Sri C Premraj vs Sri M D Venkatesh
2023 Latest Caselaw 3131 Kant

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                                                        NC: 2023:KHC:19988
                                                           CRP No. 299 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 12TH DAY OF JUNE, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         CIVIL REVISION PETITION NO. 299 OF 2022 (IO)

                   BETWEEN:

                   1.    SRI C. PREMRAJ
                         S/O LATE CHAMPALAL
                         AGED 78 YEARS
                         R/AT 1ST CROSS ROAD
                         ROBERTSONPET
                         K.G.F. KOLAR DISTRICT-563113

                                                                 ...PETITIONER

                            (BY SRI. M.B.CHANDRACHOODA, ADVOCATE)
                   AND:

                   1.    SRI M.D. VENKATESH
                         S/O DODDACHANGAPPA
                         AGED 62 YEARS
Digitally signed
by SHARANYA T            R/AT MAHADEVAPURA
Location: HIGH           KYASAMBALLI HOBLI
COURT OF                 BANGARPET TALUK
KARNATAKA
                         KOLAT DISTRICT-563114
                                                               ...RESPONDENT
                                  (BY SMT. NALINA K., ADVOCATE)

                        THIS CRP IS FILED UNDER SECTION 115 OF CPC,
                   AGAINST THE ORDER DATED 12.01.2022 PASSED IN MISC.
                   NO.7/2018 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND
                   JMFC, KGF, ALLOWING MISC. NO.7/2018 FILED UNDER ORDER
                   IX RULE 9 OF CPC, RESTORING MISC. NO.9/2016 ON THE FILE
                   OF THE I ADDL. CIVIL JUDGE & JMFC, KGF.
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                                      NC: 2023:KHC:19988
                                           CRP No. 299 of 2022




     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                              ORDER

This matter is listed for admission. Heard the learned

counsel appearing for the petitioner and the learned counsel

appearing for the respondent.

2. This CRP is filed under Section 115 of CPC.,

challenging the order dated 12.01.2022 passed in

Misc.No.7/2018 on the file of I Additional Civil Judge and JMFC.,

at KGF, allowing the said Misc. Petition filed under Order IX

Rule 9 read with Section 151 of CPC, restoring Misc.No.9/2016

filed under Order IX Rule 13 of CPC on the file of I Additional

Civil Judge & JMFC., KGF.

3. The learned counsel appearing for the petitioner

would vehemently contend that the decree was passed in the

year 2016 and the witness was examined on 19.04.2016.

Though the respondent had filed the written statement not

cross examined the witness and not participated in the

proceedings. The decree was passed in the year 2016 i.e., after

two years. Thereafter, Misc.No.9/2016 was filed under Order

IX Rule 13 of CPC for setting aside the judgment and decree,

NC: 2023:KHC:19988 CRP No. 299 of 2022

the same came to be dismissed in the year 2018 and the

petition was also filed for restoration. Learned counsel would

submit that though the petition was filed under Order IX Rule

13 of CPC, no stay was obtained in respect of the judgment and

decree and also the Sale Deed was executed in the year 2018.

In the Execution Petition, he was participated through the

Counsel and the same was not resisted and the possession was

also delivered in 2019 itself. The Trial Court has committed an

error in restoring Misc.No.9/2016, and only the reason assigned

by the Trial Court is that he was suffering from viral fever from

14.01.2018 to 18.01.2018 and an opportunity has to be given

and imposed cost of Rs.1,500/-. The very approach of the Trial

Court is erroneous and not considered the material on record in

a proper perspective in spite of the suit summons was served

on him and represented through the Counsel and filed the

written statement, not contested the matter and even in the

Miscellaneous proceedings also he was not diligent in

prosecuting the matter. In the Execution petition also, notice

was served and represented through the counsel. He slept

over for a period of almost 7 years after filing of the suit and no

grounds are made out.

NC: 2023:KHC:19988 CRP No. 299 of 2022

4. Per contra, the learned counsel appearing for the

respondent would submit that non appearance of the

respondent before the Trial Court is on account of ill-health.

The Trial Court has rightly taken note of the Certificate, which

is produced as Ex.P1, which clearly discloses that he was

suffering from viral fever. Hence, he could not appear before

the Trial Court. The learned counsel also would submit that the

sale price is only Rs.1,25,000/- and the measurement of the

site is 25 x 70 feet situated at Bethamangala Village, Bangarpet

Taluk and only the Miscellaneous Petition is restored and the

same has to be considered on merits.

5. Having heard the respective counsel and on perusal

of the material available on record, it is clear that the suit was

filed in the year 2014 and also not in dispute that the written

statement was filed and the witness was examined on

19.04.2016 and ultimately the suit was decreed i.e., on

17.02.2016 and not participated in the original suit. It is also

not in dispute that the petition was filed and the same is

numbered as Misc.No.9/2016 invoking Order IX Rule 13 of CPC,

the same came to be dismissed on 16.01.2018 after two years.

He is not diligent in conducting the miscellaneous proceedings

NC: 2023:KHC:19988 CRP No. 299 of 2022

initiated under Order IX Rule 13 of CPC. The execution petition

was also filed immediately after the decree and in the same

matter the notice was served on him. In spite of the notice was

served on him, he did not contest the matter and ultimately the

Sale Deed was executed in the year 2018 itself and thereafter

the possession was delivered in the year 2019 itself. The Trial

Court failed to take note of all these materials while restoring

the petition only on the ground that he was suffering from viral

fever from 14.01.2018 to 18.01.2018, restored the petition and

failed to take note of the very conduct of the respondent in not

contesting the matter in the original suit and also the

Miscellaneous petition was filed invoking Order IX Rule 13 of

CPC and the same was also dismissed. In spite of service of

notice in the Executive Petition also, no stay was obtained and

allowed the decree holder to take the Sale Deed and the

possession was also delivered. When such being the case, the

very respondent is not diligent in pursuing the matter and not

made out any sufficient cause. Hence, the order passed by the

Trial Court requires to be set aside and the Trial Court failed to

apply its judicious mind with regard to the negligence on the

part of the respondent and the respondent is also not diligent in

NC: 2023:KHC:19988 CRP No. 299 of 2022

contesting the matter and even when the petition was filed for

setting aside the judgment and decree, the same was also

dismissed. Hence, I am of the opinion that the Trial Court has

committed an error in restoring the miscellaneous petition to

restore the other miscellaneous petition.

6. In view of the discussions made above, I pass the

following:

ORDER

(i) The petition is allowed.

(ii) The impugned order dated 12.01.2022 passed in Misc.No.7/2018 on the file of I Additional Civil Judge and JMFC., at KGF, is hereby set aside.

In view of allowing the petition, IA-2/2022 for stay does

not survive for consideration, the same stands disposed of.

Sd/-

JUDGE

CP