Karnataka High Court
Mahender Singh vs Pandu on 13 January, 2023
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE Mr. JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION No.6 OF 2016
BETWEEN:
MAHENDER SINGH,
AGED ABOUT 32 YEARS,
S/O.DURG SINGH,
PROPRIETOR OF PARI FASHIONS,
NO.241, 1ST FLOOR, M.S.COMPLEX,
PAPANNA LANE, K.R.SHETTY PET,
BENGALURU - 53.
...PETITIONER
(BY SRI.CHIDAMBARA G.S., ADVOCATE)
AND:
1. PANDU,
AGE NOT KNOWN,
FATHER'S NAME NOT KNOWN,
M/S.MIRACLE GARMENTS & TEXTILES,
NEXT TO CITY CO-OPERATIVE BANK,
DEVARAJ URS MARKET,
HASSAN - 573 201.
2. K.A.ROOPA,
AGE NOT KNOWN,
FATHER'S NAME NOT KNOWN,
M/S.MIRACLE GARMENTS & TEXTILES,
NEXT TO CITY CO-OPERATIVE BANK,
DEVARAJ URS MARKET,
2
HASSAN - 573 201.
...RESPONDENTS
(BY SRI. CHETHAN B., ADVOCATE FOR R-1 & R-2)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 18 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 08.10.2015 PASSED IN
MIS.NO.15010/2015 ON THE FILE OF THE V ADDL. SMALL
CAUSES JUDGE AND XXIV ACMM, AND MEMBER, MACT,
MAYO HALL UNIT, BENGALURU, DISMISSING THE
MISCELLANEIOUS PETITION FILED UNDER ORDER 9 RULE
4 R/W SECTION 151 OF CPC., TO SET ASIDE THE
DISMISSAL ORDER PASSED ON 10.02.2015 IN
S.C.NO.15017/2014 ON THE FILE OF THE JUDGE, COURT
OF SMALL CAUSES, BENGALURU.
THIS CIVIL REVISION PETITION COMING ON FOR
FURTHER DICTATION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner had filed a suit for recovery of Rs.66,445/-
from the respondents towards the supply of sarees. The
defendants though appeared in the said suit did not choose
to file written statement. The suit was posted for
examination-in-chief of the plaintiff. The plaintiff filed an
affidavit in lieu of his examination-in-chief on 30.10.2014
and on 15.11.2014, the defendant filed application to
condone the delay in filing the written statement and
permit him to file written statement. The said application
came to be allowed on payment of cost of Rs.300/-. The
suit was adjourned from time to time from 18.11.2014 and
on 2.12.2014, the written statement filed by the defendant
was rejected as cost of Rs.300/- was not paid to the
plaintiff and the suit was posted for further examination-
in-chief of P.W.1 on 7.1.2015.
2. The plaintiff remained absent on 07.01.2015,
14.01.2015, 24.01.2015 and 10.02.2015. The learned
Trial Court dismissed the suit for want of prosecution
against which the petitioner filed the Miscellaneous petition
under Order 9 Rule 4 r/w Section 151 of CPC and in the
said proceedings, the defendant remained absent and the
learned Trial Court dismissed the miscellaneous petition
stating that though sufficient opportunity was offered the
plaintiff without any sufficient cause did not choose to
tender further examination-in-chief against which the
present petition is filed.
3. Learned counsel appearing for the petitioner
submits that sufficient cause was shown for not tendering
further examination-in-chief. Hence, the original suit
requires to be restores to its original file and permit the
plaintiff to prosecute the suit to secure the ends of justice.
submits that plaintiff without any sufficient cause remained
absent deliberately, and the trial Court taking into account
the same rightly dismissed the suit, and does not warrant
any interference and sought for dismissal of the petition.
5. It is undisputed that substantial evidence of
the plaintiff P.W.1 was tendered and the suit was posted
for further examination-in-chief of the plaintiff.
6. Order 17 Rule 2 of CPC specifies that where,
on any day to which the hearing of the suit is adjourned,
the parties or any of them fail to appear, the Court may
proceed to dispose of the suit in one of the modes
directed in that behalf by Order IX or make such other
order as it thinks fit.
7. Explanation to Rule 2 of Order 17 specifies
that, where the evidence or a substantial portion of the
evidence of any party has already been recorded and such
party fails to appear on any day to which the hearing of
the suit is adjourned, the Court may, in its discretion,
proceed with the case as if such party was present.
8. In the instant case, substantial evidence of
P.W.1 was tendered. The learned Trial Court instead of
invoking the power conferred under explanation to Rule 2
of Order 17 of CPC has dismissed the suit for prosecution
more particularly when the written statement filed by the
defendant was taken as nill.
9. The petitioner states that he has no further
evidence to be tendered and hence the suit may be
restored and the Trial Court may be directed to proceed in
terms of the explanation to Rule 2 Order 7 of CPC.
10. Having regard to the submission of the learned
counsel for the petitioner that he has no further evidence
to be tendered and so as to secure the ends of justice, it
would be appropriate to restore the suit to its original file.
Accordingly, I pass the following:
ORDER
1. C.R.P. is allowed.
2. Impugned order dated 08.10.2015 passed by
the V Addl. Small Causes Judge and XXIV A.C.M.M., Court
of Small Causes, Mayo Hall Unit, Bengaluru (SCCH.20) in
Misc.No.15010/2015 and the order dated 10.02.2015
passed by the very same Court in S.C.No.15107/2014 are
hereby set aside and the suit in S.C.No.15107/2014 is
restored to file.
3. Defendants are permitted to file written
statement on or before next date of hearing and if,
defendants files written statement on or before next date
of hearing, the trial Court to permit defendants to cross-
examine the plaintiff. The trial Court is directed to
conclude the proceedings within three months from the
date of appearance of the parties.
Parties to appear before the trial Court on
07.02.2023 without waiting for further notice from the trial
Court.
Sd/-
JUDGE
GPG
