Karnataka High Court
K Sreedhara vs Mohanachar on 28 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RP No. 502 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REVIEW PETITION NO. 502 OF 2023
IN
R.S.A.NO.1182/2007 (DEC)
BETWEEN:
1. K. SREEDHARA
S/O RUDRAPPA SHETTY
AGED ABOUT 61 YEARS
RA/T KUBATOR VILAGE
ANAVATTI HOBLI,
SORAB TALUK
SHIMOGA DISTRICT 577429
...PETITIONER
(BY SRI K.SREEDHAR, ADVOCATE)
AND:
1. MOHANACHAR
S/O SHANKARAPPACHAR
Digitally signed
by SHARANYA T AGED ABOUT 68 YEARS
Location: HIGH R/AT KUBATOR VILAGE
COURT OF ANAVATTI HOBLI
KARNATAKA SORAB TALUK
SHIMOGA DISTRICT-577429
NOTE: (K. NARAYANACHAR S/O LAKSHMIKANTHACHAR
(SINCE DECEASED AND LRS ARE NOT BROUGHT ON
RECORD IN OS NO.26/90 AND HENCE,
NOT MADE AS PARTIES IN THIS APPEAL)
...RESPONDENT
(BY SRI. H.S.SURESHAPPA GOWDA, ADVOCATE)
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RP No. 502 of 2023
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 OF CPC, PRAYING TO REVIEW THE ORDER DATED
28/06/2023 IN RSA NO.1182/2007 AND REHEAR THE MATTER.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the review petitioner
as well as the learned counsel appearing for the
respondent.
2. The main contention of the learned counsel for
the review petitioner is that his name is 'K.Sreedhar' and
in the cause list his name is shown as 'K.Sridhar'.
Therefore, he could not appear before this court when the
matter was listed for hearing the arguments i.e.,
R.S.A.No.1182/2007. Though this court made an
observation on the previous dates of hearing that learned
counsel for the respondent is absent and one more
opportunity is given, and since, the name of the learned
counsel for the review petitioner was wrongly shown in the
cause list, he did not appear before the court and the
matter was heard in his absence and disposed of. Hence,
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this court can review the order and an opportunity has to
be given to the review petitioner.
3. The learned counsel for the respondent would
vehemently contend that though the order was passed the
absence of learned counsel for the review petitioner, but
the matter was considered on merits and answered the
substantial question of law framed by this court and on
merits only the appeal was considered and allowed.
Therefore, the question of reviewing the order does not
arise.
4. Having heard the submissions made by learned
counsel for the review petitioner and learned counsel for
the respondent and in view of the judgment of the Hon'ble
Apex Court in 'HARBANS PERSHAD JAISWAL VS
URMILA DEVI JAISWAL'. (2014) 5 SCC 723' has held
with regard to the proviso of
Order 41 Rule 17, 19 and 21 and has observed that in
case of non appearance of appellant, the matter has to be
dismissed for default without going into the merits under
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Rule 17(1), but if the respondent does not appear, appeal
can be heard ex parte on merits under Rrule 17(2). If
appellant applies under Rule 19 for readmission of appeal
or respondent applies under Rule 21 for rehearing, court
has to be satisfied that appellant or respondent was
prevented by sufficient cause from appearing. If appellate
courts find no sufficient cause shown by appellant or
respondent, application is liable to be rejected.
5. Having considered the principles laid down in
the judgment, it is clear that if the respondent does not
appear and if he applies for rehearing of the matter under
Rule 21 of Order 41 of CPC, court has to be satisfied that
he was prevented by sufficient cause. In the case on hand
also, it has to be noted that the main contention of the
review petitioner that his name has not been shown
properly in the cause list as there was a typographical
error, he could not appear before the court while hearing
the matter. It is also important to note that on perusal of
the entire order sheet it discloses that when the matter
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was listed for final hearing on 30.01.2023, none were
present. When the case was called on 29.02.2023 also,
matter was adjourned at the instance of the appellant but
the learned counsel for the respondent was not present.
On 26.05.2023, both the learned counsel remained
absent. Hence, in the ends of justice, the court has given
one more opportunity. On 02.06.2023, learned counsel for
the appellant was present and learned counsel for the
respondent remained absent. This court having taken note
of the fact that the matter pertains to the year 2007, in
the ends of justice, one more opportunity was given to the
respondent and also made it clear that if the learned
counsel does not appear on the next date of hearing, the
appeal will be heard in his absence. When the matter was
posted on 09.06.2023, this court taking into note of the
order wherein it was made clear that if the respondent
counsel does not appear on the next date of hearing, the
matter will be heard in his absence. However, one more
opportunity was given in the ends of justice to the learned
counsel for the respondent to make his submission after
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hearing the learned counsel for the appellant and when
the learned counsel for the respondent did not appear
before the court, the court has taken as no arguments of
the learned counsel for the respondent and the matter was
reserved and judgment was pronounced.
6. Having taken note of all this proceedings of the
court, at no point of time, the learned counsel for the
respondent appeared and on verifying the cause lists of
previous occasions also, the very same mistake was
committed in mentioning his name as K.Sridhar instead of
K.Sreedhar. Hence, this court is satisfied that he was
prevented by sufficient cause from appearing for technical
reasons. When such being the case, it is appropriate to
review the order of this court and give an opportunity to
the learned counsel for the review petitioner to address his
arguments. Hence, the order passed by this court is
reviewed and set aside the order which was passed in the
absence of review petitioner.
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7. Accordingly, review petition is allowed and
R.S.A.No.1182/2007 is restored.
Registry is directed to show the correct names of
learned counsel for the review petitioner as Mr.K.Sridhar
as well as learned counsel for the respondent as
Mr.H.S.Sureshappa Gowda.
To hear the arguments of the R.S.A., list this
matter on 05.03.2024.
Sd/-
JUDGE
SS
