Karnataka High Court
Sri Nayaz Pasha vs Sri P. Ramakrishna on 24 July, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:25653
MFA No. 3666 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 3666 OF 2020 (CPC)
BETWEEN:
1. SRI NAYAZ PASHA
S/O. LATE ABDUL KHADER
AGED ABOUT 56 YEARS
RESIDING AT NO.16
1ST CROSS
VENKATARANGAPURAM
PALACE GUTTAHALLI
BANGALORE-560 003.
...APPELLANT
(BY SRI ARAVIND BABU J., ADVOCATE)
AND:
Digitally signed
1. SRI P. RAMAKRISHNA
by SHARANYA T S/O. LATE PAPANNA H.S.
Location: HIGH AGED ABOUT 60 YEARS
COURT OF RESIDING AT NO.4/1
KARNATAKA
6TH MAIN ROAD
PALACE GUTTAHALLI
BANGALORE-560 003.
...RESPONDENT
(BY SMT. SUNITHA H. SINGH, ADVOCATE)
THIS MFA IS FILED U/O. 43 RULE 1(d) OF CPC, AGAINST
THE JUDGMENT AND DECREE DT. 06.03.2020 PASSED ON IA
NO.4 IN MISC.NO.625/2018 ON THE FILE OF THE XLIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH NO.44),
-2-
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MFA No. 3666 of 2020
BENGALURU, DISMISSING IA NO.4 FILED U/O.9 RULE 13 OF
CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the respondent.
2. This appeal is filed challenging the order
06.03.2020 passed on I.A.No.4 in Misc.No.625/2018 on the file
of the XLIII Additional City Civil and Sessions Judge, (CCH
No.44), Bengaluru, dismissing I.A.No.4 filed under Order 9,
Rule 13 of CPC.
3. Learned counsel for the appellant would vehemently
contend that no summons were served in O.S.No.5789/2012
which was filed for the relief of specific performance. The
counsel would contend that the appellant disputes the signature
with regard to service of summons but, not sent the document
to the handwriting expert whether the signature belongs to him
or not and with regard to the service of summons, the
appellant only took the defence that signature not belongs to
him. The Trial Court, having considered the material on record,
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MFA No. 3666 of 2020
when the evidence was led with regard to the delay is
concerned and documents were marked, the Trial Court comes
to the conclusion that no satisfactory reasons are given to
condone the delay. The counsel would vehemently contend
that the appellant is ready to pay the cost and an opportunity
may be given to the appellant to lead evidence to enable the
Trial Court to consider the matter on merits.
4. Per contra, learned counsel appearing for the
respondent would submit that the Trial Court while rejecting
the miscellaneous petition, taken note of the fact that petition
was filed on 10.08.2018 and while filing the petition, even the
counsel had not filed the application to condone the delay and
the same was filed on 09.04.2019 and not explained the
reasons for condoning the delay. The Trial Court also taken
note of the fact that even the respondent herein was also
impleaded in the suit filed by the other parties in
O.S.No.7761/2006 and thereafter also filed written statement,
wherein it is specifically stated as to the filing of the suit for the
relief of specific performance in O.S.No.5789/2012 and the
same was considered while dismissing the miscellaneous
petition and no grounds are made out to set aside the order
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MFA No. 3666 of 2020
and the Trial Court has given reasons while dismissing the
miscellaneous petition.
5. Having heard the learned counsel for the appellant
and learned counsel for the respondent, it is not in dispute that
suit was pending from 2012 to 2018 which was filed for the
relief of specific performance. The Trial Court also observed
that, no hand summon was served as contended by the
appellant but, Court notice was served through RPAD and copy
of the endorsement for having received the summons is also
produced before the Court on the direction of this Court.
Admittedly, the same is not sent to handwriting expert even
though the same is disputed. However, taking note of the fact
that suit was decreed and miscellaneous petition is filed in 2018
and subsequently, when the application for condonation was
filed, the Trial Court did not accept the case of the appellant, in
coming to the conclusion that inspite of service of notice, the
appellant did not choose to appear before the Court and contest
the matter. No doubt, the decree is passed placing the
appellant as exparte, when the suit is filed for the relief of
specific performance, the Court has to decide the same on
merits. The records discloses that summons were served in the
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MFA No. 3666 of 2020
year 2013 but, the suit is disposed of in the year 2018, the
appellant files the miscellaneous petition immediately. It is
also the contention of the respondent that in the other suit, this
appellant is also made as party to the proceedings and he was
aware of all the proceedings and only simply denied that he
was not aware of the contents of the suit in O.S.No.7761/2006
and he kept quiet from 2012 to 2018 and filed the
miscellaneous petition in the year 2018.
6. Having considered the said submission and also
considering the fact that the judgment and decree is not on
merits, it is appropriate to set aside the order of the Trial Court
passed in Misc.No.625/2018 dismissing the delay application,
since there is no inordinate delay and the application for
condonation was filed on 09.04.2019 and petition was filed in
2018. Hence, an opportunity is given to the appellant to
contest the matter on merits on payment of cost.
7. Hence, I pass the following:
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MFA No. 3666 of 2020
ORDER
(i) The appeal is allowed. The impugned order
dated 06.03.2020 passed on I.A.No.4 in
Misc.No.625/2018 and judgment and decree
are hereby set aside on payment of cost of
Rs.25,000/- payable by the appellant to the
respondent and payment of cost is the
condition precedent to restore the suit in
O.S.No.5789/2012 to consider the same on
merits.
(ii) The appellant herein is directed to file the
written statement within a period one month
from the date of restoration of the suit.
(iii) The parties are directed to appear before the
Trial Court on 24.08.2023 and the Trial Court
is directed to dispose of the suit within a
period of six months from the said date
(iv) Both the counsels and their respective parties
are directed to assist the Trial Court in
disposal of the case within a period of six
months from 24.08.2023, since the suit is of
the year 2012.
Sd/-
JUDGE
ST
