Karnataka High Court
Miss. P. Punitha vs Smt. Rukmini on 12 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:45910
MFA No. 573 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 573 OF 2016 (CPC)
BETWEEN:
MISS. P. PUNITHA
D/O. S.V. PILLAPPA REDDY,
AGED ABOUT 28 YEARS,
RESIDING AT NO.69,
35TH MAIN, 7TH CROSS,
BTM LAYOUT, II STAGE,
BANGALORE-560 029.
...APPELLANT
(BY SRI. B. SRINIVAS, ADVOCATE)
AND:
1. SMT. RUKMINI
Digitally signed S/O. V. JAYARAMAPPA,
by DEVIKA M AGED ABOUT 59 YEARS,
Location: HIGH RESIDING AT NO. 12,
COURT OF
KARNATAKA 1ST MAIN ROAD,
LAKKASANDRA,
BANGALORE-560 030.
2. R. NAGESH
S/O. RAMESH,
AGED ABOUT 45 YEARS,
RESIDING AT 11TH CROSS ROAD,
3RD MAIN ROAD, WILSON GARDEN,
BANGALORE-560 027.
-2-
NC: 2024:KHC:45910
MFA No. 573 of 2016
3. H.P. NANJEGOWDA
S/O. LATE THIMMARAYAPPA,
a) SUSHEELA,
W/O. LATE NANJEGOWDA,
AGED ABOUT 63 YEARS,
b) H.N. VENKATESH BABU
S/O. LATE NANJEGOWDA,
AGED ABOUT 43 YEARS,
c) MAHESHKUMAR
S/O. LATE NANJEGOWDA,
AGED ABOUT 41 YEARS,
d) SMT. H.N. KAVITHA
D/O. LATE NANJEGOWDA,
W/O. JAIRAM,
AGED ABOUT 39 YEARS,
e) SMT. H.N. HEMANANDINI
D/O. LATE NANJEGOWDA,
W/O. KANTHAGONDAYA,
AGED ABOUT 36 YEARS,
f) H. N. NAVEENAKALA
S/O. LATE NANJEGOWDA,
AGED ABOUT 34 YEARS,
ALL ARE RESIDING AT NO.109/14,
NO.42, 9TH CROSS, WILSON GARDEN,
BANGALORE-560 022. ...RESPONDENTS
(BY SRI. PRITHVIRAJ SHASTRY G., ADVOCATE FOR
SRI G BALAKRISHNA SHASTRY, ADVOCATE FOR R1;
APPEAL AGAINST R2 IS DISMISSED,
VIDE ORDER DATED 17.07.2019;
R3(a) (b) (c) (d) (e) (f) ARE
SERVED AND UNREPRESENTED)
-3-
NC: 2024:KHC:45910
MFA No. 573 of 2016
THIS MFA IS FILED U/O.43 RULE 1(c) OF THE CPC,
AGAINST THE ORDER DATED 16.10.2015 PASSED IN MISC.
NO.867/12 ON THE FILE OF THE 18TH ADDITIONAL CITY CIVIL
JUDGE, BENGALURU, DISMISSING THE PETITION FILED U/O.9
RULE 9 R/W SECTION 151 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 appellants' counsel and also learned counsel
appearing for the respondent.
2. This appeal is filed against the order of
dismissal of Miscellaneous No.867/2012 filed under Order
IX Rule 9 read with Section 151 of CPC praying to set
aside the order of dismissal for non-prosecution passed in
O.S.No.550/2004 dated 09.11.2012 and restore the same.
3. The factual matrix of the case is that
plaintiff before the trial Court has filed the suit in
O.S.No.550/2004 for permanent injunction at the first
instance and subsequently, converted to the relief of
NC: 2024:KHC:45910
declaration and permanent injunction. It is contended
that the date fixed for evidence was on 09.11.2012
but plaintiff submits that junior advocate took hearing
date as 19.11.2012 instead of 09.11.2012 and also
learned counsel would contend that amendment was
sought and the same was allowed on 11.03.2011. On
the date of adducing evidence on 09.11.2012, plaintiff
could not appear and hence, the trial Court committed
an error in dismissing the suit.
4. The learned counsel also would submit that
when the miscellaneous petition was filed, the plaintiff
was examined in the matter and cross examined by
respondent No.1 and thereafter, the GPA holder of
respondent No.1 was examined but however, the said
witness could not be cross examined. Thereafter, the
matter was posted for orders. Though sufficient and
valid reasons were assigned seeking for restoration of
the suit, the trial Court committed an error in
NC: 2024:KHC:45910
dismissing the miscellaneous petition holding that
there was negligence and no bonafides on the part of
the appellant in prosecuting the suit and appellant
except giving evidence did not cross examine RW1.
The very approach of the trial Court is erroneous and
hence, learned counsel prays for set aside order
passed in miscellaneous No.867/2012 and
consequently, allow the Miscellaneous and restore the
original suit.
5. Per contra, learned counsel for the
respondent produced the order sheet before this Court
stating that though the suit was filed in the year 2004,
the same was dismissed in the year 2012. The
appellant did not pursue the matter diligently. On
earlier occasion also on different dates, cost are
imposed and subsequently, even after the death of
defendant No.3 also, an application was filed to bring
the legal representatives on record and did not pursue
NC: 2024:KHC:45910
the same in bringing the legal representatives on
record and ultimately, legal representatives were also
brought on record and even after amendment was
allowed, bringing the legal representatives of
deceased defendant No.3 on record, appellant did not
chose to lead the evidence. The trial Court has also
taken note of the fact that the plaintiff/appellant was
negligent and had not paid the cost and even did not
lead the evidence. On previous occasion, on
16.10.2012, plaintiff was absent and learned counsel
sought time and same was adjourned on cost. Even
after imposing cost, plaintiff/appellant neither chose to
pay the cost nor examine himself. On 09.11.2012,
matter was called and passed over and even in the
second round, no representation was made on behalf
of the plaintiff/appellant. The trial Court made an
observation that the case was posted for evidence in
the year 2007 and plaintiff did not pursue the matter
NC: 2024:KHC:45910
and lead the evidence. Hence, the order passed by the
trial Court is justified and does not require
interference of this Court.
6. Having heard learned counsel for the
appellant and learned counsel for the respondent and
on perusal of the material on record, it is evident that
admittedly, the suit was filed for the relief of
permanent injunction at the first instance but later,
the same was converted to declaration and other
reliefs in respect of the suit schedule property and
amendment was made.
7. On perusal of the order sheet of the trial
Court it is observed that though the suit of plaintiff
was filed in the year 2004 and matter was posted for
evidence in the year 2007, no steps have been taken
to examine himself and trial Court periodically
adjourned the matter and even imposed the cost.
Earlier costs were also not paid and subsequently,
NC: 2024:KHC:45910
once again, imposed cost of Rs.500/- and the same
was paid later and once again, learned counsel seeks
adjournment. Cost of Rs.2,000/- was imposed to allow
the adjournment application. The same was not paid
and the later on it was paid. Even the records disclose
that amendment was sought and the same was also
allowed.
8. On 26.07.2007, for the first time when the
case was posted for evidence, adjourned as a last
chance on cost of Rs.100/-. On the next date of
hearing, cost was paid, plaintiff was absent and once
again, time was sought. But thereafter also, plaintiff
did not lead the evidence and once again the matter
was adjourned. When the relief of declaration was
sought on 10.12.2007, matter was adjourned. Even
on several occasions, plaintiff did not show interest in
leading the evidence and ultimately, the matter was
posted again for evidence on 21.04.2009. Again on
NC: 2024:KHC:45910
21.04.2009, the plaintiff was absent and did not lead
the evidence. Learned counsel prayed for an
adjournment to 18.07.2009.
9. On 18.07.2009, the plaintiff was present
and files an application for adjournment. The same
was allowed and cost of Rs.2,000/- was imposed to be
paid to DLSA. Thereafter, on 24.08.2009, plaintiff filed
an application to bring the legal representatives of
defendant No.3 on record. The same was allowed and
total cost of Rs.2,200/- was imposed to be deposited
in the office. On 26.11.2009, cost was paid and other
three applications were filed. On 02.03.2010, the
applications were dismissed and posted the matter for
plaintiff's evidence on 15.06.2010.
10. On perusal of the order sheet, it reveals that
amendment was sought and direction was issued to
file amended plaint and matter was posted for
plaintiff's evidence. On several occasions,
- 10 -
NC: 2024:KHC:45910
adjournments were sought and did not lead evidence.
Despite imposing cost of Rs.200/-, the same was not
paid and there was no representation. Though suit
was filed in the year 2004, the plaintiff did not purse
the matter. Ultimately, the suit was dismissed in the
year 2012.
11. Being aggrieved by the order passed by the
XVIII Additional City Civil & Sessions Judge,
Bengaluru in O.S.No.550/2004, Miscellaneous
No.867/2012 was filed. The trial Court has taken note
of the fact that the suit was filed in the year 2004 and
case was set down for plaintiff's evidence, plaintiff did
not appear and chose to lead evidence and pursue the
matter. It is observed in the miscellaneous petition
that respondent No.1 examined himself as RW1 and
he was not cross-examined. Having considered the
above fact, the evidence of RW1 indicates that plaintiff
has no bonafides in prosecuting the case and the trial
- 11 -
NC: 2024:KHC:45910
Court comes to the conclusion that dispute is kept
alive from 2004 and dismissed the suit in the year
2012.
12. Taking note of the material on record and
copy of order sheet produced by respondent, it is
observed that the appellant had instituted the suit in
the year 2004 and the case was set down for the
plaintiff's evidence long back. Plaintiff did not show
any interest and pursue the matter and sought several
adjournments. Inspite at the first instance, suit was
filed for relief of injunction and later, converted to
declaration and permanent injunction and even when
the case was set down for plaintiff's evidence,
plaintiff/appellant did not lead evidence. When such
being the case and when through out there was
negligence in prosecuting the original suit and
miscellaneous for restoration also being dismissed and
- 12 -
NC: 2024:KHC:45910
when the trial Court has also given reasons for
dismissal, interference of this Court does not arise.
13. In view of the discussion made above, I
pass the following:
ORDER
Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MDS
