Nagaraj Patil N vs Smt N M Roopa
2021 Latest Caselaw 524 Kant

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF JANUARY 2021

                          BEFORE

         THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

                    C.R.P. NO.365/2016
BETWEEN :

NAGARAJ PATIL. N
S/O. LATE NAGAN GOUDARU
AGED ABOUT 60 YEARS
NO.3703/3A, 6TH CROSS, 13TH MAIN
KUVEMPUNAGAR, MCC B-BLOCK
DAVANAGERE-577 001                         ... PETITIONER

(BY SRI. S.ANIL KUMAR, ADVCOATE)

AND :

SMT. N.M.ROOPA
W/O. N.R.MANJUNATHA RAO
AGED ABOUT 46 YEARS
R/O. #3577, GODAVARI
5TH MAIN, MCC-B BLOCK
DAVANAGERE-577 001                       ... RESPONDENT

(BY SRI. REUBEN JACOB, ADVOCATE)

     THIS CRP IS FILED UNDER SECTION 115 OF CODE OF
CIVIL PROCEDURE, AGAINST THE ORDER DATED 16.04.2016
PASSED IN MISC.NO.24/2011 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE,
DISMISSING THE MISC. PETITION FILED UNDER ORDER 9 RULE
4 R/W SECTION 151 OF CPC.
                                    2




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


                             ORDER

The petitioner, who is the appellant in R.A.No.62/2010

on the file of the II Additional District and Sessions Judge,

Davanagere ('the First Appellate Court' for brevity), is before

this Court calling in question the order dated 16.04.2016 in

Misc.No.24/2011 on the file of the First Appellate Court.

2. It is submitted in unison that the respondent's

suit for declaration and permanent injunction in

O.S.No.254/2007 on the file of the I Additional Senior Civil

Judge, Davanagere is decreed by the judgment and decree

dated 18.03.2010, and the petitioner being aggrieved by this

judgment and decree has filed the first appeal in

R.A.No.62/2010. The first appellate Court has dismissed the

appeal for default on 26.09.2011, and subsequent application

under Order IX Rule 4 of CPC, which is registered as a

miscellaneous case, is rejected by the impugned order.

3. In the course of the impugned order, the appellate

Court has observed that there was repeated absence on

behalf of the petitioner in the appeal proceedings despite

frequent opportunities. The appellate Court has also

observed that no reason is offered as to why the learned

counsel for the petitioner could not appear in the appeal

proceedings despite repeated opportunities. As such, the

petition cannot be allowed.

4. The learned counsel for the petitioner submits

that the counsel's failure to appear before the Court should

not ordinarily be a reason to refuse a decision on merits. The

petitioner is bonafide in making the application and showing

cause for a decision on merits of the appeal. If an

opportunity is granted to the petitioner, he would ensure that

his learned counsel on record would go on with the matter

without seeking adjournment. The learned counsel for the

respondent on the other hand submits that if an appeal is

dismissed for default, the appropriate remedy would be to file

an application under Order XLI Rule 19 of CPC, and not an

application under Order IX Rule 4 of CPC. This would be

significant because if an application under Order XXII Rule

19 of CPC is rejected, the remedy would be an appeal under

Order XLIII Rule 1 of CPC.

5. However, the learned counsel accedes that if

wrong provision is invoked, the same cannot curtail

appropriate exercise of jurisdiction and that the procedural

law being only a hand maiden cannot derail adjudication on

merits. This Court, considering the circumstances of the

case, especially that the question of declaration of title to

immovable property and grant of permanent injunction is the

lis and the dismissal of the appeal is because of the learned

counsel's absence before the appellate Court, is of the view

that the interest of justice command that the petitioner's

appeal in R.A.No.62/2010 should be decided on merits.

Therefore, the following:

ORDER

a) The impugned order dated 16.04.2016 in Misc.No.24/2011 on the file of the II Additional District and Sessions Judge, Davangere is set aside, and the appeal in R.A.No.62/2010 is restored for adjudication on merits;

b) The parties to the proceedings shall appear before the appellate Court without further notice on 04.02.2021;

c) The petitioner shall ensure that a cost of Rs.10,000/- is paid to the respondent on the first date of appearance before the appellate Court; and

d) The appellate Court shall take all measures for expedited decision on merits, and in any event the appellate Court shall decide on the

merits of the appeal within a period of five months from the date of the first appearance of the parties.

SD/-

JUDGE

RB