Karnataka High Court
Mr K Zafrulla vs K Moin Pasha on 10 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:20156
CRP No. 117 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 117 OF 2018 (IO)
BETWEEN:
MR K ZAFRULLA
AGED ABOUT 67 YEARS
S/O K ABDUL JABBAR
PROPRIETOR
M/S K ZAFRULLA & CO
FRUIT COMMISSION AGENTS,
RESIDING AT NO 12,
MVR BLOCK II CROSS,
J C NAGAR
BANGALROE - 560006
...PETITIONER
(BY SRI. NAVEED AHMED., ADVOCATE)
AND:
K MOIN PASHA
Digitally signed S/O LATE IBRAHIM SAB
by SHWETHA
RAGHAVENDRA MANGO MERCHANT
RESIDING AT TAYALUR VILLAGE POST
Location: High
Court of TAYALUR HOBLI,
Karnataka MULBAGAL TALUK - 563136
...RESPONDENT
(RESPONDENTS SERVED AND UNREPRESENTED)
THIS CRP IS FILED UNDER SEC.115 OF CPC., PRAYING TO
CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 20.01.2018
PASSED IN OS.NO.8656/2016 ON THE FILE OF THE VIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE
SUIT BY INVOKING ORDER 10 RULE 4(2) OF CPC. AND ETC.
THIS CRP, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRP No. 117 of 2018
ORDER
1. The petitioner is before this Court seeking for the
following reliefs;
1. Call for the entire records.
2. Set aside the order of dismissal U/o Rule 4(2)
dated 20.01.2018 passed by the 8th Additional City
Civil and Session Judge, Bangalore, (CCH-15), in
O.S.No.8656/2016;
3. Restore the suit in O.S.No.8656/2016 in the file of
8th Additional City Civil and Sessions Judge,
Bangalore.
4. Pass any such other order deems fit under the fact
and circumstances of the case, in the interest of
justice and equity.
2. The petitioner was a plaintiff in O.S.No.8656/2016,
notice having been issued therein the defendant had
entered appearance and filed his written statement
on 24.11.2017. Hence, the trial Court posted the
matter on 19.1.2018 for enquiry under Order 10 of
the Code of Civil Procedure as also to explore if there
is a possibility of settlement under Section 89 of the
Code of Civil Procedure.
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3. On 19.1.2018, though the counsel for the plaintiff
was present, the plaintiff remained absent.
Defendant and defendant counsel were present.
Hence, the matter was adjourned to 20.1.2018, in
the forenoon session again the plaintiff was absent,
the matter was posted to the afternoon session again
the plaintiff was absent. Taking this aspect into
account the suit came to be dismissed in terms of
Rule (4) of Order 10, it is challenging the said order,
the petitioner is before this Court.
4. Rule (4) of order 10 has been included in the CPC for
the purpose of effective and proper adjudication in a
speedy manner by ascertaining if there is a
possibility of a settlement between the parties and
bringing a closure to a dispute.
5. Rule (1) of Order 10 imposes an obligation on the
Court to ascertain from the each of the parties or the
pleader, whether he admits or denies such allegation
of facts as are made in the plaint or written
statement which are not expressly or by necessarily
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implication admitted or denied. The trial Court is
also required to record such admission and denial.
This being an obligation imposed by the CPC on the
trial Court it is but required for each of the Courts to
discharge such obligation imposed under Rule (1) of
Order 10. In terms of Rule (2) of Order 10 it is
mandatory for the trial Court for the purpose of
elucidatory matters in controversy and dispute to
orally examine the parties to the suit and record the
same.
6. This being an obligation which has been imposed on
the Court it is but required for all the parties to the
said suit to cooperate with the said Court to
discharge the obligation. In that background, Rule
(4) of Order 10 prescribes the consequence of refusal
or inability of the pleader to answer.
7. Sub-rule (1) of Rule 4 provides that if the pleader is
unable to answer the Court may call upon the party
to be present. Rule (4) of Order 10 provides for a
situation where the parties fail to appear without
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lawful excuse then the Court could pronounce
judgment against him or make such order in relation
to the suit as it thinks fit. i.e., say if the plaintiff were
not to be present the plaint could be dismissed, if the
defendant where not be present the suit could also
be decreed on the basis of the pleadings and
evidence on record.
8. In the present case the plaintiff choose not to be
present, no application was made for an
adjournment, giving the reasons which could amount
to lawful excuse for the non appearance of the
plaintiff. It is in that background that the suit came
to be dismissed, exercising powers under Rule (4) of
Order 10.
9. Sri. Naveed Ahmed., learned counsel appearing for
the petitioner would today submit that though there
is default on part of the plaintiff to appear before the
trial Court, if a date were to be fixed by this Court
the plaintiff would appear before the trial Court and
answer all the queries that may be posed by the trial
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Court for compliance with requirements of Order 10
as also Section 89 of the CPC. It is in that view of
the matter, on the express undertaking given by
Sri. Naveed Ahmed., that I allow the above petition
and pass the following:
ORDER
i. The Civil Revision Petition is allowed.
ii. The order dated 20.01.2018 passed by VIII
Additional City Civil and Session Judge, Bangalore
is set aside.
iii. Suit in OS No.8656/2016 is restored to file of the
VIII Additional City Civil and Session Judge,
Bangalore.
iv. The petitioner who is the plaintiff shall appear
before the trial Court on 26.6.2024 without
requirement of any further notice.
v. The trial Court would be liberty to examine the
plaintiff in terms of Order 10 of the CPC either on
that date or after issuing fresh notice to the
defendant.
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vi. The above order is subject to the petitioner
making payment of the cost of Rs.1000/- to the
Advocate Clerk's Benevolent Fund, which shall be
paid on or before 20.6.2024 and
acknowledgement thereof to be produced before
the trial Court for consideration. If the cost is not
paid and/or acknowledgment is not produced to
the trial Court, the above order will stand
rescinded at the trial Court would not require to
proceed with the suit.
Sd/-
JUDGE
SR
