Karnataka High Court
Sri R Vasu vs Sri Muqhtiar Pasha on 20 December, 2023
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NC: 2023:KHC:46681
RSA No. 146 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 146 OF 2022 (SP)
BETWEEN:
1. SRI R VASU
S/O LATE B RAJU
AGED ABOUT 65 YEARS
2. SRI R RAVIKUMAR
S/O LATE B RAJU
AGED ABOUT 52 YEARS
BOTH ARE R/AT NO.18, 1ST CROSS
1ST MAIN, OM SHAKTHI TEMPLE STREET
UDAYANAGARA, DOORAVANINAGARA POST
BENGALURU-560 016
...APPELLANTS
Digitally
signed by (BY SRI.ABHINAY.Y.T, ADVOCATE FOR SRI. KARTHIK V,
CHAITHRA A ADVOCATE)
Location: AND:
HIGH
COURT OF 1. SRI MUQHTIAR PASHA
KARNATAKA S/O LATE BASHA SAHEB
AGED ABOUT 70 YEARS
2. SRI MUDASSIR PASHA
S/O MUQHTIAR PASHA
AGED ABOUT 41 YEARS
3. SRI MUZAMMIL PASHA
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RSA No. 146 of 2022
S/O MUQHTIAR PASHA
AGED ABOUT 40 YEARS
4. SRI MUZAKKIR PASHA
S/O MUQHTIAR PASHA
AGED ABOUT 39 YEARS
5. SRI HASSENA BEGUM
D/O MUQHTIAR PASHA
AGED ABOUT 43 YEARS
ALL ARE R/AT KATTIGENAHALLI VILLAGE
JADIGENAHALLI HOBLI
HOSAKOTE TALUK-562 114
BENGALURU RURAL DISTRICT
...RESPONDENTS
(BY SRI. NANJA REDDY P N, ADVOCATE FOR R2 TO 5;
V/O DTD: 15/12/2023, R2 TO 5 ARE TREATED AS LRs OF R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE ORDER DATED 17.12.2021 PASSED IN
RA.NO.192/2017 ON THE FILE OF THE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, AT BENGALURU, DISMISSING THE APPEAL AND
FILED AGAINST THE JUDGMENT AND DECREE DATED
28.10.2017 PASSED IN OS.NO.1603/2007 ON THE FILE OF THE
II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 146 of 2022
JUDGMENT
The captioned second appeal is filed assailing the
interlocutory order passed by the appellate Court on
17.12.2021 in R.A.No.192/2017 wherein the appellants'
regular appeal is dismissed for non-prosecution. The said
interlocutory order is challenged by filing the second
appeal under Section 100 of CPC.
2. The appellants have an efficacious remedy of
seeking restoration of appeal by taking recourse to Rule
19 of Order LXI of CPC. This Court also has to bear in
mind that the remedy of first appeal is a statutory right
and the appellate Court being the final fact finding
authority has to reassess the entire material on record
independently. The appeal is dismissed for non-
prosecution on the ground that the counsel on record
failed to appear on the date of hearing.
3. The learned counsel appearing for appellants
submits that earlier counsel on record retired from the
case and the matter was adjourned on 4.12.2021. Though
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appellants had engaged a counsel, there was no sitting as
the Presiding Officer was on leave. On the next date,
before the new counsel could make a submission, the
appeal was dismissed for non-prosecution.
4. If these significant details are taken into
consideration, on account of non-appearance of the
counsel on record who was engaged, the litigants cannot
be punished, more particularly, when the dispute is in
respect of immovable property and the appeal is filed
under Section 96 of CPC, which is a statutory appeal.
However, this Court cannot examine the order under
challenge. Therefore, I am of the view that though no
indulgence is warranted at the hands of this Court, liberty
is reserved to the appellants to file an appropriate
application by invoking Rule 19 of Order LXI of CPC and
seek appropriate orders at the hands of the appellate
Court. It is borne out from the records that this second
appeal is filed within thirty days of passing of the
impugned order. Therefore, I am of the view that this is a
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fit case to extend the benefit of Section 14 of the
Limitation Act and if an application is filed within four
weeks from the date of receipt of copy of this order, the
appellate Court bearing in mind the valuable rights of the
parties shall decide the application and pass appropriate
orders within three months' from the date of receipt of
notice by respondents.
5. The learned counsel for the appellants seeks
leave to withdraw the appeal with liberty to file an
application under Order LXI Rule 19 of CPC. By granting
the liberty, the appeal is dismissed as withdrawn.
Since the appeal is dismissed as withdrawn reserving
liberty, Registry to return the Court fee in accordance with
law.
Sd/-
JUDGE
ALB
