Smt Hemavathi vs M/S Megacity(Bengaluru) ...
2022 Latest Caselaw 10666 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 12TH DAY OF JULY, 2022

                          BEFORE

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

     MISCELLANEOUS FIRST APPEAL NO.460/2019 (CPC)

BETWEEN:

1.   SMT. HEMAVATHI
     W/O LATE BASAPPA
     AGE:43 YEARS,

2.   SRI SUNIL KUMAR
     S/O LATE BASAPPA
     AGE 24 YEARS,

3.   SMT. SHASHIKALA
     D/O LATE BASAPPA
     AGE:22 YEARS,

4.   SMT GIRIJAMBA
     D/O LATE BASAPPA
     AGE:46 YEARS,

5.   SMT NEELA
     D/O LATE BASAPPA
     AGE:18 YEARS,

     APPELLANTS 1 TO 5 ARE
     LEGAL HERIS OF SRI. BASAPPA

6.   SRI CHANNIGAPPA
     S/O LATE PUTTABASAPPA
     @ PUTTAPPA
     AGE:46 YEARS,
     APPELLANT 1 TO 5 &6 ARE
     REP BY THEIR GPA HOLDER
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       SRI H P LAKSHMANA
       S/O SRI PUTTABASAPPA @ PUTTAPPA
       AGE:41 YEARS,

7.     SRI LAKSHMANA
       S/O LATE PUTTABASAPPA
       AGE:41 YEARS,

     ALL ARE R/AT HAMPAPURA VILLAGE
     KENGERI HOBLI
     BENGALURU URBAN DISTRICT
     BENGALURU - 562 109.
                                    ... APPELLANTS
(BY SRI. RAVINDRA PRASAD B, ADVOCATE)

AND:

1.     M/S MEGACITY(BENGALURU)
       DEVELOPERS AND BUILDERS LTD.
       O/AT NO.1 CHANDRA LOK
       5TH CORSS, GANDHINAGAR
       BENGALURU - 560 009
       REP BY ITS EXECUTIVE DIRECTOR
       SRI C P GANGADHARESHWARA
       S/O SRI PUTTAMADEGOWDA
       AGE:46 YEARS,

2.     SRI C P GANGADHARESHWARA
       S/O PUTTAMADEGOWDA
       AGE:46 YEARS
       R/AT CHEKKERE VILLAGE
       MALUR HOBLI
       CHANNAPATNA TALUK
       RAMANAGARA DISTRICT - 562 159.

                                        ... RESPONDENTS

    THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(c) OF CPC, AGAINST THE
ORDER DATED 30.11.2018, PASSED IN MIS.NO.42/2012
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ON THE FILE OF THE IX ADDITIONAL DISTRICT &
SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, WHERE IN, THE PETITION FILED UNDER
ORDER 9 RULE 4 AND 9 OF CPC IS ALLOWED ON COST OF
RS.3,000/- TO BE PAID TO THE RESPONDENTS BEFORE
THE TRIAL COURT ON THEIR FIRST APPEARANCE.
CONSEQUENTLY, THE DISMISSAL ORDER PASSED IN
OS.NO.937/2010 DATED 10.08.2011 IS SET ASIDE.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

The defendants in a suit for specific performance

are aggrieved by the restoration of such suit for

reconsideration under Order IX Rule 9 of the Code of

Civil Procedure, 1908 [for short, 'the CPC']. The suit

against the appellants is in O.S. No.937/2010 on the

file of the I Additional Senior Civil Judge, Bengaluru

Rural District, Bengaluru, and the impugned order of

restoration dated 30.11.2018 is in Misc. No.42/2012 on

the file of the IX Additional District and Sessions Judge,

Bengaluru Rural District, Bengaluru [for short, 'the civil

Court].

2. The undisputed facts are that the appellants

have entered into two different agreements for two

different properties with the respondents who have

commenced the suits in O.S. Nos.937/2010 and

938/2010 for specific performance. The appellants

have entered appearance and filed their pleadings. The

suit in O.S. No.937/2010, which was initially pending

consideration before the Fast Track Court-IV, Bengaluru

Rural District, is withdrawn on 28.05.2011 to be listed

before the civil Court. The suit thereafter is dismissed

by the civil Court on 10.08.2011.

3. It is also undisputed that the other suit in

O.S. No.938/2010, again for specific performance,

between the parties was also pending before the civil

Court as of 10.08.2011. The learned counsel for the

appellant submits that this suit even today is pending,

and he also submits that though the impugned order is

dated 30.11.2018, the suit in O.S. No.937/2010 is not

listed on the civil Court's board.

4. The civil Court has restored the suit in O.S.

No.937/2010 primarily on the ground that even if there

is some negligence on the part of the learned counsel for

the respondents, the respondents must not be

penalized. The civil Court has also considered the

nature of the dispute and restored the suit for decision

on merits condoning the delay in filing the application

for restoration.

5. Sri. B. Ravindra Prasad, the learned counsel

for the appellant, submits that the application for

condonation of delay was not filed initially but is filed

after completion of the evidence. The civil Court,

nevertheless, has taken up this application for

consideration along with the main petition and has

condoned the delay. The civil Court should have first

considered the question of delay and then taken up the

petition for disposal. He also submits that the

respondents' counsel on record in O.S. No.937/2010

had appeared before the civil Court after transfer and

before the dismissal and therefore the respondents

could not deny notice or knowledge of the listing of the

suit before the transferee Court. The civil Court has

overlooked material circumstances and therefore this

Court must intervene.

6. The civil Court has opined that the

respondents' learned counsel could not feign ignorance

of the proceedings pending before the transferee Court

after elaborate discussion on the procedure to be

followed whenever a suit is withdrawn from the Court

and transferred to another Court. But, the civil Court

has also opined that negligence on the part of the

learned counsel need not extend to the party. This

Court is not persuaded to opine that there is any

irregularity in the civil Court's decision to restore the

suit, and this would be so even in the light of the first

ground viz., the petition was filed without an application

for condonation of delay at the first instance.

7. If the civil Court has opined that the learned

counsel for the respondents was negligent and there is

nothing on record to show that the respondents

themselves had notice of the transfer or dismissal of the

suit, this Court would not interfere only because an

application, which is filed subsequently, is favoured.

However, it is rather surprising that though the

impugned order is almost three and half years back, the

suit is not yet restored to the civil Court's board and

taken up for consideration. This Court must issue

certain directions. Therefore, the following:

ORDER

[a] The appeal stands disposed of holding

that the impugned order dated 30.11.2018 in

Misc. No.42/2012 on the file of the IX Additional

District and Sessions Judge, Bengaluru Rural

District, Bengaluru does not call for interference.

[b] The Registrar [Judicial] is directed to

send a copy of this order and obtain a report from

the concerned Court to know the reason for the

suit not being restored to the civil Court's Board

for reconsideration as directed in the impugned

order, and to ensure that necessary measures are

taken for issuance of notice to both the appellants

and the respondents immediately upon the suit

being listed before the concerned Court for a

decision on merits.

[c] The report from the concerned

Sheristedar in this regard shall be placed before

this Court within a period of six [6] weeks from the

day this order is released.

SD/-

JUDGE AN/-