Sri B R Venkatesh Murthy vs Smt. Usha Rani
2021 Latest Caselaw 5535 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF DECEMBER, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

       CIVIL REVISION PETITION NO.245 OF 2021

BETWEEN:

SRI. B.R. VENKATESH MURTHY
S/O RAMESH
AGED 53 YEARS
NO.3, 8TH MAIN, 8TH CROSS,
SHIVANAGAR, RAJAJINAGAR
BENGALURU-560010.
                                              ...PETITIONER
(BY SRI. RAMESH P. KULKARNI, ADVOCATE)

AND:

1.     SMT. USHA RANI
       D/O LATE SRI RADHAKRISHNA MUDALIAR
       AGED 49 YEARS,
       NO.3, THEOBALD ROaD,
       NAZARABAD,
       MYSORE-570010

2.     VANAJANA SEVA TRUST
       NO.14356-1436-18
       5TH MAIN, 2ND CROSS, GAYATHRINAGAR
       2ND STAGE, RAJAJINAGAR
       BENGALURU-560010
                                            ...RESPONDENTS
(BY SRI. O.SHIVARAMA BHAT, ADVOCATE)

     THIS PETITION IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 09.02.2021 PASSED IN
MISC.NO.278/2015 ON THE FILE OF THE XVIII ADDITIONAL
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CITY CIVIL JUDGE, BENGALURU, ALLOWING THE PETITION
FILED UNDER ORDER 9 RULE 13 OF CPC.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

This Revision Petition under Section 115 of the Code

of Civil Procedure, 1908 (hereinafter referred to as 'CPC'

for short) is filed challenging an order dated 09.02.2021

passed by XVIII Addl. City Civil Judge, Bengaluru City

(henceforth referred to as 'Trial Court') in Misc.

No.278/2015, by which the Trial Court allowed an

application under Order IX Rule 13 of CPC after condoning

the delay.

2. The respondents herein who were the

defendants No.1 and 2 in O.S. No.5039/2011 filed Misc.

No.278/2015 under Order IX Rule 13 of CPC to set aside

the ex parte Judgment and Decree of specific performance

in O.S. No.5039/2011. Along with the petition, they also

filed an application under Section 5 of the Limitation Act

for condonation of 5 days delay in filing the petition. They

contended that they had entered appearance through an

Advocate Mr. N.G. Phadke on 13.12.2012. They claimed

that they were under the impression that their Advocate

would call them for further instructions. However, they

later came to know that they were placed ex parte.

Hence, they obtained No Objection from him and engaged

another Advocate named Mr.H.R.Showri, who also did not

inform them about the need to file the written statement.

They claimed that the respondent No.1 suffered from

jaundice and other illness and therefore, she could not

defend the case effectively.

3. In so far as the cause shown for the delay in

filing the petition, it was contended that the application for

the certified copy was filed on 12.03.2015 and that the

certified copy was received on 26.03.2015 and she

contacted her Advocate at Bengaluru to file a Misc. Petition

on 24.03.2015 which ultimately came to be filed on

24.04.2015. It was therefore contended that the delay

was neither deliberate nor intentional.

4. The Misc. Petition was contested by the

petitioner herein, who claimed that respondent No.1 was

place ex parte on 20.10.2011, while the respondent No.2

appeared on 14.12.2011 and despite granting sufficient

time, the written statement was not filed and therefore,

the Trial Court passed a judgment of specific performance.

It was further contended that the cause for not filing the

written statement was not sufficiently explained.

5. Based on this, the case was set down for

evidence. The respondent No.1 was examined as PW1,

who marked documents as Exs.P1 and P2, while petitioner

was examined as RW1 who marked the order sheet in O.S.

No.5039/2011 as Ex.R1.

6. The Trial Court after considering the evidence

on record held that the respondents were able to establish

sufficient cause for not appearing before the Court on

12.09.2011 as the respondent No.1 was suffering from

jaundice and was treated at Mysuru by Dr. Subhash.

Hence, the Trial Court condoned the delay and also

allowed the petition filed under Order IX Rule 13 of CPC.

7. Being aggrieved by the aforesaid order, the

present Revision petition is filed.

8. The learned counsel appearing for the

petitioner submitted that the Trial Court was carried away

by the fact that the respondent No.1 was suffering from

jaundice without actually insisting upon the proof of the

said claim. He contended that the cause shown for setting

aside the ex parte judgment is neither sufficient nor

probable. He also submitted that the respondents ought to

have initiated action against their Advocate if the

allegation against them was true and the very fact that

they have not taken any action makes it clear that the

reasons assigned were all concocted for the purpose of the

case.

9. I have considered the submissions made by

learned counsel for the parties. I have also perused the

order of the Trial Court.

10. The suit in O.S. No.5039/2011 was filed for

specific performance and therefore, affected the property

rights of the respondents. It is no doubt true that a

person who is not diligent in safeguarding his rights

particularly when he is notified about a case filed before a

Court of law that could possibly affect his rights, cannot

claim that he was not given reasonable opportunity to

defend himself. In the case on hand, the respondents had

engaged an Advocate who had entered appearance, but

did not file the written statement. The contention of the

respondents that their Advocate did not take steps to file

the written statement is probable. The respondents had

taken care to engage another Advocate who probably did

not take the required steps to file the written statement.

Consequently, the respondents had no say as against the

case putforth by the petitioner. The suit was thereafter

decreed ex parte. This Court cannot turn a blind eye to a

party being penalised for the lapse on the part of the

Advocate in contesting the suit earnestly. If the

respondents were not co-operating with the Advocate , the

Advocate owed a duty not only to the Court but also to the

party and he must have taken proper steps to retire from

the case after intimating the party. In the present case,

the same is not done and the net effect is that the interest

of the respondent is compromised. As rightly held by the

Trial Court, even in the garden of Eden, God did not punish

Adam and Eve without giving them an opportunity to show

cause as to why they had eaten the forbidden fruit. We,

as humans are bound to go far beyond to ensure that

there is fullest opportunity to the parties in proceedings

before a Court of Law. In that view of the matter, the Trial

Court is justified in allowing the petition filed under Order

IX Rule 13 of CPC. There is no merit in this petition and

the same is dismissed.

Sd/-

JUDGE

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