Karnataka High Court
Smt. Shivamma vs Smt. N Manjula on 1 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
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CRP No. 242 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 242 OF 2020 (IO)
BETWEEN:
SMT. SHIVAMMA
W/O LATE AMARAPPA HOLI
AGED ABOUT 55 YEARS
OCC-HOUSE WIFE
R/AT RAMDAS COMPOUND
4TH BLCOK
CHITRADURGA TOWN-577501.
...PETITIONER
(BY SRI. GANAPATHY BHAT VAIRALLI., ADVOCATE
AND:
1. SMT. N MANJULA
W/O SRI. T MAHANTESH
AGED ABOUT 56 YEARS
OCC-HOUSE WIFE
Digitally signed R/AT HALALHERE ROAD
by CHITRADURGA TOWN-577501.
NARAYANAPPA
LAKSHMAMMA
Location: HIGH 2. T LAXMINARASIMHA SWAMY
COURT OF
KARNATAKA S/O LATE H B THIPPESWAMY,
AGED ABOUT 56 YEARS,
OCC-AGRICULTURIST,
R/AT B L GOWDA LAYOUT,
BEHIND NAVEEN HOTEL
CHITRADURGA TOWN-577501.
...RESPONDENTS
THIS CRP FILED UNDER SECTION 115 OF CPC PRAYING
TO CALL FOR THE ENTIRE RECORDS IN M.A.NO.26/2015, ON
THE FILE OF 1ST ADDITIONAL SENIOR CIVIL JUDGE, AT
CHITRADURGA AND CIVIL MISCELLANEOUS NO.17/2014 ON THE
-2-
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CRP No. 242 of 2020
FILE OF 2ND ADDITIONAL CIVIL JUDGE AND JMFC., AT
CHITRADURGA, IN THE INTEREST OF JUSTICE AND EQUITY AND
ETC.
THIS CRP, COMING ON FOR ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs;
a. Call for the entire records in M.A.No.26/2015, on the
file of 1st Additional Senior Civil Judge, at
Chitradurga and Civil Miscellaneous No.17/2014 on
the file of 2nd Additional Civil Judge and JMFC., at
Chitradurga, in the interest of justice and equity.
b. Set-aside the impugned order dated 16.02.2016 in
M.A.No.26.2015, passed by the 1st Additional Senior
Civil Judge, at Chitradurga; consequently allow the
same by dismissing the impugned order dated
04.07.2015 in Civil Miscellaneous No.17/2014,
passed by the 2nd Additional Civil Judge and JMFC at
Chitradurga, in the interest of justice and equity.
c. Grant such other relief's as this Hon'ble Court deems
fit to grant on the facts and circumstances of the
case, in the interest of justice and equity.
2. The petitioner had filed a suit in OS No.299/2011 for
specific performance of an agreement of sale. The
said suit came to be decreed ex-parte. In view
thereof, a miscellaneous petition under Order 9 Rule
13 of the Code of Civil Procedure was filed by
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defendants in Misc.No.17/2014. By order dated
4.7.2015, the II Additional Civil Judge & JMFC,
Chitradurga allowed the said application taking into
consideration the various documents which had been
produced by defendants including the outpatient
slips, case sheet issued by the Victoria
Hospital, discharge letter. The death of a family
member which prevented the defendants from
entering appearance and contesting the matter. It
also considered the orders passed in Ex.No.113/2014
filed by one Smt.S.Sabeeha Banu against the
petitioners for directing the judgment debtors to
execute the registered sale deed of the property in
favour of the decree holder and that under the sale
deed in favour of the decree holder, vacant
possession of the property had been available.
3. But however, taking into consideration the outpatient
slips, the nature of injuries suffered by a family
member Ms.Archana who had been admitted to
hospital an account of burn injuries and she has
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expired, the petitioner being the mother of
Ms.Archana being in shock could not attend to Court
and contest the matter.
4. The trial Court exercising its discretionary power has
come to a conclusion that hardship would be caused
to the defendant, if she is not permitted to
contest the matter. The suit being one for specific
performance and the inability for her to appear was
an account of the death of her daughter allowed
Misc.No.17/2014 vide order dated 4.7.2015. This
order was challenged by the petitioner herein in
MA No.26/2015 before the I Additional Senior Civil
Judge, Chitradurga. The said appeal also came to be
dismissed by the First Appellate Court on similar
grounds as that taken up by the trial Court.
5. Apart therefrom, the First Appellate Court also took
into consideration the fact of there being dispute as
regard the payment of the monies itself, the cheque
had been returned with the endorsement "funds
insufficient". Therefore, if the consideration had not
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flown, the plaintiff would not be entitled for specific
performance which aspects would have to be
established during the course of trial. It is
challenging these two judgments that the petitioner
had filed a writ petition in WP No.39415/2016 which
came to be disposed on 23.1.2020 by permitting the
petitioner to file a Civil Revision Petition as also by
providing benefit of Section 14 of the Limitation Act.
It is thereafter the present writ petition has been
filed.
6. In that view of the matter, the time spent in
prosecuting the writ petition would have to be
excluded and the delay of 1362 days in filing the
above petition is required to be condoned as such IA
No.3/2020 is allowed.
7. In so far as the merits of the matter is concerned,
the petitioner being the plaintiff having filed a suit in
OS No.299/2011 for specific performance, the
defendant though served could not appear in the
matter. The reasons given by the defendant was
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that her daughter had expired due to burn injuries
and she was taking care of her daughter during that
time and in that frame of mind being under shock
could not contest the suit.
8. The death of a family member more particularly a
daughter having caused shock to the defendant, the
trial Court has accepted the said reason. I do not
find any infirmity in such acceptance, the defendant
having come forward to contest the matter and filed
an application giving out the reasons as to why she
could not appear and also clearly and categorically
contending that no consideration which has been
taken into consideration by the First Appellate Court.
I am of the considered opinion that the plaintiff
cannot rely on technicalities and seek to execute an
ex-parte expired judgment passed in favour of
the plaintiff, balancing the equities of the plaintiff
and the defendant considering that the
defendant daughter has expired which is the reason
for her non-appearance before the trial Court. I am
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of the considered opinion that the trial Court and the
First Appellate Court have in the cause of justice
accepted the said reason, not finding any infirmity in
the said order, the appeal stands dismissed.
9. Though the counsel for the petition seeks for a
direction to the trial Court to dispose of the matter in
3 months, I am of the considered opinion that there
is no requirement to issue such a direction
considering that it is the petitioner who has been
contesting the matter for the last 7 years and it is
the cause of the delay. The pleadings are yet to be
completed. It would not be proper for this Court to
give any such direction.
10. The trial Court taking into consideration the vintage
of the suit to dispose of the matter as expeditiously
as possible.
Sd/-
JUDGE
SR
