Karnataka High Court
Mahesh Babu S vs Smt Manjulavani on 24 June, 2022
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.9053/2015 (CPC)
BETWEEN:
1. MAHESH BABU S
S/O LATE SAMBAIAH,
AGED ABOUT 50 YEARS,
2. BHASKAR @ BALA BHASKAR
S/O LATE S SAMBAIAH,
AGED ABOUT 48 YEARS,
APPELLANTS 1 AND 2
R/AT NO.20-124,
ANJANEYA SWAMY TEMPLE STREET,
DHARMAVARAM TALUK,
ANANTHAPURA DISTRICT,
ANDRA PRADESH STATE-515 671.
3. SMT BALAKRISHNAVENI
D/O LATE S SAMBAIAH,
AGED ABOUT 61 YEARS
RETIRED TAHSILDAR,
R/AT NO.45,17TH WARD,
3RD MAIN ROAD,
VENKATESWARA NAGAR,
BELLARY-583 101.
-2-
4. SMT GIRIJA KUMARI @ MAHESHWARI
D/O LATE S SAMBAIAH,
AGED ABOUT 53 YEARS
R/AT 1-1528,TEACHERS COLONY,
PAMIDI-515775, ANANTHAPUR DISTRICT
ANDRA PRADESH.
5. SMT SAILAJA KUMARI
W/O DR. VIJAYAKUMAR,
AGED ABOUT 56 YEARS
R/AT DURGA CLINIC
MAIN BAZAAR,
MAKTHAL-509 208
MAHABOOB NAGAR DISTRICT,
ANDHRA PRADESH.
... APPELLANTS
(BY SRI. MAHESH .S AND
SRI. SANJAY YADAV.B.ADVOCATES)
AND:
SMT. MANJULAVANI
W/O NAGARAJU V,
AGED ABOUT 54 YEARS
R/AT NO.896,3RD A MAIN ROAD,
D BLOCK,II STAGE, RAJAJINAGAR,
BANGALORE - 560 010.
... RESPONDENT
(BY SRI.K.P. BHUVAN, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(d) R/W SEC.151 OF CPC,
AGAINST THE ORDER DATED 31.10.2015 PASSED ON
MISC. NO.385/13 ON THE FILE OF THE 3RD
ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
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BENGALURU, DISMISSING THE PETITION FILED
U/O.9 RULE 13 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING
ON FOR ORDERS THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
The appellants have impugned the order dated
31.10.2015 in Misc.386/2013 on the file of the III
Additional City Civil Judge, Bengaluru (for short, 'the
civil Court'). The civil Court by this order has rejected
the appellants' application under Order IX Rule 13 of
CPC to set aside the ex parte judgment dated
20.06.2013 in O.S.No.462/2013 and to restore the suit
for decision on merits.
2. The relationship amongst parties is not
disputed, and they are the children of late S.Sambaiah
and late S.Venkatasubbamma. The respondent, who is
one of the daughters, has filed the suit in
O.S.No.462/2013 for partition of two immovable
properties. The appellants are served with the suit
summons, and they have entered appearance though
their learned Counsel on 12.02.2013. At their instance,
the suit is adjourned for filing the written statement,
and on the second occasion viz., 13.03.2013, the civil
Court has recorded that there is no written statement
and has listed the suit for evidence on 16.04.2013. On
this day, the suit is adjourned because the Presiding
Officer was on leave and on the next date of hearing viz.,
06.06.2013, the respondent has examined herself as a
witness and the suit is listed on 17.06.2013 for
arguments and the judgment is pronounced on
28.06.2013.
3. The appellants, who did not file their written
statement, have filed their petition under Order IX Rule
13 of CPC in time contending that their Counsel had
noted a wrong date and as such they could not appear
before the civil Court on any one of the aforesaid
hearing dates. The civil Court in the light of the
material placed on record by the appellants, including
the ocular evidence, has rejected the petition by the
impugned order. The civil Court has opined that the
reason offered by the appellants cannot be accepted and
that the appellants cannot be given another opportunity
for mere asking.
4. The learned Counsel for the appellants
submits that the appellants are bona fide in offering
their explanation and though the cause shown by itself
may not be acceptable, it would be undeniable that the
appellants, who relied upon their learned counsels,
could not have known about the specific dates. The
appellants reside in Andhra Pradesh. The learned
counsel also emphasizes that the entire suit is decided,
even without the suit being listed for cross-examination
of PW.1, within a period of five months from the date of
first appearance. He canvasses that this Court must
lean in favour of a decision on merits because the mala
fides cannot be alleged against the appellants.
5. Sri K.P.Bhuvan, the learned counsel for the
respondent on the other hand, submits that the
respondent is constrained inasmuch as she has to look
after her handicapped son and the appellants have not
contested the suit essentially because they had agreed
to give up rights in one of the suit schedule properties
in favour of the respondent. He submits that the suit is
filed for partition of two immovable properties with one
of the properties being in Bengaluru and the other in
Ananthapur district, Andhra Pradesh.
6. This Court must record that it is settled that
the Courts must take such a view as would enable the
decision in a suit on merits especially when no mala
fides can be attached. There is nothing on record to
indicate that the appellants, who were aware of the
proceedings, have chosen to stay away and have offered
explanation only as ruse for their absence. As pointed
out by the learned counsel for the appellants, the suit is
decided within the period of five months from the date of
their appearance and that too without the suit being
listed for cross-examination of the respondent who is
examined as PW.1. Here again, this Court must observe
that even if a defendant has not filed written statement,
he would be entitled to cross-examine the witness
examined by the plaintiff. The appellants admittedly do
not reside in Bangalore. The civil Court should have
extended another opportunity to facilitate complete
adjudication.
7. This Court, in the circumstances aforesaid,
is of the considered view that the civil Court, in rejecting
the appellants' application for restoration of the suit,
has taken a hyper technical approach when it should
have taken that course which would have enabled a
decision on merits. When the appellants are extended
another opportunity, they cannot tarry the proceedings
and must show every urgency to see that the suit is
decided on merits, and they must also be called upon to
pay a reasonable cost to the respondent. For the
foregoing the following:
ORDER
a. The petition is allowed, and the impugned
order dated 31.10.2015 in Misc.386/2013 and
also the ex parte judgment and decree in
O.S.No.462/2013 dated 28.06.2013 are set
aside and the suit in O.S.No.462/2013 is
restored for decision on merits for
reconsideration.
b. The appellants and the respondent shall
appear before the civil Court without further
notice on 18.07.2022.
c. The appellants, within the first thirty days from
the date of first appearance, shall file their
written statement and also pay costs of
Rs.30,000/- to the respondent. If the
appellants fail either to pay costs or file written
statement within the time now allowed, they
shall forfeit the right to file their written
statement.
d. The appellants and the respondent shall
cooperate and assist the civil Court in
disposing of the suit within an outer limit of
nine months from the date of first appearance.
SD/-
JUDGE
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