Karnataka High Court
Mr A R Mohamed Iiyash vs Mr H S Puttakempanna on 12 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:1674
MFA No. 1179 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 1179 OF 2018 (CPC)
BETWEEN:
1. MR. A.R. MOHAMED IIYASH
S/O MR. V. ABDUL RAHIM,
AGED ABOUT 42 YEARS,
R/AT FLAT NO.7, 2ND CROSS,
G.M.R.SHARDAMMA LAYOUT,
SANJAY NAGAR,
BANGALORE-560094
PERMANENTLY RESIDING
AT "D-20 KALATHIL",
POOCHIRA, GANDHINAGAR,
PADUPPARIYARAM P.O.,
PALAKKAD, KERALA-678731
...APPELLANT
Digitally signed
by SHARANYA T (BY SRI. ARJUN R. KHOT, ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA
1. MR. H.S. PUTTAKEMPANNA
S/O LATE SRI K.H.SHAME GOWDA,
AGED ABOUT 79 YEARS,
R/AT NO.288/16, 5TH MAIN,
MAHALAKSHMI LAYOUT,
BANGALORE-560086
...RESPONDENT
(BY SRI. MANJUNATH M. HEGDE, ADVOCATE FOR
SRI T. SESHAGIRI RAO, ADVOCATE)
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NC: 2024:KHC:1674
MFA No. 1179 of 2018
THIS MFA IS FILED U/S.43 RULE 1(d) OF THE CPC,
AGAINST THE ORDER DT.06.01.2018 PASSED IN
MISC.NO.511/2016 ON THE FILE OF THE 3RD ADDITIONAL
CITY CIVIL & SESSIONS JUDGE, BENGLAURU (CCH NO.25),
DISMISSING THE PETITION FILED U/O.9 RULE 13 R/W SEC.151
OF CPC, CONSEQUENTLY PETITION ALSO STANDS DISMISSED
WITH COSTS AND THE REALISTIC COSTS OF RS.10,000/-
PAYABLE TO THE RESPONDENT.
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 miscellaneous first appeal is filed against the
order dated 06.01.2018 passed in Misc.No.511/2016 by the III
Additional City Civil and Sessions Judge, Bengaluru City (C.C.H.
No.25) dismissing the petition.
3. The factual matrix of the case of the petitioner is
that he was a tenant in respect of the suit schedule premises
which is morefully described in O.S.No.8822/2013 which was
filed for ejectment in the year 2013. It is the contention of the
petitioner that he was placed ex-parte and no summon was
served to him and possession was taken. Hence, he has filed
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Miscellaneous No.511/2016 with delay along with I.A.No.1 for
condonation of delay.
4. The Trial Court, after issuance of notice to the
respondent herein, conducted enquiry on I.A.No.1 with regard
to the delay is concerned, since the petitioner has invoked the
provision of Order 9, Rule 13 read with Section 151 of C.P.C.
The Trial Court, taking note of the averments made in the
petition, considered the matter on merits and formulated the
points whether the petitioner has shown sufficient cause to
condone the delay, whether the petitioner has shown that he
was prevented by sufficient cause in entering appearance and
contesting O.S.No.8822/2013.
5. The Trial Court having considered the material on
record, in detail discussed with regard to the averments made
in the petition and also taken note of the fact that suit was filed
in 2013 and the decree was passed on 28.04.2014 and also
taken note of the evidence led by the appellant, since he has
stated that through his Manager-Durgesh, he came to know
about the judgment and decree in February, 2016 and there is
no pleading to that effect, but in the cross-examination, he has
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given such an answer. The Trial Court has taken note of the
fact that he had the knowledge of the decree and apart from
that, while filing the petition, there was a delay and during the
course of cross-examination, he categorically admitted that,
when his mother was ailing, the father, brother and sister were
taking care of her and he was residing in the very same
schedule premises. Hence, the Trial Court has observed that
the very reasoning given by the appellant is not supported by
any document and the grounds urged in the petition also
falsifies the case of the appellant.
6. Learned counsel for the appellant would vehemently
contend that the Trial Court committed an error in dismissing
the petition with cost of Rs.10,000/- payable to the respondent.
Learned counsel also would vehemently contend that the Trial
Court while dismissing the miscellaneous petition failed to take
note of the grounds which have been urged in the petition and
only taken note of the answers elicited from the mouth of
P.W.1 during the cross-examination with regard to the evidence
recorded on the delay is concerned. The counsel would
vehemently contend that the finding of the Trial Court that
appellant has not shown sufficient proof and cause in
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O.S.No.8822/2013 is erroneous and has dismissed the
miscellaneous petition pursuant to the impugned order.
7. Per contra, learned counsel for the respondent
would contend that suit was filed for the relief of ejectment in
the year 2013 and the same was disposed of on 28.04.2014.
Learned counsel would vehemently contend that the Trial Court
has taken note of the fact that certified copy of the impugned
order was applied on 22.04.2015 and the certified copy was
received on 28.04.2015 and miscellaneous petition was filed in
2016 and all these materials were taken note of by the Trial
Court and in detail considered the case of the appellant,
particularly in Para Nos.13, 14, 16 and 17 and reasons are also
assigned while dismissing the petition with cost. Hence, it does
not require any interference.
8. Having heard the learned counsel for the appellant
and learned counsel for the respondent, admittedly, no dispute
with regard to the filing of the suit in the year 2013 and the
same was disposed of on 28.04.2014. The Trial Court also
while considering the grounds which have been urged in
Miscellaneous No.511/2016, also taken note of the admission
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elicited from the mouth of P.W.1 during the course of cross-
examination when enquiry was conducted in respect of the
delay is concerned. The Trial Court also taken note of the fact
that before filing the petition, Exs.P5 and P6 are the notices
issued to the appellant herein and the same is acknowledged
by him. But, the appellant contends that, after receipt of the
notices at Exs.P5 and P6, he could not able to contest the
matter on the ground that his mother was ailing and he was
supposed to take care of his mother. But, the Trial Court has
taken note of the admission elicited from the mouth of P.W.1
during the course of cross-examination, wherein he has
categorically admitted that his father, brother and sister were
attending to his ailing mother and sometimes he used to visit
the hospital to look after her and he was residing in the very
same premises and from there, he was visiting his mother and
the same has been observed in Para Nos.12 and 13. Further,
the Trial Court has also taken note of the fact that certified
copy has been obtained by the petitioner herein and also in
Para No.14, taken note of the fact that suit was filed on
04.12.2013 and ended in decree on 28.04.2014 and comes to
the conclusion that there is no piece of evidence to show that
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during four months period i.e., from December 2013 to April
2014, this petitioner was not at all residing in the petition
schedule premises.
9. The Trial Court also taken note in Para No.17, while
considering the evidence on record, since he has replied in the
cross-examination that he came to know about the judgment
and decree in February, 2016 and there is no such pleading in
the petition with regard to the said fact. Apart from that, the
Trial Court has also taken note in Para No.17 that he has not
produced any document to show that he was under mental
depression and that completely, he was engaged in providing
treatment to his mother and even if the period of limitation is
also taken note of, the Trial Court in detail discussed with
regard to the limitation, wherein certified copy of order was
applied on 22.04.2015 and copy was obtained on 28.04.2015
and those copies are certified documents which are placed
before the Trial Court to arrive at a conclusion that the
appellant was having the knowledge of judgment and decree.
Hence, the Trial Court comes to the conclusion that these
endorsements completely falsifies his reply that he came to
know about the judgment and decree in February, 2016. The
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Trial Court has passed well reasoned order while rejecting the
application. Having taken note of the grounds urged in the
petition and also the admission elicited from the mouth of
P.W.1, the Trial Court rightly dismissed the petition with cost of
Rs.10,000/-. Hence, I do not find any error committed by the
Trial Court in dismissing the petition. Therefore, there is no
merit in the appeal to come to an other conclusion.
10. In view of the discussion made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
