M.S.Ananda vs M.Govindappa
2022 Latest Caselaw 3517 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 02 N D DAY OF MARCH, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.8608 OF 2019 (CPC)

BETWEEN:

M.S.Ananda,
S/o Late K.Srinivasa Gowd a
Aged about 50 years,
Residing at Hosur Village
(Madig arahalli Villag e)
Kasaba Hobli,
Bang arp et Taluk,
Kolar District - 563114.
                                            ...Appellant
(By Sri P.C.Naresh Kumar, Advocate for
    Sri G.Manivannan, Advocate)

AND:

1.   M.Govind appa,
     S/o Late Munivenkatapp a,
     Aged about 65 years,

2.   G.Jayap rakash,
     S/o M.Govindappa,
     Aged about 27 years,

     Both are residing at
     Dodd a Anjenayaswamy Temple
     Cross, Brahmin Street,
     Kolar-563101.
                                         ...Respondents

(By Sri N.Harip rasad, Ad vocate for R1 and R2)
                                  :: 2 ::


     This MFA is filed und er Ord er 43 Rule 1(d) of CPC
against     the    order     d ated        05.09.2019          p assed       in
Misc.No.11/2018         on    the      file   of    the   II    Additional
Senior Civil Judge and JMFC at Kolar, dismissing the
Misc. Petition for non-prosecution.

     This MFA coming on for hearing this d ay, the
Court delivered the following:

                           JUDGMENT

This appeal has been preferred by the

petitioner in Misc. 11/2018 on the file of II

Additional Senior Civil Judge and JMFC, Kolar.

2. Heard Sri Naresh Kumar, advocate, on

behalf of Sri G.Manivannan and Sri N.Hariprasad,

advocate for respondents.

3. The petitioner was defendant in

O.S.59/2017, a suit for specific performance

instituted by respondents herein. The suit came to

be decreed ex-parte and seeking to set aside the

ex-parte judgment, the petitioner made an

application under Order IX Rule 13 of CPC which :: 3 ::

was registered as Misc. Petition No.11/2018. The

said Miscellaneous Petition was also dismissed for

non-prosecution by the impugned order and hence

this appeal.

4. It is submitted by Sri Naresh Kumar that

the Miscellaneous Petition was dismissed on

5.9.2019. The petitioner could not appear before

the court because he had been hospitalized from

14.6.2019 to 3.7.2019. Even after discharge from

the hospital, he was advised to take bed rest.

This was the reason for the petitioner for not

being able to appear before the court when the

Miscellaneous Petition was posted for inquiry.

Along with the appeal, the petitioner has produced

medical records. The records show that the

petitioner was admitted to Sri Jayadeva Institute

of Cardiovascular Sciences and Research,

Bengaluru, and he was an inpatient in the said

hospital from 14.6.2019 to 3.7.2019. It is stated :: 4 ::

that the petitioner had suffered heart attack and

underwent by-pass surgery. Taking into

consideration the reasons ascribed by the

appellant, I am of the opinion that this appeal may

be allowed for restoring the Miscellaneous Petition

11/2018. The appellant has to be subjected to

costs for compensating the interest of the

respondents. In this view, the following order : -

    (a)    Appeal is allowed.

    (b)    The order dated 5.9.2019 passed by

the II Additional Senior Civil Judge

and JMFC, Kolar, dismissing the

Miscellaneous Petition No.11/2018 for

non-prosecution is set aside.

Miscellaneous Petition 11/2018 is

restored to the file of the court

below.

(c) The appellant shall pay costs of

Rs.10,000/- to the respondents.

:: 5 ::

(d) The appellant and the respondents

shall appear before the court below

on 22.3.2022.

(e) The appellant shall pay costs to the

respondents in the court below on the

day fixed for appearance of parties.

Sd/-

JUDGE

ckl/-