Karnataka High Court
Suresh vs Papaiah on 11 July, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:23926
MFA No. 1725 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 1725 OF 2023 (CPC)
BETWEEN:
1. SURESH
S/O. PAPAIAH,
AGED ABOUT 14 YEARS, MINOR,
R/O. BORAPPANAHATTY VILLAGE,
VEERADIMMANNA HALLY,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT
REPRESENTED BY HIS NATURAL
GUARDIAN MOTHER
MANJAMMA @ PAPAMMA,
W/O. PAPAIAH,
AGED ABOUT 35 YEARS,
2ND APPELLANT
R/O. BORAPPANAHATTY VILLAGE,
Digitally signed
VEERADIMMANNA HALLY,
by SHARANYA T CHALLAKERE TALUK,
Location: HIGH CHITRADURGA DISTRICT-577522.
COURT OF
KARNATAKA
2. MANJAMMA @ PAPAMMA
W/O. PAPAIAH,
AGED ABOUT 35 YEARS,
2ND APPELLANT,
R/O. BORAPPANAHATTY VILLAGE,
VEERADIMMANNA HALLY,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577522
...APPELLANTS
(BY SRI P. DHANANJAYA, ADVOCATE)
-2-
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MFA No. 1725 of 2023
AND:
1. PAPAIAH
S/O. CHINNAIAH,
AGED ABOUT 40 YEARS,
OCCUPATION: AGRICULTURE,
R/O. NALAJAMMANAHATTY,
KURUDIHALLY POST,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577522
...RESPONDENT
(BY SRI R. SHASHIDHARA, ADVOCATE)
THIS MFA IS FILED U/O.43 RULE 1(c) OF CPC, AGAINST
THE ORDER DT.12.12.2022 PASSED IN CIVIL MISC.NO.
372/2018 ON THE FILE OF THE 2ND ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE
PETITION FILED U/O.9, RULE 9 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellants and learned counsel for the
respondent.
2. This appeal is filed challenging the order dated
12.12.2022 passed in Civil Misc.No.372/2018 on the file of the
2nd Additional District and Sessions Judge, Chitradurga,
dismissing the petition filed under Order 9, Rule 9 of C.P.C., in
coming to the conclusion that the P.Ws.1 and 2 have not shown
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MFA No. 1725 of 2023
any sufficient cause for restoration of Misc.No.211/2017.
Hence, the present appeal is filed before this Court.
3. Learned counsel for the appellants would contend
that when an appeal is filed in R.A.No.13/2015 in the year
2015, the same was dismissed in 2017. Thereafter, Misc.
No.211/2017 was filed for restoration of the regular appeal and
the same was also dismissed for non-prosecution. Hence, Civil
Misc. No.372/2018 is filed and the same is also dismissed and
the Trial Court committed an error in coming to the conclusion
that no sufficient cause is shown while dismissing the petition
and erroneously taken note of the order sheet pertaining to
R.A.No.13/2015, wherein also in Para No.10 observed that
when the matter was listed several times, the counsel has not
argued the matter and even though the miscellaneous is listed
for consideration from 12.06.2015 till 20.08.2018, there was no
representation. Hence, the appellants have not made out any
cause. The very observation of the Trial Court is erroneous
and the Trial Court ought to have given an opportunity and
failed to accept the sufficient cause shown by the appellants
that the matter was kept pending for negotiation in respect of
the suit properties before the relatives and panchayathdars in
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MFA No. 1725 of 2023
the village and the very reason that panchayath was held is not
disputed and inspite of it, dismissed the same.
4. Per contra, learned counsel for the respondent
would submit that the Trial Court, while dismissing the Civil
Misc. No.372/2018, in detail discussed in Para Nos.9, 10 and
11, taken note of the fact that several adjournments were
given in Miscellaneous as well as in R.A. and no grounds are
made out to set aside the order and no sufficient cause is
shown by the appellants herein to set aside the order and
restore the miscellaneous. The counsel also would submit that
the present order is also passed on miscellaneous upon
miscellaneous and miscellaneous and R.A. are dismissed for
non-prosecution and there are no grounds to take a lenient
view to set aside the order.
5. Having heard the respective counsels and also on
perusal of the material available on record, it is not in dispute
that an appeal was filed in R.A.No.13/2015 against the
judgment and decree passed in O.S.No.2/2014. On perusal of
the order sheet, it is seen that, several adjournments were
taken from 2015 to 2018 and not argued the matter and also in
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Para No.10 of the order, the same is also taken note by the
Trial Court that the order sheet clearly discloses that since
20.08.2018, neither the counsel nor the appellants appeared
before the Court to make any progress in the details and
different dates on which the case was adjourned from 2015 to
2018 is stated. Apart from that, the Trial Court has also take
note of evidence of P.W.2, though he claims that there was
negotiation between the petitioners and the respondent, but did
not appear before the Court and made the submission before
the Court that the matter is under negotiation and no sufficient
cause is shown and the same is also discussed in Para No.12 of
the order. The Trial Court also taken note of the very
contention of P.W.1 in Para No.9, wherein he has categorically
admitted that neither herself nor her advocate regularly
appeared before the Court. Admittedly, Misc.No.211/2017 is
also dismissed on account of non-appearance. From
24.02.2018, till the dismissal of the miscellaneous on
20.08.2018 also, there was no representation and order sheet
also reveals that the appellants not appeared and participated
in the proceedings of the Trial Court. When such being the
case, when well reasoned order has been passed by the Trial
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Court and the appellants were also negligent throughout in
pursuing the matter in regular appeal as well as
Misc.No.211/2017 which were dismissed for non-prosecution.
When the well reasoned order has been passed while
dismissing the appeal, I do not find any reason to set aside the
order, unless sufficient cause is shown for non-appearance
before the Trial Court in Misc.No.211/2017 and so also the very
records reveal that the appellants were not pursuing the matter
diligently. When such being the case, I am of the opinion that
no sufficient cause is made out by the learned counsel for the
appellants to set aside the order.
6. The learned counsel for the appellants, in support of
his argument, relied upon the judgment of the Apex Court in
ESHA BHATTACHARJEE VS. MANAGING COMMITTEE OF
RAGHUNATHPUR NAFAR ACADEMY AND OTHERS reported
in (2013) 12 SCC 649 and contend that litigant should not
suffer for the conduct of the advocate and the said contention
also cannot be accepted since, even the counsel was negligent
to appear before the First Appellate Court and he not only failed
to appear before the First Appellate Court but, also in
miscellaneous proceedings and when the same was dismissed,
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one more miscellaneous petition is filed on the ground of
dismissal and in the miscellaneous petition also, he did not
appear before the Court, he cannot shirk his responsibility
contending that litigant should not suffer for negligence of the
advocate and it is the duty of the appellants also to pursue the
matter and the appellants have also not shown any interest in
pursuing the matter. Hence, the very judgment is not
applicable to the facts of the case on hand. Therefore, I do not
find any merit in the appeal.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
ST
