Karnataka High Court
Smt V Bharathi vs Bengaluru Development Authority on 23 May, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.50333 OF 2019 (GM-CPC)
BETWEEN:
SMT. V. BHARATHI
SRI. G. VIJAY KUMAR,
AGED ABOUT 59 YEARS,
R/AT NO.64, 2ND STAGE,
INDIRA NAGAR,
BANGALORE-560 038.
...PETITIONER
(BY SRI. P B RAJU, ADVOCATE)
AND:
BENGALURU DEVELOPMENT AUTHORITY
THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
BANGALORE-560 020.
....RESPONDENT
(BY SRI. K.S. NAGAREDDY, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 18.10.2019 PASSED IN MISC
NO.25180/2014 PASSED BY THE 28TH ADDL. CITY CIVIL
AND SESSIONS JUDGE BANGALORE AT ANNEXURE-A.
2
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner being aggrieved by the order
dated 18.10.2019 passed in Misc. No.25180/2014 by
the XXVIII Additional City Civil and Sessions Judge,
Bengaluru, has filed the present writ petition.
2. Brief facts leading rise to filing of this petition
are as under:
The petitioner has filed a suit in
O.S.No.15955/2003 for declaration against the
respondent. The trial Court has issued summons to
the respondent. In spite of service of summons, the
respondent did not appear before the trial Court and
was placed exparte. The trial Court recorded the
evidence of the petitioner and decreed the suit
exparte vide judgment dated 18.3.2004. The
respondent filed a petition in Misc. Petition
No.15127/2005 to set aside the exparte judgment and
decree passed in the aforesaid suit. The said
miscellaneous petition came to be dismissed on
26.7.2008. The respondent filed Miscellaneous
Petition No.25032/2009 to set aside the dismissal of
Misc. Petition No.15127/2005. The said Miscellaneous
Petition No.25032/2009 came to be dismissed for
default. The respondent has filed Miscellaneous
Petition No.15190/2011 to restore the Miscellaneous
Petition No.25032/2009 and the same also came to be
dismissed vide order dated 16.8.2004. The
respondent filed Miscellaneous Petition
No.25180/2014 to set aside the dismissal of the
earlier Miscellaneous Petition and restore the suit in
O.S.No.15955/2003. The said Miscellaneous Petition
came to be allowed vide order dated 18.10.2019 and
suit came to be restored. The petitioner aggrieved by
the order passed in the Miscellaneous Petition
No.25180/2014 filed this writ petition.
3. Heard learned counsel for petitioner and none
appeared for respondent.
4. Learned counsel for the petitioner submits
that the petitioner filed a suit in O.S.No.15955/2003
and the trial Court has issued summons to the
respondent. In spite of service of summons, the
respondent has failed to appear and was placed
exparte. The trial Court decreed the suit exparte. He
further submits that the respondent has filed a
petition in Misc. Petition No.15127/2005 on
16.7.2005, to set aside the exparte judgment and
decree passed in the aforesaid suit i.e., after a lapse
of more than a year and until then the respondent had
not taken any steps. The said miscellaneous petition
came to be dismissed on 26.7.2008. He further
submits that thereafter the respondent had been filing
petition after petition which came to be dismissed.
However, the trial Court without considering the
aforesaid facts has allowed the Miscellaneous Petition
No.25180/2014 filed by the respondent vide order
dated 18.10.2019 and restored the suit filed by the
petitioner. Learned counsel for the petitioner submits
that the trial Court has committed an error in passing
the impugned order. Hence, on these grounds, he
prays to allow the writ petition.
5. None appears for the respondent. Hence, the
argument of the respondent is taken as 'nil'.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. It is not in dispute that the petitioner filed a
suit in O.S.No.15955/2003 for declaration against the
respondent. The trial Court issued summons to the
respondent. In spite of service of summons, the
respondent did not appear before the trial Court and
was placed exparte. Thereafter, the trial Court
recorded the evidence of the petitioner and
pronounced the judgment on 18.3.2004. The
respondent filed Misc. Petition No.15127/2005 to set
aside the exparte judgment and decree passed in the
aforesaid suit after a lapse of more than one year. In
the said miscellaneous petition, the respondent has
not taken steps inspite of granting sufficient time.
The said miscellaneous petition came to be dismissed
for default by the trial Court vide order dated
26.7.2008. The respondent filed Miscellaneous
Petition No.25032/2009 to set aside the order of
dismissal of Misc. Petition No.15127/2005. The said
Miscellaneous Petition No.25032/2009 came to be
dismissed for default vide order dated 27.7.2011. The
respondent filed Miscellaneous Petition
No.15190/2011 to restore the earlier Miscellaneous
Petition No.25032/2009 and the same also came to be
dismissed vide order dated 16.8.2004. The
respondent filed Miscellaneous Petition
No.25180/2014 to set aside the dismissal of the
earlier Miscellaneous Petition and restore the suit in
O.S.No.15955/2003. The said petition was opposed by
the petitioner by filing objection. The trial Court after
hearing the parties has passed the impugned order.
8. From the perusal of the impugned order, it is
seen that the trial Court has not considered the
orders passed in the previous miscellaneous petitions
filed by the respondent. Further, the respondent has
not explained sufficient cause for not appearing in the
suit-O.S.No.15955/2003. Further, records discloses
that the respondent was negligent in conducting the
previous proceedings. The respondent is successful in
keeping litigation alive for more than one decade from
the date of disposal of suit. The said aspects have not
been considered by the trial Court and has passed the
impugned order. The impugned order passed by the
trial Court is arbitrary and erroneous and the same is
liable to be set aside.
9. Accordingly, I proceed to pass the following
order :
ORDER
i) The writ petition is allowed.
ii) The impugned order dated 18.10.2019
passed in Misc. No.25180/2014 by the
XXVIII Additional City Civil and Sessions
Judge, Bengaluru, is set aside and the
Miscellaneous Petition is dismissed.
SD/-
JUDGE
rs
