Smt. Prabhavati W/O Late ... vs Sri Mohansa S/O Late Nagusa Chavan
2023 Latest Caselaw 994 Kant

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                                  CRP No. 100009 of 2023


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
       DATED THIS THE 17TH DAY OF JANUARY, 2023
                        BEFORE
          THE HON'BLE MR JUSTICE M.G.S. KAMAL
     CIVIL REVISION PETITION NO. 100009 OF 2023 (-)

BETWEEN:

1.    SMT. PRABHAVATI
      W/O LATE NARAYANASA RAIBAGI
      AGE ABOUT 55 YEARS,
      OCC HOUSEWIFE,
      R/O NEAR RAGHAVENDRA HARD WARE,
      WARD NO 5, GADAG ROAD,
      GAJENDRAGADA 582124,
      GADAG DISTRICT.
2.    MANOHAR
      S/O LATE NARAYANASA RAIBAGI
      AGE ABOUT 40 YEARS, OCC BUSINESS,
      R/O NEAR RAGHAVENDRA HARD WARE,
      WARD NO 5, GADAG ROAD,
      GAJENDRAGADA 582124,
      GADAG DISTRICT.
3.    GOVIND
      S/O LATE NARAYANASA RAIBAGI
      AGE ABOUT 28 YEARS, OCC BUSINESS,
      R/O NEAR RAGHAVENDRA HARD WARE,
      WARD NO 5, GADAG ROAD,
      GAJENDRAGADA 582124,
      GADAG DISTRICT.
4.    SAVITRIBAI
      W/O LATE NARAYANASA RAIBAGI
      AGE ABOUT 54 YEARS,
      R/O NEAR RAGHAVENDRA HARD WARE,
      WARD NO 5, GADAG ROAD,
      GAJENDRAGADA 582124,
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                                   CRP No. 100009 of 2023


   GADAG DISTRICT.

                                           ...PETITIONERS
(BY SRI. SHARAD V MAGADUM, ADV.)
AND:


SRI MOHANSA S/O LATE NAGUSA CHAVAN
AGED ABOUT 63 YEARS,
OCC BUSINESS,
PRESENTLY R/AT WARD NO 22,
NEAR KK CIRCLE,
MEHARWADE BUILDING,
KUSTAGI ROAD,
GAJENDRAGADA 582 124,
GADAG DISTRICT.


                                           ...RESPONDENT


        THIS CRP IS FILED U/S 115(1) OF CPC, PRAYING TO

1906,     1) CALL FOR THE RECORDS OF THE CIVIL MISC NO.

04/2018 FROM THE LOWER COURT. 2) SET ASIDE THE ORDER

DATED 10.10.2022 PASSED IN CIVIL MISC NO.04/2018 BY THE

COURT OF THE PRINCIPAL CIVIL       JUDGE AND JUDICIAL

MAGISTRATE FIRST CLASS AT RON IN THE INTEREST OF

JUSTICE AND EQUITY.


        THIS PETITION COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:
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                                          CRP No. 100009 of 2023


                           ORDER

1. Present petition is filed by the petitioners, being

aggrieved by the order dated 10.10.2022 passed in Civil

Misc.No.4/2018 on the file of the Principal Civil Judge and

JMFC, Ron, in and by which the Trial Court allowed the

petition filed under Order IX Rule 9 of CPC while restoring

the suit in O.S.No.52/2010, set aside the order dated

01.08.2018, by which the said suit in O.S.No.52/2010 was

dismissed for non-prosecution.

2. The respondent herein had filed the said suit in

O.S.No.52/2010 for relief of mandatory injunction

directing the petitioner herein (who is the defendant in the

said suit) to handover possession of the suit property to

him.

3. The case of the petitioner herein is that he is

the agreement holder of the suit schedule property and

that he had filed O.S.No.39/2010 seeking specific

performance of the said agreement and the same is

decreed on 06.12.2014. Being aggrieved by the same, the

respondent herein (who is the defendant in the said suit)

CRP No. 100009 of 2023

has filed regular first appeal in RFA No.100004/2015

before this Court and the same is pending consideration.

The only ground urged in the petition is that in view of the

decree having been passed in O.S.No.39/2010 and the

same being challenged and pending consideration before

this Court, restoration of subsequent suit in

O.S.No.52/2010 by the impugned order is an exercise in

futility therefore, petitioners seeks setting aside of the

impugned order.

4. The order passed by the Trial Court impugned

in this petition is one under Order IX Rule 9 of CPC

restoring the suit in O.S.No.52/2010, which was dismissed

for default. Merely because earlier suit filed by the

petitioner for specific performance has been decreed and

challenge to the same is pending consideration before this

Court, restoration of subsequent suit for possession cannot

be held to be a frivolous and exercise in futility. It may be

that issue involved in the subsequent suit may be directly

or substantially the same in the previous suit. Such

CRP No. 100009 of 2023

situation may have to be dealt with as provided under

CPC. But that is not the ground of challenge in the present

petition. In any event, appeal filed against the judgment

and decree passed in earlier suit in O.S.No.39/2010 is still

pending, which is a continuation of the said suit.

5. No ground is made out with regard to the

irregularity or illegality if any, committed by the Trial

Court while passing the impugned order. The present

petition therefore cannot be considered.

6. In that view of the matter, the petition lacks

merit and the same is dismissed.

7. In view of the dismissal of the petition, pending

IAs. do no survive for consideration.

sd JUDGE

KGK