to RFA No. 639/2017

the appellant to do the needful, failing which, the Court may proceed to pass an appropriate order including dismissal of the appeal for non- prosecution".

Inspite of the above, since the appellant has not

even complied the minimum requirement of furnishing the

copies of memorandum of appeal and IA on the other side,

it can be inferred that the appellant is not evincing any

interest in prosecuting the matter and complying the

directions of this Court dated 17.11.2021 and 25.11.2021.

As such, the Appeal stands dismissed for non-prosecution

and non-compliance of the direction of this Court dated

17.11.2021 and 25.11.2021.

Sd/-

JUDGE

mbb