Karnataka High Court
M K Subramani vs Anjanappa on 17 July, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:24807
MFA No. 2217 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.2217 OF 2023 (CPC)
BETWEEN:
M K SUBRAMANI
S/O.LATE KUPPASWAMY
AGED ABOUT 58 YEARS
R/AT NO.18, BALAJI NAGAR
ITTAMADU, BALAJINAGAR
BANASHANKARI THIRD STAGE
BANGALORE-560085.
...APPELLANT
(BY SRI G BALAKRISHNA SHASTRY, ADVOCATE)
Digitally signed AND:
by SHARANYA T
Location: HIGH
COURT OF ANJANAPPA
KARNATAKA
S/O.LATE CHIKKANANJAPPA
SINCE DEAD BY HIS LRS
1. RATHNAMMA,
W/O LATE ANAJANAPPA
AGED ABOUT 57 YEARS
R/AT NO.29, THYAGARAJANGAR
TATA SILK FARM
BANGALORE-560028
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MFA No. 2217 of 2023
2. RAMACHANDRA
S/O LATE ANJANAPPA
AGED ABOUT 45 YEARS
R/AT NO.29, THYAGARAJANGAR
TATA SILK FARM
BANGALORE-560028
3. SRINIVAS
S/O LATE ANAJANAPPA
AGED ABOUT 35 YEARS
R/AT NO.29, THYAGARAJANGAR
TATA SILK FARM
BANGALORE-560028
4. P SHIVANANADAM
S/O LATE KODANDARAMAIAH
MAJOR
R/AT NO.46, 3RD CROSS
SRINIVASANGAR
BANGALORE-560050
...RESPONDENTS
(BY SRI RAVISHANKAR S, ADVOCATE FOR R1 TO R3;
SRI A SANJAY KUMAR, ADVOCATE FOR R4)
THIS MFA IS FILED U/O.43 RULE 1(d) R/W SEC.151
OF CPC, AGAINST THE ORDER DT.03.01.2023 PASSED IN
MISC. NO.416/2017 ON THE FILE OF THE I ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 2217 of 2023
JUDGMENT
Heard the learned counsel appearing for the
appellant and respondent No.4.
2. The main contention of the counsel for the
appellant is that the advocate who is on record on behalf
of the appellant before the Trial Court has shifted his office
to Yelahanka as well as Doddaballapura and the counsel
also did not appear before the Trial Court and also not
given any intimation to the appellant hence, the appellant
also could not appear before the Trial Court and
ultimately, the suit was decreed since PW1 and PW2 were
not cross-examined before the Trial Court. The counsel
also submits that he has produced the documents at Ex.P1
to P3 in Misc. No.416/2017 to show that the office of the
advocate is shifted to Doddaballapura and the counsel also
submits that the counsel who was on record also filed an
affidavit before the Trial Court in this regard but the Trial
Court failed to consider the same. Hence, it requires
interference.
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MFA No. 2217 of 2023
3. Per contra, the learned counsel appearing for
respondent No.4 submits that respondent No.4 is the
vendor of the appellant herein and he says no objection to
the case of the appellant.
4. Heard the learned counsel for the parties and
also on perusal of the material on record it discloses that
the suit was filed in the year 2013 in O.S.No.4129/2013
and written statement was also filed and issues were also
framed and thereafter the case was posted for plaintiff's
evidence. PW1 was examined but not cross-examined.
PW2 was also examined but not cross-examined and then
the case was posted for defendants' evidence but
defendants have not led any evidence and ultimately,
heard the arguments and passed the judgment on
27.09.2016. The Trial Court also taken note of the
evidence of PW1 and admissions elicited from the mouth
of PW1 and comes to the conclusion that he was in touch
with the counsel though he was shifted his office to
Doddaballapura and established the office at Yelahanka
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MFA No. 2217 of 2023
and in paragraph 11, the Trial Court taken note of the
documents at Ex.P1 to P3 and also taken note of the
admission that he had regular contact with Sri B C
Janardhan, advocate over phone and he also given an
admission that the advocate is having the very same
number till date hence, the Trial Court comes to the
conclusion that the appellant is having the knowledge of
the case as he was in touch with the advocate inspite of
the same, he has not made out any efforts to contest the
matter.
5. Having perused the material on record it
discloses that for a period of one year, both the counsel as
well as the appellant did not choose to appear before the
Trial Court to contest the matter. The suit is for the relief
of declaration and permanent injunction and it is the case
of the defendants that they have purchased the property
in the year 1998 and thereafter constructed the residential
building but the suit is filed almost after 14 years of
purchase of the property. When the relief is sought for
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MFA No. 2217 of 2023
declaration, the appellant also ought to have been diligent
but he was not diligent and he categorically admits that he
was having the phone number of the advocate though he
had shifted the office to Doddaballapura. However, the
matter is not decided on merits and the Trial Court ought
to have consider the matter in lenient view while
dismissing the case in Misc.No.416/2017 and ought to
have impose the cost and given an opportunity to decide
the matter on merit. Hence, it appears that an opportunity
has to be given to the appellant to prove the case on cost
remanding the matter to the Trial Court.
6. In view of the discussions made above, I pass
the following:
ORDER
The appeal is allowed.
The impugned order dated 03.01.2023 passed in
Misc.No.416/2017 is set aside on cost of Rs.25,000/-
payable by the appellant and the matter is remanded to
the Trial Court.
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On payment of cost of Rs.25,000/- only, the original
suit in O.S.No.4129/2013 will be restored.
The respective parties are directed to appear before
the Trial Court on 11.08.2023 without expecting the notice
from the Trial Court. The Trial Court is directed to dispose
of the matter within six months from today since the
matter is of the year 2013 and the respective parties and
their counsel are directed to assist the Trial Court in
disposal of the case within the stipulated time.
Sd/-
JUDGE
SN
