Karnataka High Court
Smt. Laxmi @ Laxmidevi W/O Tippanna vs Manjula W/O Vijaykumar And Anr on 5 February, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC-K:1278
WP No. 201747 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.201747 OF 2022 (GM-CPC)
BETWEEN:
SMT. LAXMI @ LAXMIDEVI,
W/O TIPPANNA,
AGE: 63 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O. GANDHI NAGAR, BELLARY DISTRICT,
ANDROON QUILLA, RAICHUR.
...PETITIONER
(BY SRI.SHARANAKUMAR BASAVARAJ HANGARKI., ADVOCATE)
AND:
1. MANJULA W/O VIJAYKUMAR,
AGED ABOUT: 42 YEARS,
OCC: HOUSEHOLD, R/O. TEKKALKOTE,
TQ: SIRAGUPPA,
Digitally signed by DIST: BELLARY-583 101.
THEJASKUMAR N
Location: High
Court Of 2. AMARESH S/O HANMANTHAPPA,
Karnataka
AGED ABOUT: 45 YEARS,
OCC: AGRICULTURE,
R/O. JAWALGERA, TQ: SINDHANUR,
DIST: RAICHUR-584 101.
...RESPONDENTS
(R1 AND R2 - SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN
RELIEFS.
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NC: 2024:KHC-K:1278
WP No. 201747 of 2022
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Sri.S.B.Hangarki., learned counsel for the petitioner has
appeared in person.
2. Emergent notice to respondents was ordered on
18.07.2022. A perusal of the office note depicts that the
respondents are served and unrepresented. They have neither
engaged the services of an advocate or conducted the case as
party in person. Hence, this Court proceeds to pass orders on
the merits of the case.
3. The captioned Writ Petition is filed seeking a Writ of
Certiorari to quash the order dated:14.02.2022 passed by the
Prl. Civil Judge and JMFC, Sindhanur, in Civil Misc.No.14/2017
vide Annexure-F and consequently restore the Civil
Misc.No.14/2017 by allowing the application.
4. Learned counsel for the petitioner has urged several
contentions. Heard, the contentions urged on behalf of the
petitioner and perused the Writ papers with utmost care.
5. The point that requires consideration is whether the
Trial Court is justified in rejecting the application.
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6. Suffice it to note that respondents Manjula and
Amaresh being the plaintiffs, filed a suit against the petitioner
who is the defendant on the file of Prl. Civil Judge, Sindhanur in
O.S.No.283/2013. The suit was decreed vide Judgment and
Decree dated:02.04.2014 placing the defendant as exparte.
Aggrieved by the exparte Judgment and Decree, the
defendant Laxmi preferred a Civil Miscellaneous Petition under
Order 9 Rule 13 R/w Section 151 of CPC to set-aside the
exparte Decree in C.Misc.No.14/2017. The Civil Miscellaneous
Petition came to be dismissed for default on 17.08.2021.
Hence, the defendant moved an application under Order 9 Rule
4 of CPC for restoration of C.Misc.No.14/2017. The plaintiffs did
not file objections. It appears from the impugned order that
counsel who represented the petitioner also did not address
argument despite giving sufficient time. The Court proceeded in
the matter and rejected the application vide order
dated:14.02.2022.
7. The certified copy of the order dated:14.02.2022 is
furnished along with the Writ Petition and the same is marked
as Annexure-F. A perusal of the same reveals that the Presiding
Officer has rejected the application on the ground that the
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restoration application under Order 9 Rule 4 of CPC must be
filed on the same day or within twenty-four hours. This is
unsustainable in law. Since the Code of Civil Procedure does not
contemplate that the application for restoration must be filed
on the same day or within twenty-four hours as observed by
the Presiding Officer. Hence, the order of rejection is
unsustainable in law.
For the reasons stated above, the order
dated:14.02.2022 is liable to be quashed. Accordingly, it is
quashed.
8. The Writ of Certiorari is ordered. The order
dated:14.02.2022 passed by the Prl. Civil Judge and JMFC,
Sindhanoor in Civil Miscellaneous No.14/2017 is quashed.
Consequently, the application is allowed.
9. Resultantly, the Writ Petition is allowed.
Lastly, I may venture to observe that the defendant is not
diligent in prosecuting the proceedings. Suffice it to note that
the suit was decreed on 02.04.2014. The defendant chose to
make an application for setting-aside the exparte decree only in
the year 2017 i.e., after a lapse of almost three years.
Furthermore, she allowed the Civil Miscellaneous Petition be
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dismissed for default and thereafter moves an application for
restoration of the Civil Miscellaneous Petition and it is relevant
to note that arguments were not addressed on behalf of the
defendant. The conduct of the defendant depicts that she is not
diligent in prosecuting the proceedings. Therefore, this Court
deems it proper to impose cost of Rs.1,000/- (Rupees One
Thousand only) on the defendant payable to Sindhanur
Advocates' Association Library Fund, Sindhanur.
It is made clear that the defendant shall have the right of
audience only on payment of cost of Rs.1,000/- (Rupees One
Thousand only) to Sindhanur Advocates' Association Library
Fund, Sindhanur.
Sd/-
JUDGE
MRP/TKN
