Sri V Srinivasa vs Smt Lakshmamma
2022 Latest Caselaw 7430 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MAY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

               M.F.A. NO.5868/2021 (CPC)

BETWEEN :

SRI.V.SRINIVASA
S/O VENKATARAMANA
AGED ABOUT 41 YEARS
R/AT NO.35, KENGERI CHECK POST
VISHWA OKKALIGARA BHAVAN
BABASABRAPALYA
BANGALORE - 560 060                        ...APPELLANT

(BY SRI.K.SHRIKRISHNA, ADVOCATE FOR
    SRI.KESHAVA BHAT A, ADVOCATE)

AND :

1.      SMT.LAKSHMAMMA
        W/O VENKATARAMANAPPA

        SINCE DEAD BY LR'S ARE
        ON RECORD R8 TO R10
        AMENDED AS PER ORDER
        DATED 22.12.2021

2.      SRI.VENKATARAMANA
        S/O LATE VENKATAPPA
        AGED ABOUT 62 YEARS
        R/AT PUTTASETTY PUTTASWAMAPPA HOUSE
        ELEKERI HOSTEL STREET
        CHANNAPATNA, RAMANAGARA DISTRICT

3.      SRI.SHIVAKUMARA
        S/O LATE SAROJAMMA
                            2



     D/O LATE VENKATAPPA
     AGED ABOUT 40 YEARS

4.   SMT.YASHODA
     D/O LATE SAROJAMMA
     AND LATE VENKATAPPA
     AGED ABOUT 35 YEARS

5.   SRI.NAGESHA
     S/O LATE SAROJAMMA
     AND LATE VENKATAPPA
     AGED ABOUT 32 YEARS

     (RESPONDENT NOS.3, 4 AND 5 ARE
     R/AT NO.123, VIDHYAVARDHAKA
     ENGINEERING COLLEGE, HIGH TENSION ROAD
      GOKULAM 3RD STAGE, MYSORE DISTRICT)

6.   SMT.PARVATHAMMA
      W/O SHIVANNA &
      D/O LATE VENKATAPPA
      AGED ABOUT 55 YEARS
      R/AT NO.71/4
      SRI.SHAMBULINGESHWARA NILAYA
      JNANABHARATHI ROAD
      MARIYAPPANAPALYA
       BANGALORE UNIVERSITY ROAD
      BANGALORE - 560 060

7.   SMT.PREMA
      D/O LATE VENKATAPPA
      W/O BYRAPPA
      AGED ABOUT 53 YEARS
      R/AT CHIKKABIDARAKALLU VILLAGE
      NELMANGALA, BANGALORE

8.   SRI.K.V.GOVINDA
     S/O VENKATARAMANAPPA
     AGED ABOUT 45 YEARS
     R/AT NO.25/1, 5TH CROSS
     1ST MAIN ROAD
     DEEPANJALINAGAR, BANGALORE - 560 026
                                3



9.     K.V.MANGALAMMA
       W/O LATE K.V.GOPALA
       AGED ABOUT 40 YEARS

10.    PAVAN
       S/O K.V.GOPAL
       ABOUT 19 YEARS
       RESPONDENT NO.9 AND 10 ARE
       R/AT KANAMINIKE VILLAGE
       KENGERI HOBLI, BANGALORE SOUTH TALUK
       BANGALORE
                                  ... RESPONDENTS

(BY SRI.N.SHIVAKUMAR, ADVOCATE FOR R8 - R10;
    NOTICE TO R2 TO R5 ARE DISPENSED WITH
    R6 TO R7 ARE SERVED)

      THIS MFA IS FILED UNDER ORDER 43 RULE 1(C) OF CPC,
AGAINST THE ORDER DATED 23.09.2021 PASSED IN MIS.
NO.25097/2016 ON THE FILE OF THE LVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU,
(CCH-58) DISMISSING THE PETITION FILED UNDER ORDER 9
RULE 9 OF CPC.

     THIS MFA COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The plaintiff, whose suit for partition in

O.S.No.27040/2011 on the file of the LVII Additional

City Civil and Sessions Judge, Mayohall Unit,

Bengaluru (for short 'the civil Court') is dismissed for

default on 29.04.2016, has filed the present appeal

calling in question the order dated 23.09.2021 in Misc.

No.25097/2016. The Civil Court by the impugned order

has rejected the petitioner's miscellaneous petition in

Misc. No. 25097/2016 under Order IX Rule 9 of CPC,

and thus refusing restoration of the suit in

O.S.No.27040/2011.

2. The second respondent, the appellant's

father, has transferred the suit schedule properties

which together make a composite residential property

[hereafter referred to as the subject property], in favour

of the deceased first respondent on 02.11.2006. The

subject property is purchased by the appellant's

grandfather, Sri Venkatappa, in the years 1957 and

1973. The appellant's suit in O.S.No.27040/2011 for

partition is based on the assertion inter alia that his

father was managing the subject property as the kartha

of a coparcenary comprising of the appellant and the

other members of the family. The appellant's father

could not have sold the subject property on his own

without the consent of other family

members/coparceners.

3. The pleadings were complete and suit was

repeatedly listed for evidence after issues were framed.

In fact, with the deceased first respondent, the

purchaser, transferring the suit schedule property in

favour of the eighth respondent and Sri K.V.Gopal [now

represented by the ninth and the tenth respondent],

these persons are also impleaded in the suit.

4. The appellant did not turn up before the civil

Court on 29.04.2016 when the suit was listed for his

evidence, neither his counsel was present. Therefore,

the suit was dismissed for default. The appellant has

filed the petition in Misc. No.25097/2016 stating that

he was under-weather because of dehydration on

29.04.2016 and as such he could not appear before the

Court and learned counsel could not appear when the

case was called as he was on his legs in another Court.

5. The appellant in support of this assertion

has examined himself as PW.1 in the miscellaneous

proceedings, and he has been cross examined by the

other side. However, he has not produced any

documents to substantiate that he was under-weather

as of the date. The civil Court has rejected the

miscellaneous petition observing that the reason that

the appellant's learned counsel was on his legs in

another Court would not constitute sufficient cause and

the appellant has not placed any material to establish

that he was suffering from dehydration.

6. Sri Srikrishna, learned counsel who appears

on behalf of Sri Keshav Bhat, submits that the civil

Court ought to have considered the appellant's case that

he was not keeping well in the light of the fact that the

respondents have not let in evidence. The appellant's

case that he was not keeping well could not have been

brushed aside only because he did not produce

documents. The appellant has sworn to an affidavit

stating that he was suffering from dehydration and as

such he could not appear before the civil Court on

29.04.2016.

7. On the other hand, Sri V.Shivakumar, the

learned counsel who appears for the current owners of

the property viz., Sri K.V.Govind - the eighth

respondent and the legal heirs of K.V.Gopal [the ninth

and tenth respondents], submits that the suit was listed

for evidence on 29.04.2016 after 14 occasions. The

appellant who had to lead evidence on each of these

occasions had failed to do so. The appellant's

contention that he was suffering from dehydration and

therefore could not appear before the appellant could

only be a self-serving statement and that cannot be

accepted at its face value.

8. The rival submissions are considered in the

context of the dispute and the question that arises for

consideration is:

Whether the civil Court is justified in its opinion that the appellant has not shown sufficient cause to explain his absence on 29.04.2016 in the suit.

9. The essential facts remain vastly undisputed

and require no elaboration other than what are stated

above. The appellant has stated on oath that he could

not appear on 29.04.2016 because he was suffering

from dehydration. This assertion on oath could be

dismissed as a self-serving testimony, because no

document is produced. However, the merits of this

assertion must be examined on the scale of

preponderance of probabilities. It is not that every

person who suffers dehydration or difficulties because of

dehydration seeks medical assistance and it is not

strange that under certain circumstances, a person

suffering from mild symptoms of dehydration could

choose to stay at home to rest and recover. There is

nothing on record for this Court to infer that this would

not be so in the present case and the appellant's

assertion in this regard is only a ruse. It is settled that

the Courts must not take a pedantic view and lean in

favour of a decision on merits unless malafides are

established.

10. In the light of this discussion, this Court is

of the considered view that the Civil Court has erred in

concluding that the appellant has failed to establish

sufficient cause. The absence of the learned counsel

before the trial Court by itself would also not be a

ground to reject the petitioner's case. However, the

appellant must be put on reasonable terms. This Court,

in the context of the dispute and the length of time

taken, is of the considered view that the parties must

assist and cooperate with the civil Court to dispose of

the suit expeditiously and the appellant should be put

on reasonable terms. Hence the following:

ORDER

i) The appeal is allowed and the

impugned order dated 23.09.2021 is set

aside and the petition filed by the appellant

under Order IX Rule 9 of CPC is allowed

restoring the suit to O.S.No.27040/2011 for

consideration on merits.

ii) The appellant and the contesting

respondents shall appear before the Civil

Court without further notice on 30.06.2022.

iii) The appellant shall deposit a sum

of Rs.30,000/- on the first date of

appearance or such further time as may be

allowed by the Civil Court, but not later than

six weeks from the date of first appearance.

If the appellant fails to deposit such amount,

the failure shall constitute a default.

iv) The parties shall assist and

cooperate with the civil Court to dispose of

the suit expeditiously and in any event

within an outer limit of nine months from

the date of first appearance.

SD/-

JUDGE

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