Karnataka High Court
Sri Tahir Ali vs Smt Mahalakshmi on 30 June, 2022
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.1914/2019 (CPC)
BETWEEN:
SRI TAHIR ALI
S/O LATE USMAN ALI
AGED ABOUT 53 YEARS
R/AT DOOR NO.263,
MAHADEVAPURA ROAD
BHARATH NAGAR
MYSORE - 570 029.
... APPELLANT
(BY SRI. AJIT KALYAN, ADVOCATE)
AND:
SMT. MAHALAKSHMI
W/O S PRAKASH
AGED ABOUT 36 YEARS
R/AT D NO. 2513/2D
2ND CROSS, 1ST MAIN ROAD
K G KOPPAL
MYSORE - 570 009.
... RESPONDENT
(BY SRI.S.M. BABU, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(D) OF CPC, 1908, AGAINST THE
ORDER DATED 19.01.2019 PASSED ON MIS.NO.19/2017
ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC,
SRIRANGAPATNA, DISMISSING THE MISC.PETITION FILED
BY THE PETITIONER UNDER ORDER IX RULE 13 OF CPC.
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THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant has suffered ex parte decree for
specific performance in O.S. No.25/2016 on the file of
the Principal Senior Civil Judge and JMFC,
Srirangapatna [for short, 'the civil Court'], and the
appellant's subsequent petition under Order IX Rule 13
of the Code of Civil Procedure, 1908 [for short, 'the
CPC'] in Misc. No.19/2017 is rejected by the civil Court
by the impugned order dated 19.01.2019. This Court
has granted interim order staying the further
proceedings in Execution No.4/2017 filed by the
respondents for enforcement of the decree for specific
performance.
2. The respondent has filed the suit for specific
performance in O.S. No.25/2016 on 23.04.2016 relying
upon the Sale Agreements dated 24.04.2013 and
31.05.2014. The appellant is served with the suit
summons on 28.04.2016 [as submitted by the learned
counsel for the appellant], and he is placed ex parte on
31.05.2016 with the evidence being recorded on
28.06.2016. The suit is decreed on 29.08.2016. The
appellant has filed the application under Order IX Rule
13 of the CPC.
3. The appellant has asserted that he could not
appear before the civil Court on 31.05.2016 or on any
other date before disposal of the suit because he was
bedridden for a period of ten days in the last week of
May and the first week of June 2016. He came to know
about the decree in the suit only in the month of
October 2016 when his Counsel could verify the details
on the internet. The appellant has applied for certified
copy of the records, but he could not immediately file
the application for restoration of the suit because his
Counsel suffered fracture injury in an accident.
4. The appellant has sought for condonation of
delay and for restoration of the suit for a decision on
merits relying on these circumstances. The appellant,
to bolster his case for condonation of delay and
restoration of the suit, has examined himself as PW.1
and he has marked the medical records of his Counsel,
Sri. M.C. Devaiah, and his own Medical Certificate
[Exhibit.P3]. The civil Court has refused to consider the
medical records of Sri. M.C. Devaiah on the ground that
it does not relate to the appellant. The civil Court has
also discarded the appellant's Medical Certificate only
because this certificate mentions that the appellant was
suffering from viral fever. Further, the civil Court has
opined that the appellant has not placed any material
on record to show cause against the delay of over ten
months in filing the petition for restoration.
5. Sri. Ajit Kalyan, the learned counsel for the
appellant, submits that a conjoint reading of the
petition and the application in support for condonation
of delay establishes that the appellant is categorical that
the delay is because his Counsel suffered injury and he
could not participate in the suit before the decree
because of his own ill health and therefore even the
medical records of his Counsel, Sri. M.C. Devaiah would
be relevant. The appellant could not appear on
31.05.2016 because of his ill health, but no malafides
can be attached to the appellant as the entire suit is
decided within the next three months. He argues that
the civil Court has not considered the appellant's case
for condonation of delay and restoration in its proper
perspective and there is material irregularity.
6. Sri. S.M. Babu, the learned counsel for the
respondent, on the other hand, submits that the
appellant should have examined his Counsel if he was
bona fide in his reason that his Counsel had suffered
injury and therefore he could not file his petition for
restoration of the suit over a period of ten months. The
appellant has not offered any explanation for not
examining his Counsel. There is greater onus on the
appellant, and this onus is not discharged. Therefore,
the civil Court has rightly rejected the application for
condonation of delay and the application for restoration
of the suit.
7. The appellant's reasons for his absence on
31.05.2016 and on the subsequent dates before the
decree on 29.08.2016, and the failure to commence the
proceedings for restoration of the suit immediately on
coming to know about the decree, have been separately
explained. He has examined himself in support of such
explanation apart from marking the medical records. If
the suit is decreed within a period of three months from
the date of first appearance and if it is shown that the
appellant suffered from some illness that tied him to the
bed for a period for ten days during the pendency of the
suit, such explanation must necessarily be considered
liberally.
8. The civil Court has also erred in discarding
the significance of the medical records of the appellant's
Counsel, Sri. M.C. Devaiah. These records corroborate
the appellant's case that he could not file his application
for restoration of the suit immediately because his
Counsel suffered injury in an accident. Of course, the
appellant has not examined the Counsel but that would
by not by itself deter the efficacy of the medical records.
9. Further, the civil Court should have
considered the explanation in the light of the settled
proposition that the Courts must lean in favour of a
decision on merits unless malafide or third-party rights
are shown. In the present case, neither are alleged.
Therefore, this Court is of the considered view that the
appeal must be favoured but again the appellant must
be put on reasonable terms to ensure that the final
adjudication is not protracted unnecessarily. Hence the
following:
ORDER
[a] The appeal is allowed;
[b] The impugned order dated 19.01.2019
in Misc. No.19/2017 and the ex-parte
Judgment dated 29.08.2016 in O.S.
No.25/2016 of the Principal Senior Civil
Judge and JMFC, Srirangapatna, is restored
for decision on merits.
[c] The appellant and the respondent shall
appear before the civil Court on 25.07.2022,
without further notice.
[d] The appellant shall file his written
statement on the first date of hearing or
such further time that the civil Court may
allow but not later than thirty [30] days from
the date of appearance.
[e] The appellant shall also pay cost of
Rs.35,000/- to the respondent on the date of
the first appearance.
SD/-
JUDGE
AN/-
