Karnataka High Court
G. Shivamurthy @ Shivamurtheppa vs Thippappa on 6 January, 2021
Author: S R.Krishna Bysrkkj
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.3809 OF 2016 (GM-CPC)
BETWEEN:
G. SHIVAMURTHY @ SHIVAMURTHEPPA
S/O. ESHWARAPPA,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURIST,
R/O. KENCHIKOPPA VILLAGE - 577 223.
HONNALI TALUK,DAVANAGERE DISTRICT.
...PETITIONER
(BY SRI.S.V.PRAKASH, ADVOCATE)
AND:
THIPPAPPA
S/O. HARNAHALLI BADAGI SIDDAPPA,
AGED ABOUT 80 YEARS,
AGRICULTURIST, R/O. BEHIND GANGA SAW MILL,
HIREMATA, HONNALI TALUK,
DAVANAGERE DISTRICT.
REP. BY HIS GPA HOLDER,
T. MANJAPPA,S/O. THIPPAPPA,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURIST,
R/O. KENCHIKOPPA VILLAGE,
HONNALI TALUK,DAVANAGERE DISTRICT.
...RESPONDENT
(RESPONDENT-SERVED - UNREPRESENTED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED: 14.01.2016 PASSED BY THE COURT OF ADDITIONAL
CIVIL JUDGE AND JMFC, HONNALI ON I.A.NO. 3 IN O.S.NO.
215/2015 VIDE ANNEXURE-F AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
2
ORDER
This petition by the defendant in O.S.No.215/2015 is
directed against the impugned order dated 14.01.2016,
whereby the trial Court rejected I.A.Nos.2 and 3 filed by the
petitioner under Order IX Rule 7 CPC.
2. Heard learned counsel for the petitioner. Though
the respondent was served, he has remained
unrepresented and has not chosen to contest this petition.
3. A perusal of the material on record indicates that
in the aforesaid suit for declaration, mandatory injunction
and permanent injunction filed by the respondent-plaintiff
against the petitioner-defendant in respect of the suit
schedule immovable property, the petitioner was placed
exparte in the first instance. On 16.11.2015, the petitioner
filed the instant applications I.A.Nos.2 and 3 along with the
written statement seeking setting aside of the order placing
him exparte and for permission to contest the suit on
merits. The trial Court proceeded to reject the said
application solely on the ground that the suit had already
been posted for judgment and in the light of the decision of
the Hon'ble Division Bench of this Court in the case of
Rabiya Bi Kassim M. Vs. The Country Wide Consumer
Financial Service Ltd. reported in ILR 2004 KAR 2215,
the application was liable to be dismissed.
4. Learned counsel for the petitioner submits that
though the matter was posted for judgment on 18.11.2015,
the judgment was not pronounced by the trial Court on that
day. Further, placing reliance upon the decision of the
Apex Court in the case of K.K. Velusami Vs. N.
Palaanisami reported in (2011) 11 SCC 275, it was
contended that though the matter was set down for
judgment, it is open for the trial Court to invoke its inherent
powers under Section 151 of CPC and permit the petitioner
to contest the suit by filing his written statement after
setting aside the exparte order.
5. As rightly contended by the learned counsel for
the petitioner, in view of the decision of the Apex Court in
K.K. Velusamy's case (supra), I am of the considered
opinion that the trial Court committed an error in summarily
dismissing the applications I.A.Nos.2 and 3, which has
occasioned failure of justice warranting interference by this
Court in exercise of its supervisory jurisdiction under Article
227 of the Constitution of India.
6. In the result, I pass the following:
ORDER
i. The petition is allowed.
ii. The impugned order dated 14.01.2016 passed in
O.S.No.215/2015 by the Additional Civil Judge and
JMFC, Honnali is hereby set aside.
iii. Consequently, I.A.Nos.2 and 3 filed in
O.S.No.215/2015 are hereby allowed.
iv. Petitioner is permitted to file his written statement
before the trial Court on or before the next date of
hearing.
v. Having regard to the fact that the suit is of the year
2015, the trial Court is directed to dispose of the suit
as expeditiously as possible.
Sd/-
JUDGE
Bmc
