B S Raghavendra Rao vs Smt. Halubai
2022 Latest Caselaw 4980 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF MARCH, 2022

                         BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

    WRIT PETITION No.33851 OF 2017 (GM-CPC)


BETWEEN:

1. B.S.RAGHAVENDRA RAO
S/O LATE SHIVAJI RAO
AGED 28 YEARS

2. B.S.RENUKA BAI
D/O LATE SHIVAJI RAO
AGED 24 YEARS

BOTH ARE RESIDING AT NO.74
CHOWDAPPA LAYOUT,
6TH CROSS, HESARAGHATTA MAIN ROAD
DODDABAYALAKER
BANGALORE -560 089.               ..PETITIONERS

(BY SRI.PRAKASH M.S., ADVOCATE)

AND:

1. SMT.HALUBAI
DEAD BY LRs
SMT.SULOCHANA
W/O LATE SHIVAJI RAO
AGED 58 YEARS
RESIDING AT MALAVAGOPPA
SHIVAMOGA-577 222

2. SRI.HANUMANTHA RAO
S/O LATE SHYAM RAO
                                  2
                                                 W.P.No.33851/2017


AGED 51 YEARS
RESIDING AT BHARATHI NAGAR
NEAR BAMBOO BAZAR
DAVANGERE -577002

3.SULTHAN RAO
S/O SHYAM RAO
AGED 48 YEARS
RESIDING AT KEREBEERANAHALLI
ARAHATHOLALU TALUK,
SHIVAMOGA DISTRICT -577201.                ..RESPONDENTS

(BY SRI.B.S.RAGHU PRASAD, ADVOCATE FOR R-1 & R-2,
VIDE ORDER DATED 03.02.2020 NOTICE TO R-3                      HELD
SUFFICIENT)


                               ****
       This Writ Petition is filed under Article 227 of the
Constitution of India, praying to set aside the order of dismissal
passed in O.S.No.79/2010 re numbered as O.S.No.78/2012 on
the file of the I Additional Junior Civil Judge and JMFC at
Bhadravathi, Shivamogga dated 01.06.2013, by setting aside the
misc. petition No.21/2013 on the file of the Junior Civil Judge
and JMFC at Bhadravathi dated 04.02.2015 vide Annexure-C. To
set aside the order passed in M.A.No.11/2015 dated 28.04.2017
passed by the Senior Civil Judge and CJM at Bhadravathi,
Shivamogga District vide Annexure-D by allowing this writ
petition.

      This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                            ORDER

The present petitioners as plaintiffs had instituted a suit for

partition and separate possession of alleged 1/4th share in the suit

W.P.No.33851/2017

schedule properties against defendants in O.S.No.78/2012

in the Court of the learned Junior Civil Judge and JMFC, at

Bhadravathi, Shivamogga District, (hereinafter for brevity

referred to as "the Trial Court").

2. When the matter was slated for recording the

evidence of the plaintiffs' side, due to non appearance of

the plaintiffs, the suit came to be dismissed for non-

prosecution vide order dated 01.06.2013. Seeking recall of

the said order and restoration of the original suit, the

plaintiffs filed a miscellaneous case in Miscellaneous Petition

No.21/2013 in the same court under Order 9 Rule 9 of Civil

Procedure Code, however, with a delay of 128 days.

Seeking condonation of the said delay, they also filed an

application under Section 5 of the Limitation Act.

3. After hearing both the sides, the trial court by its

order dated 04.02.2015 dismissed the I.A. filed under

Section 5 of the Limitation Act. Challenging the same the

plaintiffs filed a Miscellaneous Appeal under Order 43 Rule 1

W.P.No.33851/2017

of Civil Procedure Code under M.A.No.11/0215 in the court

of the learned Principal Senior Civil Judge and JMFC,

Bhadravathi, (hereinafter for brevity referred to as "the

first appellate court"), however, with a delay of 110 days.

The first appellate court by its Judgment dated 28.04.2017

dismissed the said appeal. Aggrieved by the same, the

plaintiffs in the trial court have filed the present petition.

4. Learned counsel for the petitioners submit that the

petitioners after loosing their parents at young age were

driven away by the defendants. As such they remained

shelterless and also had no income to maintain themselves.

Thus, they migrated to Bengaluru and petitioner No.1 would

able to find a small job in a private establishment for a

meager salary. Thus, they could not appear in the court on

the date of hearing which led the trial court to pass an order

of dismissal for non-prosecution. However, both the trial

court and the first appellate court have not appreciated

those facts but rejected the Miscellaneous petition and

Miscellaneous appeal respectively.

W.P.No.33851/2017

5. Learned counsel for the respondents submits that

inspite of granting sufficient opportunity, plaintiffs failed to

lead any evidence, as such, trial court dismissed the suit for

non-prosecution. Further in the absence of convincing

reasons explaining the delay, the miscellaneous case as well

as miscellaneous appeal filed by the plaintiffs has been

rightly dismissed by the courts below.

6. A perusal of the records would go to show that the

original suit was instituted in the year 2012 and matter

came up for evidence of the parties within a year thereafter

i.e., in the year 2013. No doubt a couple of opportunities

were granted to the plaintiffs to appear. However, they

failed to utilize the opportunity granted which made the trial

court to order for dismissal of suit for non-prosecution on

01.06.2013. Seeking recalling of the said order, the

plaintiffs apart from filing a miscellaneous petition also lead

their evidence by examining petitioner No.1 as PW-1. PW-1

in his evidence before the court has stated that since he

could able to secure a job in a private company at

W.P.No.33851/2017

Bengaluru where there would be no holidays for him

and also due he being suffering from Jaundice decease for a

long time and taking Ayurveda treatment, could not appear

before the trial court on that date of hearing to lead his

evidence. The trial court only observing that for his alleged

medical treatment for the compliant of jaundice the petitioner

has not produced any medical records, rejected his application

filed under Section 5 of the Limitation Act in the said process,

trial court ignored the fact that apart from the reason of medical

ailments, the petitioner had also stated that since he was

working in a private establishment he was hardly getting any

leave to attend the court. As such, his statement that he was

not getting the leave as well his statement that he was suffering

with medical ailment which were given in his evidence so far

remained not denied or disputed from the defendants since they

did not cross examine him at all. Inspite of the same,

trial court without appreciating his reasons for unavailability

of leave and his medical ailments simply finding the reason

of non-production of medical documents by the

petitioner proceeded to reject the I.A. filed under Section 5

W.P.No.33851/2017

of the Limitation Act. At the same time, the trial court

except rejecting I.A. under Section 5 of the Limitation Act

has not pronounced the order about the miscellaneous case

which was pending before it. The said act of the trial court

was not warranted in the circumstances of the case and it

should have considered the undenied reason shown by PW-

1 in his evidence.

7. The said erroneous approach by the trial court was

further continued in the first appellate court which also

without even ascertaining the reason as to whether the

rejection of application filed under Section 5 of the

Limitation Act filed by the plaintiffs in the miscellaneous

petition was proper, had simply giving the reason that both

in filing miscellaneous case and miscellaneous appeal, the

plaintiffs has caused some delay, proceeded to reject the

miscellaneous appeal. The said approach of the first

appellate court also in dismissing the miscellaneous appeal

without analyzing the reason for the previous dismissal of

I.A. for limitation by the trial court and without even

W.P.No.33851/2017

evaluating the reason shown for the delay in preferring

miscellaneous appeal before it but simply noticing the delay

and dismissing the appeal is nothing but a continuation of

erroneous approach which was crept in the order of

miscellaneous case. As such, both these orders which are

challenged in this writ petition deserves to be set aside. At

the same time since the reason shown by the plaintiffs

through PW-1 in miscellaneous case for the delay in filing of

miscellaneous case and the reasons shown seeking for

recalling of the order of dismissal of original suit dated

1.06.2013 for non-prosecution appears to be convincing and

bonafide, the miscellaneous case No.21/2013 deserves to

be allowed.

Accordingly, the writ petition stands allowed. The

Order passed by the trial court dated 04.02.2015 in

miscellaneous case No.21/2013 and the Judgment passed

by the first appellate court dated 28.04.2017 in

Miscellaneous appeal No.11/2015 are quashed.

W.P.No.33851/2017

Miscellaneous case No.21/2013 is allowed. The Order

dated 01.06.2013 passed by the trial court dismissing

O.S.No.78/2012 for non-prosecution is set aside and

O.S.No.78/2012 is restored on file for its continuation from

the stage where it was on 01.06.2013. Considering the age

of the suit, it is appreciated if the trial court proceeds with

the matter and dispose it of in accordance with law at the

earliest for which both the parties before it shall extend

their co-operation.

Both the parties are directed to appear before the trial

court along with certified copy of this order on 04.04.2022

at 11 a.m. and participate in the further proceeding.

Sd/-

JUDGE

SBN