Karnataka High Court
Sri. Beereshwara Education Trust ... vs The Secretary on 8 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:44609
MFA No. 6053 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 6053 OF 2017 (CPC)
BETWEEN:
SRI. BEERESHWARA EDUCATION TRUST (REGD)
NO.126, AGASANALA, INDI TALUK
BIJAPUR DISTRICT
REP. BY ITS MANAGER/ADMINISTRATOR
SRI. S. V. SINGRE GOWDA
S/O. LATE S.D. VASANTH GOWDA
AGED ABOUT 70 YEARS
R/AT SHAKAMBARI NILAYA
NO.412, 5TH CROSS
PILLEKAMMA TEMPLE ROAD
AMRUTHAHALLI, SAHAKARA NAGAR POST
BENGALURU-560 092.
...APPELLANT
(BY SRI. DR NANDA KISHORE., ADVOCATE)
Digitally signed
by AND:
DHANALAKSHMI
MURTHY
Location: High 1. THE SECRETARY
Court of
Karnataka REVENUE DEPARTMENT
(REGISTRATION & STAMP)
GOVERNMENT OF KARNATAKA
MULTI-STOREYED BUILDING
BENGALURU-560 001.
2. COMMISSIONER REGISTRATION
AND STAMP DEPARTMENT
GOVERNMENT OF KARNATAKA
KANDAYA BHAVAN
K.G. ROAD, BENGALURU-560 001.
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MFA No. 6053 of 2017
3. DISTRICT REGISTRAR
JAYANAGAR REGISTRATION DISTRICT
NO.2722, 2ND FLOOR, 12TH MAIN ROAD
4TH BLOCK, JAYANAGAR
BENGALURU-560 011.
4. SRI. REVOO BHAGANU CHAVAN
AGED ABOUT 36 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
5. SRI. RAMACHANDRA B CHAVAN
AGED ABOUT 40 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
6. SRI. ARJUN BHAGANU CHAVAN
AGED ABOUT 42 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
7. SMT. D. D. RATHOD
AGED ABOUT 43 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
8. SRI. KRISHNA D CHAVAN
AGED ABOUT 37 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
9. SRI. S. S. PAVAR
AGED ABOUT 37 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
10. SRI. GULAB CHANDU JADHAV
AGED ABOUT 32 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
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MFA No. 6053 of 2017
11. SRI. K. M. CHAVAN
AGED ABOUT 60 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
12. SRI. GOPAL R RATHOD
AGED ABOUT 45 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
13. SRI. MOHAN ROOPSINGH CHAVAN
AGED ABOUT 35 YEARS
MINCHANALA, L.T. POST
BIJAPUR-586 108.
...RESPONDENTS
(BY SMT.ADITHI, AGA FOR R1 TO R3:
SRI. M V MARUTHI, ADVOCATE FOR R6 TO R13 (ABSENT)
NOTICE TO R4 & R5 ARE SERVED
AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 104 R/W ORDER 43
RULE 1(c) OF THE CPC 1908, AGAINST THE ORDER DATED
27.02.2016 PASSED IN M.C.NO. 505/2014 ON THE FILE OF THE
IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BANGALORE (CCH-5), DISMISSING THE PETITION FILED
UNDER ORDER 9 RULE 9 OF CPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Order XLIII Rule 1(c) of CPC is
filed by the plaintiff challenging the order dated
27.2.2016 passed by IX Addl. City Civil and Sessions
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Judge, Bangalore in Misc.Case.No.505/2014 filed under
Order 9 Rule 9 of CPC, whereby the Trial Court has
dismissed the dismissed the miscellaneous petition.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court in
original suit.
3. The plaintiff filed the suit i.e., O.S.No.4472/2013
for declaration and other reliefs. The said suit came to
be dismissed for non-prosecution on 19.6.2014. Being
aggrieved by the same, the plaintiff filed
Misc.Case.No.505/2014 under Order 9 Rule 9 of CPC
seeking for restoration of the said suit. After hearing the
parties, the learned Judge of the Trial Court by
impugned order dated 27.2.2016 dismissed
miscellaneous petition. Being aggrieved by the same,
the plaintiff has filed this appeal.
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4. The learned counsel for the appellant-plaintiff has
contended that when the suit was posted before the trial
Court on 19.6.2014, since the plaintiff was attending the
case in W.P.No.21547/2014 at High Court, Kalaburagi
Bench, he could not appear before the Trial Court on the
said date. The Trial Court by order dated 19.6.2014 has
dismissed the suit for non-prosecution. Being aggrieved
by the same, the plaintiff filed Misc.Case.No.505/2014
before the IX Addl. City Civil and Sessions Judge,
Bangalore. He further contended that the learned Judge
of the Trial Court while deciding the miscellaneous case
has also decided on the maintainability of the suit. The
same is beyond the jurisdiction of the trial court to
decide on the maintainability of the suit in a
miscellaneous case and the same is contrary to the
provisions of Order 9 Rule 9 of CPC. Hence, he sought
for allowing the appeal.
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5. Learned Additional Government Advocate
appearing for respondent Nos.1 to 3 submits that they
are only formal parties.
6. None appears for the respondent Nos.6 to 13.
7. Heard the learned counsel for the appellant and
learned AGA and perused the impugned order.
8. It is not in dispute that the plaintiff has filed suit
O.S.No.4472/2013 for relief of declaration to declare
that dissolution of Sri.Beereswara Education Society,
registration No.416/1991-92 on 29.4.2009, is legal and
valid as per the provisions of Section 22 of the Societies
Registration Act. After service of summons on
defendants, the matter was posted on 19.6.2014 for
consideration of I.A. On the said date, the plaintiff was
not present before the Trial Court and hence the suit
was dismissed for non-prosecution.
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9. The specific case of the plaintiff is that he himself
was prosecuting the suit before the Trial Court as party-
in-person. However, on 19.6.2014, the plaintiff had
appeared before the High Court, Kalaburagi Bench to
attend his case in W.P.No.21547/2014 and hence, he
could not appear before the Trial Court in the suit.
However, the Trial Court by order dated 19.6.2014 has
dismissed the suit for non-prosecution. Being aggrieved
by the same, he filed Misc.Case.No.505/2014 under
Order 9 Rule 9 of CPC seeking for restoration of the suit.
The Trial Court instead of considering the miscellaneous
petition, has gone into the merits of the case. The same
is contrary to the provisions of Order 9 Rule 9 of CPC
and dismissed the miscellaneous petition. Hence, the
impugned order is unsustainable.
10. Under the circumstances and in the interest of
justice and in order to give one more opportunity, this
Court is of the opinion that the impugned order is liable
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to be set aside and suit has to be restored to file. Hence,
the following order is passed:
ORDER
a) The appeal is allowed.
b) The impugned order dated 27.2.2016 passed by
the IX Addl. City Civil and Sessions Judge, Bangalore in
Misc.Case.No.505/2014, is hereby set aside.
Misc.Case.No.505/2014 is allowed.
c) The order dated 19.6.2014 passed by the IX Addl.
City Civil and Sessions Judge, Bangalore in
O.S.No.4472/2013 is set aside. The suit is restored to
file.
d) The Trial Court is directed to reconsider the matter
afresh including the maintainability of suit, after giving
opportunities to both the parties.
Sd/-
JUDGE
DM
