Karnataka High Court
Smt. Venkatamma vs Sri Veeranna on 13 December, 2023
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NC: 2023:KHC:45357
CRP No. 244 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO. 244 OF 2018
BETWEEN:
1. SMT. VENKATAMMA,
W/O. HANUMANTHAPPA,
MAJOR.
2. SRI. HANUMANTHARAYAPPA,
S/O. HANUMANTHAPPA,
MAJOR.
3. SMT. JAYAMMA,
W/O. LATE MANJUNATHA,
MAJOR.
4. SRI. N.H. KUMAR,
Digitally S/O. LATE MANJUNATHA,
signed by
SUMA MAJOR.
Location:
HIGH
COURT OF 5. SRI. PRAKASH,
KARNATAKA
S/O. LATE MANJUNATHA,
MAJOR,
ALL ARE R/AT. MADDAKANAHALLI,
GOWDEGERE HOBLI, SIRA TALUK,
TUMAKURU DISTRICT - 572 137.
...PETITIONERS
(BY SRI. K.N. NITISH, ADVOCATE)
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CRP No. 244 of 2018
AND:
1. SRI. VEERANNA,
AGED ABOUT 78 YEARS,
S/O. LATE HUCHAPPA.
2. SRI. D.V. SURESH,
AGED ABOUT 42 YEARS,
S/O. VEERANNA,
BOTH ARE R/AT. NADURU VILLAGE,
GOWDEGERE HOBLI,
SIRA TALUK,
TUMAKURU DISTRICT - 572 137.
...RESPONDENTS
(BY SRI. MUSHTAQ AHMED, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF CODE OF
CIVIL PROCEDURE AGAINST THE ORDER DATED 21.10.2017
PASSED IN MIS.NO.01/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., SIRA ALLOWING THE PETITION FILED
UNDER ORDER 9 RULE 9 OF CPC.
THIS PETITION, COMING ON FOR FURTHER ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have challenged the order dated
21.10.2017 passed by the Senior Civil Judge and JMFC,
Sira in Miscellaneous No.1/2016 by which petition under
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Order 9 Rule 9 read with Section 151 of CPC filed by the
respondents was allowed and RA No.33/2013 was restored
to file.
2. A suit in OS No.135/2006 was filed for specific
performance of an agreement of sale by the appellants
herein which was decreed in terms of the judgment and
decree dated 26.06.2012. An appeal was filed by the
respondents in RA No.33/2013 which was dismissed for
default on 06.08.2014. Long thereafter i.e., nearly after
one and half years, petition was filed to restore the
appeal. The respondents lead evidence to justify the
grounds for condonation of delay and marked Ex.P1 to P3.
However, the petitioners did not examine themselves and
did not mark any documents. Based on the evidence
adduced before the Trial Court, it held that the respondent
had established that he was prevented by sufficient cause
from the miscellaneous petition in time. It therefore
allowed the application for condonation of delay. Having
regard to the fact that the suit was decreed for specific
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performance of an agreement of sale, the Appellate Court
allowed the miscellaneous petition and restored the appeal
to file. Being aggrieved by the same, this petition is filed.
3. Learned counsel for the petitioners contended
that the appellate Court without noticing that no reason
was mentioned for condonation of delay, blindly allowed
the application. He submitted that though the affidavit
accompanying the application for condonation of delay was
filed by D.V.Suresh, evidence was adduced by H.Veeranna
as PW.1, who deposed that he was unwell and hence could
not meet his Advocate and that the appeal was dismissed
due to his absence and the absence of his Advocate. He
therefore, contended that the Appellate Court without
noticing that there was no evidence to justify the reasons
for delay and in not prosecuting the appeal diligently,
blindly allowed the application for condonation of delay
and consequently allowed the petition and restored the
appeal. He therefore contends that the Appellate Court
ought not to have allowed the petition.
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4. Per contra, the learned counsel for the
respondents submits that the respondents had suffered a
decree of specific performance and therefore the first
Appellate Court was justified in allowing the miscellaneous
petition so as to afford an opportunity to the respondents
to contest the appeal on merits.
5. I have considered the submission made by the
learned counsel for the petitioners as well as learned
counsel for the respondents.
6. The petition filed by the respondents for
restoration of the appeal disclosed that the counsel for the
respondents had gone to Madhugiri for his personal work
and due to his absence, the Court dismissed the appeal for
non-prosecution. In the affidavit accompanying the
application for condonation of delay, the respondents did
not mention the reason for the delay in filing the
miscellaneous petition, but duplicated the very reason that
was mentioned in the petition for restoration. Therefore,
strictly speaking, there is no reason cited by the
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respondents for condonation of delay for nearly one and
half years in filing the miscellaneous petition. As rightly
contended by the learned counsel for the petitioners, the
Appellate Court did not seriously consider the application
for condonation of delay in filing the miscellaneous
petition. However, having regard to the fact that the
respondents have suffered a decree of specific
performance, by which they were likely to loose valuable
property, an opportunity deserved to be granted to the
respondents to contest the appeal on merits. However this
cannot be without affording compensatory cost to the
petitioners for the long lapse of time from the year 2012,
when the petitioners obtained a decree for specific
performance.
7. In that view of the matter this revision petition
is disposed of upholding the order passed by the appellate
court restoring RA.No.33/2013 but the same shall be
subject to cost of Rs.5,000/- payable by the respondents
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to the petitioners on the next date of hearing before the
Appellate Court.
8. It is made clear that, if the respondents do not
pay the cost of Rs.5,000/- on the next date of hearing, the
Miscellaneous petition filed by the respondents shall stand
dismissed. Consequently, the appeal in RA.No.33/2013
shall also stand dismissed.
Sd/-
JUDGE
KBM
