Sri Venkateshappa vs Sri Seetharamachari
2022 Latest Caselaw 2873 Kant

                                      W.P. NO.6572 OF 2017
                                 1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

       WRIT PETITION NO.6572 OF 2017 (GM-CPC)

BETWEEN:

SRI VENKATESHAPPA
S/O LATE YELLAPPA
DEAD BY LR'S

1(A)   SMT. SUSHELAMMA
       D/O LATE VENKATESHAPPA
       AGED ABOUT 45 YEARS

1(B)   SRI.NAGARAJ
       S/O LATE VENKATESHAPPA
       AGED ABOUT 43 YEARS

1(C)   SRI. RAMESH
       DEAD BY HIS LR
       MASTER YESHWANTH
       AGED ABOUT 12 YEARS
       SINCE MINOR BY
       SRI. CHANDRAPPA THE LR 1(G)

1(D) SRI. LOKESH
     S/O LATE VENKATESHAPPA
     AGED ABOUT 41 YEARS

1(E)   SRI. YELLAPPA
       S/O LATE VENKATESHAPPA
       AGED ABOUT 39 YEARS
1(F)   SRI. CHANDRAPPA
       S/O LATE VENKATESHAPPA
       AGED ABOUT 37 YEARS

1(G) SRI. LAKSHMANNA
     S/O LATE VENKATESHAPPA
     AGED ABOUT 35 YEARS
                                            W.P. NO.6572 OF 2017
                                     2



LR'S 1(A) TO 1(G) ARE R/AT
KOMMANAHALLI VILLAGE
THORALAKKIR POST
TEKAL HOBLI, MALURU TALUK
KOLAR DISTRICT-563137
                                      ...PETITIONERS
(BY SRI. RAMESH KUMAR.R.V, ADVOCATE-VC)

AND:

1. SRI. SEETHARAMACHARI
   S/O LATE MAILGACHARI
   AGED ABOUT 70 YEARS
2. SRI. RUDRACHARI
   S/O LATE MAILGACHARI
   AGED ABOUT 63 YEARS

  BOTH ARE RESIDING AT
  KOMMANAHALLI VILLAGE
  THORALAKKI POST, TEKAL HOBLI
  MALUR TALUK - 563130
                                            ... RESPONDENTS
(BY SRI. VEERANNA G. TIGADI, ADVOCATE FOR R1-VC;
    R2-SERVED)

       THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 27.02.2016
PASSED IN MISCELLANEOUS APPEAL NO.08/2015, BY HON'BLE II
ADDITIONAL    DISTRICT   AND    SESSIONS   JUDGE   AT   KOLAR,
REFUSING    TO   SET   ASIDE   THE   IMPUGNED   ORDER   DATED
30.10.2012 PASSED IN MISCELLANEOUS NO.24/2012 BY THE
HON'BLE SENIOR CIVIL JUDGE, MALUR, RESULTING IN REFUSING
TO RECALL OF THE ORDER OF DISMISSAL OF THE REGULAR
APPEAL R.A.NO.50/2011 FOR DEFAULT AND TO RESTORE THE
R.A.NO.50/2011 ON TO THE FILE OF THE HON'BLE SENIOR CIVIL
JUDGE, MALUR FOR DISPOSAL IN ACCORDANCE WITH LAW ON THE
MERITS OF THE MATTER AND ETC.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
                                               W.P. NO.6572 OF 2017
                                     3



                             ORDER

1. The above petition is filed seeking for the following

reliefs:

i) Issue a WRIT of CERTIORARI to quash the impugned order dated 27.02.2016 passed in Miscellaneous Appeal No.08/2015, by the Hon'ble II Additional District and Sessions Judge at Kolar, refusing to set aside the impugned order dated 30.10.2012 passed in Miscellaneous No.24/2012 by the Hon'ble Senior Civil Judge, Malur, resulting in refusing to recall of the order of dismissal of the Regular Appeal No.50/2011 for default and to restore the ra. No.50/2011 on the file of the Hon'ble Senior Civil Judge, Malur for disposal in accordance with law on the merits of the matter.

ii) Grant such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case.

2. R.A No.50/2011 had been filed challenging the

Judgment and decree passed by the Prl. Civil Judge

(Jr.Dn), Malur in O.S. No.26/1999. The said R.A.

No.50/2011 came to be dismissed on 28.05.2012 for

default. Aggrieved by the same, Misc. No.24/2012

was filed seeking for restoration of said R.A.

No.50/2011 contending that on the fateful date, the

counsel for the petitioner could not be present and

though adjournment was sought for, the same came

to be refused by the trial Court. Misc. petition also W.P. NO.6572 OF 2017

came to be dismissed on the ground that the Misc.

Petition is not supported by an affidavit of an

advocate who had not appeared in the matter and as

such, the trial Court held the petition is lacking

bonafides. It is aggrieved by the same, the present

petition has been filed.

3. Sri.Ramesh Kumar, learned counsel for the petitioner

would submit that on the date of dismissal i.e.

28.05.2012, it is not that none had appeared for the

petitioner, a junior lawyer had appeared and

requested time for arguments. On account of non-

availability of arguing counsel, adjournment was

rejected and the appeal was dismissed for default.

He therefore submits that the same has caused

severe injustice to the petitioner and as such, Misc.

petition was filed which ought to have been allowed

and not to have been rejected only on the ground

that arguing counsel is not present to address

arguments.

W.P. NO.6572 OF 2017

4. Sri.Veeranna G.Tagadi, learned counsel for the

respondent No.1 submits that the order under

challenge before this court is of the year 2011 and

after considerable lapse of time, this Court ought not

to interfere in the matter and consider the

application for restoration of said R.A. He also

submits that there is an alternative remedy in terms

of under Order 43 Rule 1(t) of CPC. He therefore

submits that the petition ought to be rejected.

5. Heard Sri.Ramesh Kumar.R.V, learned counsel for

the petitioners and Sri.Veeranna G.Tigadi, learned

counsel for respondent No.1 Perused documents.

6. The present writ petition has been filed in the year

2017. At this stage, I am of the considered opinion

that the argument of Sri.Tigadi, learned counsel that

there is an alternative and efficacious remedy in

terms of an appeal in terms of Order 43 Rule 1(t) of

CPC, will not come in the way of this Court W.P. NO.6572 OF 2017

considering the matter, when the present writ

petition has been pending for the last five years.

7. As regards merits of the matter, though there is

serious opposition by Sri.Tigadi, a perusal of

paragraph 10 of the impugned order indicates that

the advocate for respondent No.1 has submitted no

objection to allow Misc. Petition No.24/2012, it is

rather surprising that when the respondent himself

had no objection to allow the petition, the Court has

rejected the said Misc. petition leading up to this

particular matter being pending for last twelve years

now. When the respondent himself had no objection

at that stage, now the objection of the respondent,

in my considered opinion, cannot be countenanced.

In view thereof, I pass the following:

ORDER

i) The writ petition stands allowed.

W.P. NO.6572 OF 2017

ii) The order dated 27.02.2016 passed in Misc.

Appeal No.8/2015 by the II Addl. District and

Sessions Judge, Kolar is hereby quashed;

iii) Misc. No.24/2012 is allowed; consequently,

R.A. No.50/2011 is restored to the file;

iv) The submission of Sri.Ramesh Kumar, learned

counsel for the petitioner that he would not

seek any unnecessary adjournments in R.A.

No.50/2011 and arguments would be advanced

on the very next date is placed on record;

v) Considering that Regular Appeal is of the year

2011, the trial Court is directed to dispose of

the same as expeditiously as possible after

hearing both sides;

vi) Since both the counsels are present, they are

directed to appear before the first Appellate

Court on 7.03.2022 without requirement of any

notice.

Sd/-

JUDGE

ln