Sri Manjunath @ Manju Naik vs Sri S Shivaprakash
2021 Latest Caselaw 6962 Kant

                                     M.F.A.No.6030/2021

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF DECEMBER 2021

                       BEFORE

         THE HON'BLE MRS JUSTICE K.S.MUDAGAL

 MISCELLANEOUS FIRST APPEAL NO.6030/2021 (CPC)
BETWEEN:
1.     SRI MANJUNATH @ MANJU NAIK
       S/O. SHANKAR SINGH
       AGED ABOUT 44 YEARS
       R/AT NO.549/21
       SRI MARIKAMBA KRUPA
       SARASWATHINAGAR
       DAVANAGERE- 577 002
2.     SRI SHANKAR SINGH
       S/O. OBALA NAIK
       AGED ABOUT 70 YEARS
       R/AT NO.549/21
       SRI MARIKAMBA KRUPA
       SARASWATHINAGAR
       DAVANAGERE- 577 002                ...APPELLANTS
(BY SRI HARESSH BHANDARY.T. ADVOCATE)
AND:
SRI S.SHIVAPRAKASH
S/O. NARAYANA RAJU
AGED ABOUT 57 YEARS
R/AT SRI SAI NIVAS
NO.36, 3RD MAIN ROAD
NEW BEL ROAD, RMV 2ND STAGE
BENGALURU- 560 094                       ...RESPONDENT
(BY SRI RAVI PRAKASH.V., ADVOCATE)

      THIS MFA IS FILED UNDER ORDER XLIII RULE 1(d) OF
CPC PRAYING TO SET ASIDE THE ORDER DATED 01.09.2021
PASSED BY XII ADDITIONAL CITY CIVIL JUDGE, BENGALURU
IN MISC.NO.302/2020.
                                           M.F.A.No.6030/2021

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     THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT THROUGH VIDEO CONFERENCING DELIVERED THE
FOLLOWING:

                     JUDGMENT

Heard.

2. Aggrieved by the rejection of their application

for condonation of delay, consequently their petition

under Order IX Rule 13 of CPC for setting aside the

exparte decree, the defendants in O.S.No.1609/2016 on

the file of XII Additional City Civil & Sessions Judge,

Bengalure (CCH.No.27) have preferred the above appeal.

3. The respondent filed O.S.No.1609/2016

against the appellants for recovery of Rs.19,40,000/- with

interest. The appellants appeared in the said suit and filed

their written statement. However, thereafter they did not

participate in the proceedings.

4. The trial Court on recording the respondent's

evidence on 23.04.2019, decreed the said suit. Thereafter

the appellants filed Misc.No.302/2020 against the

respondent for setting aside the exparte decree passed

against them in O.S.No.1609/2016. Since there was 302

days delay in filing the petition, the appellants filed M.F.A.No.6030/2021

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I.A.No.1 for condonation of delay. The ground urged to

condone the delay and for their failure to appear before

the trial Court in the proceedings in O.S.No.1609/2016

were one and the same.

5. Appellants contended that they are residents

of Davanagere and they entrusted the case to the

advocate at Bengaluru through their local advocate

Sri B.M.Shivanandaiah. They further contended that their

local advocate Sri B.M.Shivanandaiah unfortunately

passed away, therefore there was no communication from

the advocate representing them in O.S.No.1609/2016.

They claimed that the delay in filing the petition as well as

their non-participation in the proceeding in

O.S.No.1609/2016 in the later stage was due to said

bonafide reason.

6. On service of notice to the respondent, his

Counsel filed memo in Misc.No.302/2020 conceding to

allow the petition on costs. Despite that the trial Court

rejected the application for condonation of delay and

consequently the main petition on the ground that the

appellants have not led evidence on their application for M.F.A.No.6030/2021

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condonation of delay. The trial Court further held that

since the appellants had filed written statement, Order IX

Rule 13 of CPC does not apply.

7. Since the respondent filed memo conceding

the reasons assigned to explain the delay, there was no

reason for the trial Court to disbelieve the contention of

the appellants that their local advocate died and therefore

they could not get any communication from the advocate

from Bengaluru.

8. Since the appellants appeared and filed their

written statement in the suit, technically the trial Court

may be right in saying that Order IX Rule 13 of CPC does

not apply. However, though the written statement was

filed, the appellants did not participate in the

proceedings. Therefore in a wider meaning virtually the

decree passed was an exparte decree. Since the

respondent conceded for allowing the petition to set aside

the exparte order, there is no reason to disbelieve the

grounds urged by them to explain their lapses. In the

peculiar facts and circumstances of the present case,

interest of justice requires that the appellants shall be M.F.A.No.6030/2021

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given fair chance to contest the suit. Therefore the appeal

is allowed.

The impugned order is hereby set aside. The

application of the appellants in Misc.No.302/2020 for

condonation of delay is allowed. Misc.No.302/2020 is

allowed.

The exparte decree dated 23.04.2019 in

O.S.No.1609/2016 passed by XII Additional City Civil

Judge, Bengaluru is hereby set aside.

Since the original suit is more than 5 years old, the

parties shall appear before the trial Court on 17.01.2022

without any further notice. On said appearance, the trial

Court shall give opportunity to both parties and dispose of

the suit within six months. Appellants shall lose their right

of contest if they fail to co-operate in the trial.

In view of disposal of main matter, pending I.As.

stood disposed of

Sd/-

JUDGE

KSR