Karnataka High Court
Sri S Vasanth Kumar vs Smt Jayamma on 27 May, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.10192 OF 2018 (GM-CPC)
BETWEEN:
SRI. S. VASANTH KUMAR
S/O SIDDEGOWDA,
AGED ABOUT 38 YEARS,
R/AT SINGATAGERE VILLAGE,
MADARAHALLI POST, C.A.KERE HOBLI,
MADDUR TALUK, MANDYA DISTRICT-571 422.
...PETITIONER
(BY SRI. MANJUNATH M. HEGDE, ADVOCATE FOR
SRI. T SESHAGIRI RAO, ADVOCATE)
AND:
SMT. JAYAMMA
W/O JAVAREGOWDA,
AGED ABOUT 45 YEARS,
R/AT SINGATAGERE VILLAGE,
MADARAHALLI POLICE, C.A.KERE HOBLI,
MADDUR TALUK, MANDYA DISTRICT-571 422.
...RESPONDENT
(BY SRI. G.M. ANANDA, ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 04.01.2018 PASSED BY THE IVTH
ADDL. DISTRICT JUDGE, MANDYA IN M.A. NO. 34/2017
FOUND AT ANNEXURE-L TO THE WRIT PETITION, WHO
CONFIRMED THE ORDER PASSED BY THE SENIOR CIVIL
JUDGE, MADDUR DATED 01.07.2017 IN MISC. NO. 49/2013
WHICH IS FOUND AT ANNEXURE-J TO THE WRIT PETITION
AND PASS AN APPROPRIATE ORDER TO ALLOW THE
MISC.NO.49/2013.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This writ petition is filed challenging the order
dated 4.1.2018 passed in M.A.No.34/2017 passed by
the IV Additional District Judge, Mandya confirming
the order dated 1.7.2017 passed by the Senior Civil
Judge, Maddur, in Misc. No.49/2013.
2. Brief facts leading rise to filing of this petition
are as under:
The petitioner filed a suit in O.S.No.9/2007 for
the relief of permanent injunction. In the said suit,
respondent appeared and filed written statement and
the trial Court after recording the evidence and after
hearing the arguments, dismissed the suit vide
judgment and decree dated 11.8.2008. The petitioner
aggrieved by the judgment and decree passed in the
aforesaid suit, preferred appeal R.A.No.22/2009.
The Appellate Court after re-appreciation of the
material on record allowed the appeal and remitted
the matter to the trial Court for reconsideration. The
respondent aggrieved by the order passed by the
Appellate Court in R.A.No.22/2009, preferred
Miscellaneous Second Appeal in MSA No.9/2013. This
Court allowed the appeal and set aside the judgment
and decree passed by the lower Appellate Court.
Before the lower appellate Court in
R.A.No.22/2009, when the matter was set down for
arguments, on that day, the counsel for the petitioner
could not reach the Court on time to address the
arguments. The lower appellate Court taking note of
the absence of the counsel has dismissed the appeal
for default.
Thereafter, the petitioner filed an application
for re-admission of appeal before the first appellate
Court which was renumbered as Misc.49/2013. The
lower appellate Court after hearing the parties,
dismissed the Miscellaneous Petition. The petitioner
aggrieved by the order passed in the aforesaid
Miscellaneous petition, preferred appeal in
M.A.No.34/2017. The appellate Court after hearing
the parties dismissed the appeal filed by the
petitioner. Hence, this writ petition.
3. Heard learned counsel for petitioner and
learned counsel for respondent.
4. Learned counsel for the petitioner submits
that the petitioner has engaged an advocate who was
practicing at Bengaluru. The petitioner and his
counsel left Bengaluru at 1.30 p.m. in a car to Maddur
after finishing the cases at High Court. The car in
which the petitioner and his counsel were travelling
suffered break down due to mechanical problem and
as such, they could not reach Maddur. Meanwhile the
Appellate Court dismissed the appeal. He further
submits that though the petitioner has shown
sufficient cause for non appearance of his counsel, the
Court below did not properly consider the sufficient
cause shown by the petitioner. Hence, he submits
that the impugned orders passed by the Courts below
are arbitrary and capricious. Hence, on these
grounds, he prays to allow the writ petition.
5. Per contra, learned counsel for the
respondent submits that the petitioner being an
Advocate is well aware of the proceedings of the Court
and that the Courts below were justified in passing the
impugned orders. Hence. On these grounds, he
prays to dismiss the writ petition.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. It is not in dispute that the petitioner has
filed a suit for the relief of permanent injunction
against the respondent. The said suit came to be
dismissed. The petitioner aggrieved by the same,
preferred appeal in R.A.No.22/2009. The Appellate
Court after re-appreciating the material on record
allowed the appeal and remitted the matter to the trial
Court for reconsideration. The respondent, aggrieved
by the judgment passed by the Appellate Court in
R.A.No.22/2009, preferred appeal in MSA No.9/2013
before this Court. This Court allowed the appeal, set
aside the judgment and decree passed by the Lower
Appellate Court, remanded and directed the Lower
appellate Court to dispose of the appeal on merits
within three moths.
7.1 The matter was posted before the lower
appellate Court in R.A.No.22/2009 on 13.6.2013. On
the said date, the counsel appearing for the petitioner
could not reach the Court on time to address the
arguments as the said counsel is practicing in
Bengaluru. The reason assigned by the petitioner for
non reaching of his counsel on time to the Court is,
the car, in which his counsel travelled to attend the
case, suffered brake down problem and reached
Maddur at 5.30 p.m. By that time, the lower appellate
Court taking note of the absence of the counsel has
dismissed the appeal for default.
7.2. Thereafter, the petitioner filed an
application for re-admission of appeal before the first
appellate Court which was renumbered as
Misc.49/2013. The lower appellate Court after hearing
the parties, dismissed the Miscellaneous Petition. The
petitioner aggrieved by the order passed in the
aforesaid Miscellaneous petition, preferred appeal in
M.A.No.34/2017. The appellate Court after hearing
the parties dismissed the appeal filed by the
petitioner.
7.3. On perusal of the records, it is clear that the
courts below have not properly considered the
sufficient cause for non appearance of his counsel on
13.6.2013. When a party approaches the Court with
a genuine grievance, the matter should be heard on
merits rather than being disallowed on technical
grounds. The Courts below without considering the
sufficient cause shown by the petitioner has passed
impugned orders. The impugned orders passed by
the courts below are arbitrary and erroneous and the
same is liable to be set aside. The Courts below have
committed on error in rejecting the application filed by
the petitioner for readmission of appeal. The Court is
required to dispense justice on the merits of the case
but parties cannot be denied justice on technical
ground.
8. In view of the above discussion, the following
order is passed :
ORDER
i) The writ petition is allowed;
ii) The impugned orders are set aside;
iii) The application filed by the petitioner under Order
XLIX Rule 19 CPC is allowed subject to payment of
cost of Rs.20,000/-. The petitioner shall pay the cost
of Rs.20,000/- to the respondent within a period of
one month from today;
iv) The appeal is restored. The Appellate Court is
directed to dispose of the appeal within a period of
three months from the date of receipt of certified copy
of this order;
v) Parties are directed to appear before the Court on
27.6.2022 without waiting for further notice.
SD/-
JUDGE
rs
