Karnataka High Court
Smt Pramila vs M/S Alagiri Polypack Pvt Ltd on 27 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:22207
MFA No. 517 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 517 OF 2017 (CPC)
BETWEEN:
1. SMT. PRAMILA
AGED ABOUT 64 YEARS
W/O. P. ANAND RAJ
2. SRI. P. ANAND RAJ
AGED ABOUT 69 YEARS
S/O. LATE C. PAPANNA
THE APPELLANTS 1 & 2
R/AT NO.421/J, 1ST STAGE
INDIRANAGAR
BENGALURU - 560 038
PRESENTLY,
RESIDING AT NO.3535 2ND CROSS,
Digitally signed
by SHARANYA T 13TH 'H' MAIN, HAL II STAGE,
Location: HIGH BENGALURU -560 008.
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI K.K.VASANTH, ADVOCATE)
AND:
1. M/S. ALAGIRI POLYPACK PVT. LTD.,
A COMPANY REGISTERED UNDER
INDIAN COMPANIES ACT, 1956
NO.225, 12TH CROSS STREET
WILSON GARDEN
BENGALURU - 560 027
REPRESENTED BY ITS
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NC: 2023:KHC:22207
MFA No. 517 of 2017
MANAGING DIRECTOR
S. VENKATACHALAPATHI SHETTY
...RESPONDENT
(VIDE ORDER DATED 23.05.2023,
SERVICE OF NOTICE TO RESPONDENT
IS LELD SUFFICIENT)
THIS MFA IS FILED U/O.43 RULE 1(d) OF CPC, AGAINST
THE ORDER DATED: 30.11.2016 PASSED ON MIS.628/2011 ON
THE FILE OF THE 8TH ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, BENGALURU, REJECTING THE PETITION FILED U/O.9
RULE 13 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matte is listed for admission and I have heard the
learned counsel for the appellants.
2. This appeal is filed challenging the order dated
30.11.2016 passed on Mis.628/2011 on the file of the VIII
Additional City Civil and Sessions Judge (CCH-15), Bengaluru,
rejecting the petition filed under Order 9, Rule 13 of C.P.C.
3. The learned counsel for the appellants would
vehemently contend that these appellants are arrayed as
defendant Nos.6 and 7 before the Trial Court in
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MFA No. 517 of 2017
O.S.No.2052/1993, wherein these appellants have been placed
exparte and hence, they have filed an application before the
Trial Court to set aside the exparte order by filing necessary
application under Order 9, Rule 13 of C.P.C. and no order has
been passed on the said application. In the meanwhile, an
application is also filed under Order 6, Rule 17 of C.P.C. and the
same was dismissed and thereafter, one more application for
restoration of the said application was filed and no opportunity
was given to these appellants and ultimately, the suit was
decreed. It is also contended that the same was challenged
before this Court by filing R.F.A.No.2558/2006 and the same
was disposed of on 11.08.2011, wherein liberty was given to
the appellants herein to file an application under Order 9, Rule
13 of C.P.C. and accordingly, the present application is filed
before the Trial Court. The Trial Court dismissed the same on
the ground that the defendants have admitted that the counsel
on record in the original suit has not retired from the case and
also specifically admitted that they have not at all insisted the
Court to consider the application filed Order 9, Rule 7 of C.P.C.
and these admissions found in the cross-examination of P.W.1
not helpful to the petitioners to allow the application filed under
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MFA No. 517 of 2017
Order 9, Rule 13 of C.P.C. Hence, the Trial Court comes to the
conclusion that the petitioners have not made out any ground
to allow the petition filed under Order 9, Rule 13 of C.P.C.
cannot be invoked and therefore, rejected the same. Hence,
the present appeal is filed before this Court.
4. Learned counsel for the appellants would
vehemently contend that this Court in R.F.A.No.2558/2006
though formed an opinion that no opportunity was given and
also observed that no order has been passed on the application
filed by the defendant Nos.6 and 7, who are the appellants
herein under Order 9, Rule 7 of C.P.C. and made an
observation that the Court below ought to have passed order
on the application filed by the defendant Nos.6 and 7 within a
reasonable period. However, the Court below erred in not
passing any order on the application filed by the appellants
praying for setting aside the exparte order and the same has
created confusion and also further observed that the records of
the Court below reveal that defendant Nos.6 and 7 were served
with the application filed by the plaintiff for recalling the order
of dismissal of application for amendment for non-prosecution.
No notice was served on defendant Nos.6 and 7 with regard to
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MFA No. 517 of 2017
I.A.No.12 filed by the plaintiff under Order 6, Rule 7 of C.P.C.
i.e., second application for amendment of plaint. This Court
also observed that these facts clearly go to show that
defendant Nos.6 and 7 were not heard in the matter as
required in law and formed an opinion that grounds are made
out to set aside the judgment and decree but, comes to the
conclusion that the Court should not enter into the merits in
view of the fact that the appellants herein will have to approach
the Court below by filing an application under Order 9, Rule 13
of C.P.C. praying for setting aside the exparte decree and
liberty was given to file the same. However, in the operative
portion, it is observed that the Court below shall decide the said
application keeping in mind the observations made above, if
such an application is made by the appellants within six weeks
from that day and the Court below shall not raise the question
of delay.
5. The Trial Court having considered the grounds of
appeal, also taken note of the judgment of this Court in
R.F.A.No.2558/2006 which is marked as Ex.P3 and inspite of
the same, the Trial Court has not taken into consideration the
observations made in the judgment passed by this Court in
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MFA No. 517 of 2017
R.F.A.No.2558/2006 though the same is marked and instead
considered the matter on merits. The very judgment of the
Division Bench of this Court is very clear that an application is
filed without bringing it to the notice of the appellants herein
and it is also specific that no order has been passed on the
application filed under Order 9, Rule 7 of C.P.C. and also the
application filed under Order 6, Rule 7 of C.P.C. i.e., the second
application for amendment of the plaint was not served and
formed the opinion that the judgment and decree is liable to be
set aside and however liberty was given to the appellants to file
an application under Order 9, Rule 13 of C.P.C. Further, in the
operative portion, given a direction to the Trial Court that the
Trial Court shall decide the application keeping in mind the
observations made by this Court in R.F.A.No.2558/2006 and
the said observation is not considered by the Trial Court while
passing an order within the time stipulated to dispose of the
same i.e., within six weeks from the date of the said order and
took time from 2011 to 2016 and ultimately, dismissed the
same. Hence, the order passed by the Trial Court requires to
be set aside and the suit in O.S.No.2052/1993 is ordered to be
restored on file for consideration of the same on merits.
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MFA No. 517 of 2017
Accordingly, the appeal is disposed of.
Sd/-
JUDGE
ST
