Karnataka High Court
Smt Bhagyamma vs Sri Nagaraju on 4 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2025:KHC:5004
MFA No. 6144 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 6144 OF 2022 (CPC-)
BETWEEN:
1. SMT. BHAGYAMMA
HINDU, AGED ABOUT 59 YEARS,
W/O MR. RANGEGOWDA,
D/O LATE. BASAVAIAH,
R/AT J.B.SARAGORU,
HAMPAPURA HOBLI,
H.D.KOTE TALUK, MYSURU DISTRICT.
2. SMT. PUTTALAKSHMI
HINDU, AGED ABOUT 56 YEARS,
W/O MR. RAJU,
D/O LATE. BASAVAIAH,
R/AT DEVARASANAHALLI,
KASABANA HOBLI, NANJUNDGUD TALUK,
MYSURU DISTRICT.
3. SMT. DEVI
Digitally signed by HINDU, AGED ABOUT 54 YEARS,
VEDAVATHI A K
Location: High W/O MR. CHANDRA,
Court of
Karnataka D/O LATE BASAVAIAH,
R/AT HOUSE NO.112, 3rd CROSS,
N.R MOHALLA, MYSURU.
...APPELLANTS
(BY SRI. SHIVARAMU H C., ADVOCATE)
AND:
1. SRI. NAGARAJU
HINDU, AGED ABOUT 60 YEARS,
S/O LATE BASAVAIAH,
2. SRI. KRISHNA
HINDU, AGED ABOUT 69 YEARS,
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MFA No. 6144 of 2022
S/O LATE BASAVAIAH,
BOTH ARE R/AT HOUSE NO.2764,
NEW NO.CH-19, 1ST MAIN ROAD,
RAILWAY GATE,
K.G. KOPPALUR, MYSURU.
3. M/S BHARATH EARTH MOVERS
EMPLOYEES HOUSE BUILDING,
CO-OPERATIVE SOCIETY,
BELVADI POST, KASABA HOBLI,
MYSURU TALUK, MYSURU DISTRICT.
REPRESENTED BY ITS SECRETARY.
4. SMT. YASHODA
HINDU, AGED ABOUT 50 YEARS,
W/O NINGARAJU,
D/O LATE BASAVAIAH,
R/AT NO.220, K.R. MARKET ROAD,
SOPPINAKERE, MYSURU.
5. SMT. JAYAMMA
HINDU, AGED ABOUT 42 YEARS,
W/O PRAKASHA,
D/O LATE BASAVAIAH,
R/AT NO.660, CHINGERI KOPPALUR,
JAYANAGAR, MYSURU.
...RESPONDENTS
(BY SRI. SHARADI S. SHETTY, ADVOCATE FOR R4 & 5;
VIDE ORDER DATED:12/10/2023 NOTICE TO R1 HELD
SUFFICIENT;
R2 & 3 ARE SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(c) OF CPC,
AGAINST THE ORDER DATED 20.06.2022 PASSED IN
MISC.NO.39/2018 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE PETITION
FILED UNDER ORDER IX RULE 9 READ WITH SECTION 151 OF
CPC, WITH COST OF RS. 500/-.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 6144 of 2022
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
This appeal is filed by the appellants/plaintiff Nos.1
to 3 under Order XLIII Rule 1(c) of CPC., for setting aside
the order of dismissal of the Misc.Petition No.39/2018
dated 20.06.2022, by the I Addl. Senior Civil Judge & CJM
Mysuru, for having dismissed the application under Order
IX Rule 9 of CPC., for restoration of the original suit in
OS.No.1055/2013, which was dismissed for non
prosecution on 12.04.2018.
2. Heard the arguments of learned counsel for the
appellants. Learned counsel for respondent Nos.4 and 5
present. Respondent Nos.1 to 3 served, unrepresented.
3. The case of the appellant before the trial court is
that the plaintiffs have filed the suit for partition and
separate possession in respect of suit schedule property in
OS.No.1055/2013. The defendants appeared in the trial
court and filed written statement and issues have been
framed. Thereafter, the plaintiff No.5/respondent No.5 was
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examined as PW.1 on 10.12.2015. The respondent Nos.4
and 5 are the plaintiffs in the original suit. After the
examination in chief matter was posted for cross
examination. The PW.1 not tender for cross examination,
hence the trial court expunged the evidence of the PW.1
for non appearance and dismissed the suit of the plaintiffs
for non prosecution vide order dated 12.04.2018. Feeling
aggrieved by the same, the plaintiff Nos.1 to 3 filed Misc.
Application before the civil court. The plaintiff Nos.4 and 5
not joined, hence they made as respondent Nos.4 and 5.
Subsequently, the petitioner No.2-Puttalakshmi examined
as PW.1 and got marked two documents. The respondent
Nos.1 to 3 were contested the matter and finally the Misc.
Application came to dismissed by the trial court. Hence,
plaintiff Nos.1 to 3 are before this court and respondent
Nos.4 and 5 are the plaintiff Nos.4 and 5 before this court.
The defendant Nos.1 to 3 remained absent.
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4. Learned counsel submits that the mother of the
plaintiffs was died, he was under continuous treatment,
therefore they could not appear before the court. She was
died on 14.07.2017 and due to miscommunication the
plaintiff not able to come to the court for tendering
evidence, by that time suit was dismissed for non
prosecution. It is contended that the plaintiffs are having
good case on merits, the plaintiffs are the daughters, the
defendant Nos.1 and 2 sold the property of the joint family
without consent of the plaintiff to the third defendant,
therefore if the suit is restored, they can establish their
case and the Trial Court committed an error in dismissing
the application without appreciating the documents.
Hence, prayed for allowing the appeal.
5. Considering the documents, of course the plaintiff
produced two documents, order sheet and copy of the
plaint but the death certificate as well as medical
documents of the mother was not produced before the
Trial Court while examining themselves in the misc.
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petition. Therefore, the Trial Court constrained to dismiss
the misc. application. However, on perusal of the medical
records, there was continuous treatment taken by the
mother of the plaintiff. Subsequently, she was died on
14.07.2017. There is a sufficient ground given by the
plaintiff for non appearance before the Trial Court. And
apart from that if the suit of the plaintiff is not restored for
prosecution there is a bar for filing a fresh suit under
Order IX Rule 9 of CPC., such being the case, in the
interest of justice, the Trial Court ought to have allow the
Misc. petition and to restore the suit, dismissing the
application will leads to the multiplicity of proceedings.
Accordingly, the appeal is allowed.
The order of the I Addl. Senior Civil Judge & CJM
Mysuru, in Misc.Petition No.39/2018 dated 20.06.2022, is
hereby set aside.
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The petition filed by the appellant under Order IX
Rule 9 of CPC., is hereby allowed.
Dismissal of the original suit in OS.No.1055/2013
dated 12.04.2018, is hereby set aside.
The suit of the plaintiff is restored to the original file
in OS.No.1055/2013, at the cost of Rs.5,000/- by the
appellant and Rs.5,000/- by the respondent Nos.4 and 5
to be deposited before the District Legal Services
Authority, Mysuru, within two weeks.
The appellant shall appear before the Trial Court
without any further notice by 24.02.2025.
Sd/-
(K.NATARAJAN)
JUDGE
SRK
CT:SK
