Karnataka High Court
Sri G.Thimmaiah vs Sri B Balavendaram on 22 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:47718
MFA No. 8137 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.8137 OF 2017 (CPC)
BETWEEN:
1. SRI G.THIMMAIAH,
S/O SRI. V.P.GANGAIAH,
AGED ABOUT 49 YEARS,
NOW RESIDING AT NO.177,
4TH CROSS, SHIRDI SAI LAYOUT,
BEHIND K.R.PURA RTO OFFICE,
K.R.PURA, VIRGONAGAR POST,
MEDAHALLI, BENGALURU-560 049.
...APPELLANT
(BY SRI. CHANDRASHEKAR, ADVOCATE)
AND:
1. SRI B. BALAVENDARAM,
Digitally signed S/O SRI. MUNTHUSWAMY,
by DEVIKA M AGED ABOUT 64 YEARS,
Location: HIGH RESIDING STAFF NO.6435,
COURT OF
KARNATAKA RMS 281 DEPARTMENT, ITI,
DOORVANI NAGAR POST,
BENGALURU-560 016.
...RESPONDENT
(BY SRI. K.N.NITISH, ADVOCATE FOR
SRI. K.V.NARASIMHAN, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC,
AGAINST THE ORDER DATED 07.09.2017 PASSED IN
O.S.NO.3218/2011 ON THE FILE OF THE PRINCIPAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU, REJECTING THE
APPLICATION FILED UNDER SECTION 151 OF CPC.
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NC: 2024:KHC:47718
MFA No. 8137 of 2017
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondent.
2. This miscellaneous first appeal is filed against the
dismissal of the suit on account of non-appearance of the
plaintiff.
3. The learned counsel for the appellant submits that
on the date of dismissal of the suit, an application was filed for
adjournment and in the affidavit filed along with the application
it is categorically stated that the appellant/plaintiff was suffering
from high fever from one week and he had taken treatment at
Government Hospital, K.R.Puram and the doctor had advised to
take rest and hence he was unable to appear before the Court,
but the Trial Court rejected the said application. The learned
counsel contend that on the very same day one more application
was filed before the Trial Court to recall the order and permit
the plaintiff to lead evidence and the said application is also
rejected on the ground that the grounds made out in the
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application are similar to the grounds made out in the
adjournment application.
4. Being aggrieved by the said order, the present
appeal is filed before this Court.
5. The learned counsel for the appellant contend that
due to health reasons only the plaintiff could not appear before
the Trial Court. The learned counsel submits that the certificate
issued by the doctor is produced before the Court, wherein the
doctor has stated that the plaintiff was under his treatment from
02.08.2017 to 09.10.2017 and he was suffering from viral fever
(Chikangunya). The learned counsel submits that if an
opportunity is given to the plaintiff, he is going to lead evidence
and direction may be given for time bound disposal of the
matter. The learned counsel submits that already evidence has
been commenced and when the plaintiff did not appear before
the Court for leading further evidence, at that juncture only the
case was dismissed. The learned counsel brought to the notice
of this Court that additional issues were framed on 02.01.2017
when the suit was amended for declaratory relief. The learned
counsel submits that both the suits filed by the respondent and
the appellant were clubbed together and in view of the dismissal
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of appellant's suit, the same was delinked and the respondent's
suit was continued and ultimately the respondent's suit was also
dismissed and R.F.A. is filed before this Court and the same is
pending.
6. Per contra, the learned counsel for the respondent
submits that R.F.A. and this appeal may be considered together
and already there is an order of status quo in the R.F.A. The
learned counsel submits that the suit is dismissed on technical
grounds and the matter may be considered together. The
learned counsel submits that even though an opportunity was
given to the appellant before the Trial Court, he did not choose
to lead evidence and cost was imposed and cost is also not paid.
The Trial Court taking note of in the previous date of hearing
also time was sought and instead of dismissing the suit on the
very same day, imposed the cost and inspite of imposing the
cost also the appellant did not appear before the Trial Court.
7. Having heard the learned counsel for the appellant
and the learned counsel for the respondent and also on perusal
of the application filed for seeking extension of time to lead the
evidence, it is specifically stated that the appellant was suffering
from high fever and also particularly stated the name of the
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hospital in which he has taken treatment and subsequent to the
dismissal of the suit he had obtained the certificate from the
doctor and the doctor states that he was suffering from viral
fever (Chikangunya) and issued certificate and the certificate is
placed before this Court. It has to be noted that when both the
parties have sought for the relief of declaration, the appellant's
suit is dismissed and the respondent's suit for declaration is
continued and ultimately the same was also dismissed and
appeal is pending before this Court. The very contention of the
learned counsel for the respondent that both R.F.A. and M.F.A.
may be considered together and appropriate orders can be
passed cannot be accepted, since R.F.A. is based on merits of
the suit was dismissed and appeal is pending and this Court as
statutory appeal should appreciate both oral and documentary
evidence placed on record. But in the case on hand, the suit is
dismissed for non-prosecution, since the appellant did not
participate in further evidence. The learned counsel for the
appellant submits that the appellant did not complete his further
chief evidence. But an observation is made that he was not
subjected for cross-examination. Taking note of the suit was
dismissed for non-prosecution, on the same day an application
was filed assigning the reasons for non-appearance before the
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Court and on the very same day the advocate also filed an
application with memorandum of facts to recall the order and
the same came to be dismissed. The Trial Court ought to have
given an opportunity even on higher cost and when reason was
assigned that he was suffering from Chikangunya, instead of
giving an opportunity, the same was dismissed. Even though
other suit filed by the respondent also clubbed along with this
suit and both for declaration. Hence, it is appropriate to set
aside the order of the Trial Court and to give an opportunity to
the appellant to lead further evidence by restoring the suit. The
appellant is directed to pay the cost imposed by the Trial Court
and lead further evidence, if it is posted for further chief and if it
is posted for cross-examination, subject himself for cross-
examination on the next date of hearing itself.
8. In view of the discussions made above, I pass the
following:
ORDER
(i) The miscellaneous first appeal is allowed.
(ii) The order of the Trial Court dated 07.09.2017
passed in O.S.No.3218/2011, is set aside.
(iii) Both the appellant and the respondent are
directed to appear before the Trial Court on
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06.12.2024 without expecting any separate
notice from the Trial Court.
(iv) The Trial Court is directed to dispose of the
matter within a period of six months.
(v) Both the learned counsel as well as the parties
are directed to assist the Trial Court in
disposal of the matter within the time
stipulated.
Sd/-
(H.P.SANDESH)
JUDGE
MD
