Karnataka High Court
Sri. Siddaraju vs Sri M Lokanath on 8 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:45242
MFA No. 6168 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6168 OF 2023(CPC)
BETWEEN:
1. SRI. SIDDARAJU
S/O LATE NINGAIAH
AGED ABOUT 68 YEARS
2. SWETHA
D/O N SIDDARAJU
AGED ABOUT 36 YEARS
3. SHRUTHIKA
D/O N SIDDARAJU
AGED ABOUT 34 YEARS
ALL ARE R/AT MUDAGERE VILLAGE
MALLUR HOBLI
CHANNAPATNA TALUK
RAMANAGARA DISTRICT
Digitally signed by ...APPELLANTS
REKHA R
Location: High Court of (BY SRI. RAVINDRANATH M., ADVOCATE)
Karnataka
AND:
SRI M LOKANATH
S/O B M MALLIKARJUNAPPA
AGED ABOUT 69 YEARS
R/AT NO.8, BINNY LAYOUT
3RD STAGE, 14TH MAIN
ATTIGUPPE
VIJAYANAGARA
BENGALURU-40
...RESPONDENT
(BY SRI. VARUN GOWDA, ADVOCATE)
-2-
NC: 2024:KHC:45242
MFA No. 6168 of 2023
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
03.08.2023 PASSED IN MISC.NO.06/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA, DISMISSING
THE MISCELLANEOUS PETITION FILED UNDER ORDER 9 RULE
13 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for appellants and also learned
counsel appearing for respondent.
2. Though the matter is listed for admission, heard
with the consent of both the parties on merits.
3. The factual matrix of the appeal is that
petitioners are the defendants before the trial Court and
suit was filed for specific performance and also appeared
before the trial Court and filed written statement and
thereafter not participated in cross-examination of PWs-1
and 2. Thereafter trial Court has passed the judgment and
decree in favour of respondent herein. Being aggrieved by
the said judgment and decree Misc.No.06/2019 was filed
before the trial Court invoking Order IX Rule 13 of C.P.C.
NC: 2024:KHC:45242
4. The grounds urged before the trial Court that
petitioner No.1 is an illiterate and not having knowledge of
law and petitioner Nos.2 and 3 are young girls pursuing
their studies and having no knowledge of Court
proceedings. Petitioner No.1 was instructed by the counsel
who hails from Bengaluru, to follow up the case and keep
the information updated to the counsel, but petitioner
No.1 has failed to understand the stage of the case and
procedure of the Court.
5. It is the contention of petitioner No.1 that he
was busy and engaged in searching alliance for his
daughter i.e., petitioner No.2 for marriage and also
performing wedding and other ceremonies. It is also
contended that one Sri.Umesh gave assurance to settle
the matter amicably and petitioner No.1 was very
confident of settlement of the matter and he got himself
involved in the said ceremonies and other activities and
not chosen to contest the matter and petitioners were not
aware of the judgment and decree and when they filed
NC: 2024:KHC:45242
execution petition before the Court, they have filed the
petition. The said petition was resisted before the trial
Court by filing statement of objections by the respondent
contending that inpsite of filing of written statement not
participated in the proceedings. Even the trial Court has
granted time to cross-examine the witnesses of PWs-1 and
2 and they have not been cross-examined and thereafter
the trial Court has passed the judgment and decree and no
ground was made out to set aside the impugned order and
unless sufficient cause is shown the question of setting
aside the order does not arise.
6. It is also contended that there is delay in filing
the petition and delay is also not explained. The trial Court
also allowed the parties to lead evidence and the
petitioners have examined witnesses i.e., petitioner No.1
and got marked Ex.P1 to 3 and respondent was examined
as RW-1 and got marked Ex.R1 to 3. The trial Court
having considered the grounds urged in the petition and
also the statement of objections, evidence adduced by
NC: 2024:KHC:45242
both the parties taken note of the fact that PW-1 who was
examined before the trial Court was a Government
employee and he was having knowledge about the Court
proceedings and also answers elicited in the mouth of
PW-1 is very clear that he was having knowledge of Court
proceedings, but did not cross-examine the witnesses.
7. The trial Court also taken note of the grounds
urged before the trial Court that he was pursuing the
marriage of his daughter i.e., petitioner No.2 and he
categorically admitted that marriage was held in 2016 and
it has also taken note of the fact that PWs-1 and 2 were
examined in the month of July 2018 and they were not
cross-examined and at the time of cross-examination,
there was no any marriage and the other contention that
he was very busy in performing the marriage is also not
accepted and rejected the same. Being aggrieved by the
said order, the present appeal is filed.
8. The main contention of the learned counsel for
the appellants is that the trial Court after full fledge trial
NC: 2024:KHC:45242
has dismissed the petition on the ground that explanation
for delay is not properly explained and also not considered
the averments made in the delay application and only
specifically mentioning that he came to know about the
filing of Ex.No.1/2016, the trial Court failed to appreciate
the fact that one Umesh made an assurance to settle the
matter amicably and trial Court also failed to consider the
grounds which have been urged before the trial Court
invoking Order IX Rule 13 of C.P.C and hence, prays for
interference by this Court.
9. Per contra learned counsel appearing for
respondent vehemently contend that the trial Court having
taken note of the fact which have been urged before the
Court in para Nos.18 and 19 regarding admission on the
part of petitioner No.1 who has been examined as PW-1
and also considered the admission on the part of petitioner
Nos.2 and 3, there is no sufficient case to invoke Order IX
Rule 3 of C.P.C.
NC: 2024:KHC:45242
10. Having heard the learned counsel and also main
contention of the learned counsel appearing for appellants
which have been urged before this Court that the trial
Court dismissed the petition on the ground that there is no
any proper explanation with regard to the delay is
concerned, having perused the order impugned not only
dismissed the petition on the ground of delay and even
considered on merits and also taken note of the admission
on the part of PW-1 i.e., petitioner No.1, who has been
examined, it is also important to note that the trial Court
has also taken note of the fact that he was a Government
employee and which can be presumed that he was having
the knowledge of about Court proceedings. Apart from
that also the trial Court taken note of the fact that
witnesses were examined in the month of June 2018 and
case was posted for cross-examination of PW-1 in the
month of July 2018 and he has not participated in cross-
examination, even dates are given for cross-examination
but he did not turn up. The reasons assigned for non-
appearance also that he was pursuing the alliance and
NC: 2024:KHC:45242
marriage of his daughter i.e., petitioner No.2, but he
categorically admitted that the marriage was held in the
year 2016 itself and the said fact is also taken note by the
trial Court. Apart from that the trial Court has also taken
note of the fact that though the suit was filed in the year
2016 and the same was decreed in 2018 and after filing of
written statement he has not participated in the matter
diligently. In view of the Order IX Rule 13 of C.P.C, it is
settled law that sufficient cause must be shown and in the
case on hand no sufficient cause is shown and only it is
contended that the said Umesh has given assurance to
settle the matter and in order to substantiate the same
also, a question was put to him as to whether he is going
to examine the said Umesh, he had replied that he cannot
examine the said Umesh. When there is no such material
on record, I do not find any reasons to interfere with the
order of the trial Court. In view of the discussions made
above, I pass the following:
NC: 2024:KHC:45242
ORDER
Appeal is hereby dismissed.
SD/-
(H.P.SANDESH)
JUDGE
RR
