Karnataka High Court
Dayananda Pai vs Maqsood Ali on 25 October, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Reserved on : 24.09.2025
Pronounced on : 25.10.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CIVIL REVISION PETITION NO.19 OF 2014
BETWEEN:
1. DAYANANDA PAI
AGE: MAJOR
S/O LATE NARASIMHA PAI
NO.84/1, 1ST FLOOR, K.H.ROAD
BENGALURU - 560 027.
2. GREEN ORCHARDS FARM HOUSES
PRIVATE LIMITED
BEING A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 2013
HAVING ITS REGISTERED OFFICE AT
NO.10/1, GROUND FLOOR
LAKSHMINARAYNA COMPLEX
PALACE ROAD, BENGALURU - 560 052.
REPRESENTED BY ITS
AUTHORISED SIGNATORY
SRI LINGARAJA K. M.,
AMENDED VIDE ORDER DATED 01.09.2021
3. YESHWANT SHENOY
S/O LATE H.V.SHENOY
AGE: MAJOR
2
NO.43, 2ND CROSS, NEHRU NAGAR
BENGALURU - 560 020.
... PETITIONERS
(BY SRI G.L.VISHWANATH, SENIOR ADVOCATE FOR
SMT. MANASA AND SRI V.C.RAJU, ADVOCATES)
AND:
1. MAQSOOD ALI
S/O MEHMOOD ALI
AGED ABOUT 50 YEARS
R/AT: ALI ESTATE
VASUDEVAPURA
YELAHANKA HOBLI
BANGALORE NORTH TALUK
BENGALURU - 560 054.
2. SMT. BILQUEES MAQDOOM ALI
S/O MAQDOOM ALI
AGED ABOUT 45 YEARS.
REPRESENTED BY HER G.P.A.HOLDER OF
RESPONDENT NO.1
3. MEZAAN MAQDOOM ALI
S/O MAQDOOM ALI
AGED ABOUT 12 YEARS
MINOR-REPRESENTED BY HIS NEXT FRIEND
SMT. BILQUEES MAQDOOM ALI-MOTHER
RESPONDENT NOS.2 AND 3 ARE
R/AT ALI ESTATE, VASUDEVAPURA
YELAHANKA HOBLI, BANGALORE NORTH TALUK
BENGALURU - 560 054.
4. MEHMOOD ALI
S/O MUMTAZ ALI
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AGED ABOUT 76 YEARS.
5. SMT. TAHIRA ALI
W/O MEHMOOD ALI
AGED ABOUT 62 YEARS
RESPONDENT NOS.4 AND 5 ARE
R/AT NO.755, SOUTH BLAKELY STREET
DUNMORE, PA SCRANTON
PENNSYLVANIA, USA).
... RESPONDENTS
(BY CAPTAIN ARVIND SHARMA, ADVOCATE FOR R1;
SRI K.S.RAHUL CARIAPPA, ADVOCATE FOR R2 AND R3;
NOTICE TO R4 AND R5 ARE DISPENSED WITH VIDE
ORDER DATED 31.01.2015)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CIVIL PROCEDURE CODE PRAYING TO ALLOW THIS
REVISION PETITION AND TO CONSEQUENTLY TO SET ASIDE THE
ORDER PASSED IN MISC. NO.850/2007 ON 31.10.2013 BY THE III
ADDITIONAL CITY CIVIL JUDGE, CCH. NO.25, BANGALORE AND TO
CONSEQUENTLY DISMISS THE SAID MISC. PETITION.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.09.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners are before this Court calling in question an
order dated 31-10-2013 passed by the III Additional City Civil and
Sessions Judge, Bengaluru in Miscellaneous No.850 of 2007 and all
proceedings pending thereon.
2. Heard Sri G. L. Vishwanath, learned senior counsel
appearing for the petitioners; Captain Arvind Sharma, learned
counsel appearing for respondent No.1 and Sri Rahul Cariappa K.S.,
learned counsel appearing for respondents 2 and 3.
3. Facts, in brief, germane are as follows:-
The petitioners are defendants and respondents the plaintiffs
in O.S.No.7295 of 2002 out of which, Miscellaneous No.850 of 2007
concerns the present petition. The saga begins in O.S.No.7295 of
2002 which comes to be dismissed for default on 29-10-2007. A
miscellaneous petition in Miscellaneous No.850 of 2007 is filed
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seeking restoration of the suit. During the pendency of
Miscellaneous No.850 of 2007, a memo dated 21-01-2011 is filed
stating that the plaintiffs are not pursuing the petition in view of the
earlier compromise entered into between the parties in O.S.No.496
of 2008. It is the averment in the petition, that notwithstanding the
same, the concerned Court rejects the memo filed, which clearly
held that the plaintiffs were not interested in pursuing the matter
and by the impugned order, restores the suit which had been
dismissed for its non-prosecution. It is this order that
petitioners/defendants call in question in the subject revision
petition.
4. The learned senior counsel Sri G.L. Vishwanath appearing
for the petitioners would vehemently contend that the issue relates
to the year 1991. There were several proceedings between the
parties. Suits in O.S.Nos.7295, 7296 and 7297 of 2002 were filed
notwithstanding a compromise entered into by other family
members. Again, a comprehensive suit is filed seeking declaration
of title and injunction by the petitioners against the Trust and other
family members including the children of one Mehmood Ali. The
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respondents 1 to 3 therein filed R.F.A.No.154 of 2009 challenging
the compromise entered into in O.S.No.496 of 2008. The R.F.A.
then was dismissed as withdrawn. The suit in O.S.No.496 of 2008
thus ended in a compromise. There are in all 28 defendants.
Notwithstanding the compromise entered into between the parties,
a miscellaneous in Miscellaneous No.850 of 2007 is preferred
seeking recall of the suit which ended in a compromise. During the
subsistence of Miscellaneous No.850 of 2007, a memo again is filed
not to pursue the petition in view of the compromise entered into in
O.S.No.496 of 2008. The concerned Court rejects the memo and
passes an order recalling the suit that had been dismissed for non-
prosecution in O.S.No.7295 of 2002.
5. The learned senior counsel appearing for the petitioners
submits that despite compromise petition, the Advocate is wanting
to pursue the matter and not the parties. The parties have also filed
a memo before the concerned Court that they are not interested in
pursuing the matter. Therefore, it is a gross abuse of the process of
law to permit the suit to continue, as a result of allowing of the
miscellaneous petition.
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6. Per contra, the learned counsel Captain Arvind Sharma
would vehemently refute the submissions in contending that the
memo of compromise that is filed is not signed by the defendants.
There is a fraud played by the Court. It is, therefore, the concerned
Court has allowed the application and restored the suit. He would
submit that how a revision petition would become maintainable
against an order which only restored a suit which had been
dismissed for non-prosecution by allowing the miscellaneous
petition, is ununderstandable. He would submit that there are
seriously disputed questions of fact as to how the compromise was
entered into between the parties. It is on that basis the concerned
Court has directed to hear the suit and conclude the proceedings.
The subject petition is pending for 11 years now and the suit is of
the year 2002. He would contend that going into merit of the
matter in a revision petition which challenges the order of recalling
of the suit which had been dismissed for non-prosecution would not
arise. He would seek dismissal of the petition.
7. The learned senor counsel for the petitioners would join
issue and take this Court through plethora of documents produced
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along with a memo to contend that permitting further proceedings
itself would become an abuse of the process of law and, therefore,
the revision petition must be allowed, failing which, it would be
putting a premium upon illegality of the respondents.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The learned senior counsel for the petitioners has placed
on record certain documents placing the history of the litigation.
Therefore, it becomes necessary to trace the history. The
petitioners purchased lands in various survey numbers in
Govindapura, Vasudevapura and Kenchanahalli Villages, Yelahanka
Hobli, Bangalore North Taluk from erstwhile owners Mehmood Ali
and his wife Tahira Mehmood Ali in terms of various sale deeds. The
petitioners claim that they are in possession of the lands and
revenue records stand in their names. In the year 1993, sons of
Mehmood Ali namely, Maqsood, Maqdoom and Masood Ali are said
to have interfered with the possession of the petitioners.
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Therefore, two suits for injunction are filed by the petitioners in
O.S.No.6315 of 1993 and 338 of 1993. On appearance of
defendants they are said to have been closed by entering into a
compromise. Decree is thus drawn on the said compromise.
10. In the year 2002, the sons of Mehmood Ali and other
family members file suits seeking declaration and challenging the
alienations made in the year 1991 as being in violation of deed of
trust and seek injunction and possession. The suits were in O.S.
Nos. 7295, 7296 and 7297 of 2002. Five years thereafter, the suit
in O.S.No.7295 of 2002 comes to be dismissed for non-prosecution.
On 2-11-2007, immediately after dismissal of the suit for its
default, one Mukarram, an Advocate representing the present
respondents' files Miscellaneous No.850 of 2007 seeking to restore
the suit in O.S.No.7295 of 2002. Owing to certain disturbance, the
petitioners who are said to have acquired title, by purchase of
lands, file another suit in O.S.No.496 of 2008, in which the
respondents were the defendants. The said suit comes to be
compromised in the year 2008 itself between the parties. It is
averred that there were 28 defendants in the said suit. Certain
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clauses of the terms of compromise are to be noticed and they read
as under:
".... .... ....
16. Both plaintiffs and defendants 1,7 to 14, 18 to 22 and 25
to 27 submit that, as per the said settlement deed any
properties either movable or immovable remaining unsold
as on 28-10-1999 shall be distributed to the beneficiaries
of the respective trust. But, as on 28-10-1999 there
were no properties standing in the name of any of the
Trust, as all the properties were sold in the year 1991
itself. So, there were no any immovable properties to be
distributed among the beneficiaries of the aforesaid Trust.
... ... ... ...
18. Both plaintiffs and defendants 1, 7 to 14, 18 to 22 and 25
to 27 submit that, by virtue of the settlement and receipt
of several amounts from the plaintiffs herein and the 15th
defendant withdrew the suit filed by him in O.S.No.6105
of 1990, by filing a memo dated 1-10-1993 and had also
filed a compromise petition, along with 2nd defendant and
husband and father of the 7th and 8th defendant herein, in
O.S.No.338 of 1993 dated 29-11-1993, in which
defendant No.15 has admitted the ownership of the
plaintiffs and also the sale deeds executed by the
Defendants No.1, 9, 18 and 22 in respect of the suit
schedule properties and had received various amounts
under Cheques from the plaintiffs, towards the full and
final settlement of 15th defendant's alleged claim over the
suit schedule properties.
... ... ... ...
20. Both plaintiffs and defendants 1, 7 to 14, 18 to 22 and 25
to 27 submit that, out of the said suits the suit in
O.S.No.7295 of 2002 was dismissed for non- prosecution
and a Miscellaneous Petition filed in Misc.Pet.No.850 of
2007 is pending for consideration."
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One of the conditions of compromise was withdrawal of suit in
O.S.Nos.7296 of 2002 and 7297 of 2002.
11. Challenging the said compromise, the Trust filed
R.F.A.No.154 of 2009. The said regular first appeal comes to be
withdrawn by filing a memo in terms of an order dated 11-11-2010.
A learned single Judge of this Court, on the memo, dismissed the
appeal as not pressed, by the following order:
"This Appeal is filed under Section 96 of the Code of Civil
Procedure challenging the judgment and decree dated
14.11.2008 made in O S No.496/2008 on the file of City Civil
Judge, Bangalore City. This Appeal is filed by appellant No.1
(defendant No.2). The Appellant No.2 is aged about 11 years
(defendant No.8) and appellant No.3/Trust is defendant No.1.
2. The vakalathnama in the Appeal is signed by appellant
No. 1 for self and on behalf of appellant Nos.2 and 3. The
appellant No.2 is a minor. M/s. M S Rajendra Prasad Associates
has filed power for appellant No.2 and the vakalathnama is
signed by Sri N Umesha, as a Court guardian. The guardianship
order is not produced. Today, Ms. Neetha H Y files power for
appellant Nos. 1, 2 and 3 with N O C given by Sri M.S.
Mukkarram.
3. Misc.Cvl. No. 14555/2010 has been med under Order 1
Rule 10 of C Petition C by the applicants-Masood and Masoom
Benefit Trust and Masood M Ali through Sri R B Naik Associates.
4. A memo dated 6.10.2010 has been filed by the
appellant in the Office. According to the memo, the appellant
prays for dismissal of the Appeal as not pressed.
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5. The appellant/Maqsood M Ali is present before the
Court. He is identified by Sri M S Mukkarram and the present
Counsel-Ms. Neetha H Y.
6. Since the Appeal is not pressed, there cannot be any
good ground to reject the memo.
7. Sri M S Rajendra Prasad, learned Senior Counsel,
appearing for respondent No.2/minor. submits that liberty may
be given to defendant No.2 to prefer the Appeal challenging the
impugned judgment and decree.
8. Since the Appeal itself is not pressed, the impleading
application registered as Misc.Cvl. No. 14555/2010 does not
survive for consideration.
9. In the result, the Appeal is dismissed as not pressed.
with liberty to the Court guardian of appellant No.2 to take
appropriate course of action, in the interest of appellant No.2, in
accordance with law. Accordingly. Misc. Cvl. No. 14555/2010 is
disposed off."
At paragraph-9 supra, the learned single Judge dismissed the
appeal as not pressed but granted liberty to the Court Guardian of
the 2nd appellant to take appropriate course of action, in the
interest of appellant No.2 in accordance with law. It is later, the
respondents pursued the miscellaneous application so filed on
2-11-2007 seeking recall of the order of the concerned Court
dismissing the suit for default.
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12. In the miscellaneous petition, it is the contention that the
plaintiffs themselves come before the Court and file a memo stating
that they are not interested in pursuing the matter. The memo
reads as follows:
"The petitioners beg to state as follows:
In view of the settlement of the dispute between the
petitioners and the respondents herein, as per the terms and
conditions of the compromise petition filed in O.S.No.496 of
2008 on the file of the Hon'ble City Civil Court at Bangalore, the
above petition has become infructuous.
WHEREFORE, the petitioners pray that this Hon'ble Court
be pleased to dismiss the above petition as not pressed, in the
interest of justice and equity.
Sd/- Advocate for Petitioner No.1.
Sd/- Petitioner No.1.
Sd/- Advocate for petitioner No.2
Sd/- Petitioner No.2
and also on behalf of petitioner No.3 who is minor
Bangalore.
Dated: 21-01-2011."
After the memo being filed, the learned counsel is said to be
pursuing the application seeking recall of the suit that had been
dismissed for non-prosecution. The application reads as follows:
"MEMORANDAM OF CIVIL MISCELLANEOUS PETITION
FILED UNDER ORDER IX RULE IV OF THE CODE OF CIVIL
PROCEEDURE.
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1) The petitioner above named humbly submit before this
honorable court that the address of the petitioners is as
shown in the cause title and the address of the counsel of
the petitioner is that of Sri M. S. Mukarram advocate
NO.8 3rd main Seshadaripuram, Bangalore - 560 020.
2) The address of the respondents/defendants is correctly
described in the cause title for the purpose of service of
this court notices, summons, process etc from this
honorable court.
3) The petitioners submit that the petitioners filed three
original suits bearing No.7295/2002, 7296/2002 and
7297/2002 two original suits No.7296/2002 and
7297/2002 were posted for trial in the CCH No.26 and the
original suit No.7295/2002 had been posted before this
honorable court the plaintiff filed the above suit bearing
O. S. No.7295/2002 against the defendants/respondents
for the consequential relief of declaration and possession
of the suit schedule properties briefly stated in the plaint
schedule of the suit, the plaintiff submit that in the above
matter the notices were served to the defendants and the
defendants filed their written statements and on the other
hand the plaintiffs filed I. Α. NO.I praying this honorable
court for restraining the defendants from alienating the
suit schedule properties the defendants also filed their
objections and the matter was heard on I. A. NO.1 and
this honorable court is pleased to allow the I. A. NO.1 and
passed an ad-interim order of injunction against the
defendants directing the defendants not to encumber or
alienate the suit schedule And the above matter was
posted for plaintiff properties evidence finally on 29-10-
2007.
4) The petitioners submit that this honorable court is
pleased to dismiss the above original suit on the ground
of non prosecution the petitioner humbly submit that the
reason for non appearance is not intentional, on the other
hand the petitioner is having utter most respect for this
honorable court the reason for not appearing on 29-10-
2007 is that the court appearing in the above case was
engaged before the 22nd ACMM IN CC NO.6195/2003.
Wherein the case was posted for the cross examination of
the complainant and on the other hand the court was
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passed NBW against the accused. The urgency shown 1
by the learned magistrate in the above matter was
unavoidable. The certified copy of the same is herewith
produced for kind perusal of this honorable court.
5) The plaintiff submit that the plaintiff filed a civil
miscellaneous petition before the Honorable Principal City
Civil Judge praying for the transfer of the other two
original suits bearing O. S. No.7296 and 7297/2002.from
court hall No.26 to this honorable court hall No.25, and to
be tried all the original suit in the one court hall in C. Misc
No.611/2006, the same is pending for final disposal
before the honorable principal city civil judge, the copy of
the same is produced for kind perusal of this honorable
court.
PRAYER
Wherefore it is humbly prayed before this honorable court that
the plaintiff is ready and bound to obey the order of this
honorable court it is also prayed by the petitioner before this
honorable court to set aside the order passed by this honorable
court dismissing the suit on the ground of non prosecution and
restore the above suit with cost in the interest of Justice and
Equity."
The learned counsel also places evidence by way of an affidavit in
support of Civil Miscellaneous No.850 of 2007. It reads as follows:
"AFFIDAVIT BY WAY OF EVIDENCE BY THE PETITIONER /
PLAINTIFF:
I Shri. M. S. MUKARRAM, Advocate No.472, 1st Floor, 6th
Main Road, Upper Palace Orchards', Sadavashiva Nagar
Bangalore 560 080. Do hereby solemnly affirm and state on
oath as follows:
1) I state that I am the advocate for the plaintiff
appearing in the above case I am well conversant of the facts
and circumstances of the above case.
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2) I state that the petitioner No.1 is the plaintiff No.1 and
the mother of the petitioner No.3 is the plaintiff No.2 who is a
formal plaintiff and the plaintiff No.3 is the petitioner No.3 in O.
S. No.7295/2002 the petitioners filed original suit for the relief
of declaration and possession against the defendants before this
honorable court in O. S. No.7295/2002.
3) I State that the above matter was posted for plaintiff
evidence on 29-10-2007.
4) I State that I engaged my junior advocate to pray for
adjournment in the above original suit. Since I was engaged
before 22nd ACMM in C.C.No.6195/2003 the same was posted
for cross examination of the complainant, the certified copy of
the same was produced before this Honorable Court.
5) I state that my junior advocate contacted me in 22nd
ACMM and stated that this Hon'ble Court imposed cost of
Rs.200/- Rupees Two Hundred I paid a Indian currency Note of
Rs.1000/- to get it changed in two hundreds and pay the cost
imposed by this Hon'ble Court accordingly my junior advocate
went to have change and to come before this Hon'ble Court. But
unfortunately the case was recalled again in the first round of
the court hours and this Hon'ble Court with a finding of non
prosecution dismissed the original suit.
6) I state that I filed the above miscellaneous petition on
02-11-2007 during the continuation of the miscellaneous the
first petitioner filed application under Order XXXII Rule 3 & 4 for
appointment of court guardian the same was marked as I.A.
No.3 and is allowed by this Hon'ble Court on 05-06-2009,
accordingly the advocate Mr. N. Umesha is appointed as the
court guardian.
7) I state that the 2nd plaintiff/petitioner also filed I.A.
No.4 under Order XXXII Rule 1 R/W sec 151 of the C. P. C. to
appoint her as court guardian Since she is the mother of the 3rd
petitioner is the natural guardian the same is Numbered as I.A.
No.4 and this Hon'ble Court is pleased to dismiss the same on
05-06-2009
8) I state that the non appearance of the counsel is not
intentional the petitioner/plaintiff shall not be put to irreparable
injury due to the mistake of the advocate.
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9) I state that the interest of the minor petitioner No.3 is
involved in the above miscellaneous suit along with the interest
of the petitioner No.1 the defendants/respondents will take
undue advantage of the dismissal of the original suit. This
petition is maintainable and filed with in time even notice of
restoration is not necessary, Notice after restoration for further
hearing is mandatory.
10. I state that I am ready to pay the cost as such
imposed by the honorable court. My absence on the date of
hearing of the original suit is not intentional I am having much
respect to this Honorable Court if the above application is
allowed no hardship or injury will be sustained to the
respondents on the other hand the petitioner will be put to
irreparable injury which can not be compensated by any means.
11) I declare that the averments made in accompanying
application para and supra are true and correct to the best of
my knowledge, information and belief.
WHEREFORE it is humbly prayed before this Hon'ble Court
to allow the above Miscellaneous Petition in the interest of
Justice and Equity."
13. The learned senior counsel has placed heavy reliance on
the memo that is filed before this Court, said to be by the
respondents herein. It reads as follows:
"MEMO
The 3rd Respondent herein submits before this Honourable Court
that he along with his uncle, Sri. Maqsood Ali who is the 1st
Respondent herein and his mother, Smt. Bilquees Maqdoom Ali
who is the 2nd Respondent herein had filed a suit bearing O. S.
No. 7295 of 2002 seeking for a declaration that they were the
absolute owners of the Suit Schedule Property therein and for
possession against the Petitioners herein with respect to various
survey numbers situated at Vasudevapura Village, Yelahanka
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Hobli, Bangalore North Taluk, Bangalore. It is submitted that the
3rd Respondent was a minor at the time of initiating the said suit
and that he was duly represented by his mother, the 2nd
Respondent herein, as his next friend.
The 3rd Respondent submits that when the suit in O. S. No.
7295 of 2002 was posted for evidence of the Plaintiff, the said
suit came to be dismissed for non- prosecution on 29.10.2007.
It is submitted that the Advocate appearing on behalf of the
Plaintiffs therein had, without our consent/instructions, filed a
Miscellaneous Petition bearing No. 850 of 2007 seeking to
restore the suit filed in O. S. No. 7295 of 2002 on 2.11.2007
and the same was pending consideration.
While things stood thus, the Petitioners herein had filed a suit
bearing O. S. No. 496 of 2008 against Maqsood and Maqdoom
Benefit Trust, Sri. Maqsood Ali who is the 1st Respondent herein
and his children, Smt. Bilquees Maqdoom Ali who is the 2nd
Respondent herein, the 3rd Respondent herein who was
represented by his mother as his next friend and others with
respect to various survey numbers situated at Vasudevapura
Village, Yelahanka Hobli, Bangalore North Taluk, Bangalore.
The 3rd Respondent submits that the suit in O. S. No. 496 of
2008 was compromised between the parties herein and all other
interested persons under a Compromise Petition on 21.01.2011.
It is pertinent to mention here that the 3rd Respondent herein
who was the 8th Defendant therein, was duly represented by his
mother, who was the 7th Defendant therein and the 2nd
Respondent herein, as his next friend.
It is pertinent to mention here that as per the terms and
conditions of the above compromise petition in O. S. No. 496 of
2008, it was agreed between the Parties therein that the dispute
between the parties in Mis. Pet. No. 850 of 2007 would be
withdrawn by the Respondents herein and a memo to that effect
was also filed by Sri. Maqsood Ali who is the 1st Respondent
herein, Smt. Bilquees Maqdoom Ali who is the 2nd Respondent
herein and the 3rd Respondent herein, represented by his
mother Smt. Bilquees Maqdoom Ali. However, the said memo
was rejected by the Learned Civil Judge and O. S. No. 7295 of
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2002 was ordered to be restored challenging which the
Petitioners have filed this present CRP.
The 3rd Respondent, who is a major now, submits that the
compromise arrived at in O. S. No. 496 of 2008 has been in his
interest. The 3rd Respondent submits that the Compromise in O.
S. No. 496 of 2008 has been acted upon for his welfare and that
he is reaping its benefit.
The 3rd Respondent submits that as a result of the Compromise
between all the interested persons in O. S. No. 496 of 2008, the
Mis. Pet. No. 850 of 2007 became infructuous. However, the
said Petition continued on the file of the Learned Trial Court by
Mr. M. S. Mukarram, Advocate without the authorization of the
Respondents herein and the said Petition was allowed on
31.03.2013. Hence, the present petition came to be filed before
this Honourable Court by the Petitioners herein.
The 3rd Respondent submits that he was duly represented by
his mother, who is the 2nd Respondent herein, as his next friend
and a compromise was arrived at in O. S. No. 496 of 2008
keeping his best interests in mind. The 3rd Respondent submits
that the Compromise in O. S. No. 496 of 2008 has been acted
upon for his welfare and that he is reaping its benefits. As such
the 3rd Respondent does not want O. S. No. 7295 of 2002 to be
restored.
Further, the 3rd Respondent submits that the 3rd Respondent
herein had filed a memo before this Honourable Court on
21.07.2017 and now prays before this Honourable Court to
dismiss the said memo in his interest.
The 3rd Respondent, who is a major now, submits before this
Honourable Court that he is fully aware of the facts of the case
and that he has no objection in allowing the present petition
filed by the Petitioners in the interest of justice."
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No signatures of the parties are found in the said memo. The
concerned Court allows the miscellaneous application by the
following order:
"ORDER
U/O 9 RULE 4 of CPC
The petitioners 1 to 3 pray for restoration of the
proceedings in O.S.7295/2002 after setting aside the dismissal
order dated 29.10.2007.
2. The case of the petitioners in brief is that, O.S.7295/02
came to be dismissed by this court on the ground of non-
prosecution on 29.10.2007. Their non-appearance on
29.10.2007 was on account of engaging of his advocate at 22nd
ACMM Court in CC. No: 6195/03 because of Inevitable
circumstance of cross examining the complainant therein. They
had filed the miscellaneous petition also before the Prl. Civil
Judge for getting transfer of other two connected cases
O.S.7296 and O.S.7297/02 to this court from CCH-26 for the
purpose of recording of common evidence in all the three cases
and the said transfer petition C.Mis.611/06 was also pending for
disposal. They had filed O.S.7296/02, O.S.7297/02 along with
O.S.7295/02. The said other two cases were pending in CCH-26.
If the dismissal order dated 29.10.2007 is not set aside, they
would be put to great hardship.
3. The respondent no.1 and 5 filed their objection
statement resisting the grounds made out in the petition
contending that the petition is not maintainable as the petition
is not signed by any of the petitioners. The petitioners have no
interest in prosecuting the case in the original suit and in this
petition. Engaging of petitioners advocate in 22nd ACMM Court is
not the ground as this court had given more than sufficient
opportunities already to the petitioners in the suit proceedings.
None of the petitioners represented and appeared in the suit
proceedings on any hearing dates. No notice in C.Mis.611/06 till
the date of the dismissal, was served on them though the
petitioners had filed transfer petition in 2006
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4. The respondent no.1, 4 and 5 further contend that
O.S.496/98 filed by them ended with the settlement in the
presence of the petitioner no.1, 2 and 3 who arrayed as
defendant no.2, 7 and 8 on 21.1.2011 and consequently, the
respondent no.5 executed two registered Deed of Conveyance
on the same day in favour of the petitioner no.1. The petitioner
no.2 also got the two registered Deed of Conveyance dated
3.4.2009 and 21.11.2010 in favour of herself. In continuation of
the compromise terms, the petitioner no.1, 2 and 3 had agreed
to get this miscellaneous petition dismissed as withdrawn. RFA
No:154/09 filed by the petitioner no.1 against the settlement
also came to be dismissed as not pressed vide order dated
11.11.2010 and Hence, this petition becomes infructuous and
liable to be dismissed as not maintainable under law.
5. The petitioner has been examined as PW1 relying on
Ex.P1 and P2 documents. The respondents have not adduced
any evidence though have cross examined the PW1.
6. Arguments of the learned counsels of both the sides
were heard.
7. The points that arise for my consideration are:
1. Whether the petitioners prove sufficient
cause for not appearing in the proceedings of O.S.
No:7295/2002 before this court on 29.10.2007?
2. Whether the petitioners are entitled to get
the restoration of the proceedings of said O.S.
No:7295/2002?
8. My answers to the above points are:
Point No.1-In the affirmative
Point No.2 In the affirmative
for the following:
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REASONS
Point No.1 & 2:
9. The averments made out in the petition, the contents
of Ex.P1 and P2 and the evidence of PW1 disclose that
O.S.7295/2002 filed by the petitioners as the plaintiffs against
the respondents / defendants was for the relief of declaration
and for taking possession of the plaint schedule properties. The
said suit was adjourned for recording of the evidence of
plaintiffs' side by imposing cost of Rs.200/- to 29.10.2007. On
29.10.2007, the case was called and absence of the advocates
for plaints, defendants no.1, 4 and 5 was noted with non-
payment of the imposed cost of Rs.200/- by the plaintiffs and
thereafter this court was pleased to dismiss the suit for non-
prosecution by the plaintiffs' side as supported by the certified
copy of the order sheet Ex.P1.
10. PW1 has produced the certified copy of the deposition
sheet of the complaint in C.C.No:6195/2003 of the 22nd ACMM,
Bangalore consisting of the cross-examination portion in support
of his contention that he was engaged in cross-examination of
his another client in 22nd ACMM on the same day and thereby
was unable to represent before this court in the proceedings of
O.S.No:7295/2002.
11. PW1 was the advocate appearing for the petitioners in
O.S.No:7295/2002 also. PW1 contends that affidavit evidence of
plaintiffs in the declaration suit was to be filed and the plaintiffs
were present in the court hall on 29.10.2007. He had engaged
his junior colleague to get adjournment on the ground of his
involvement in criminal case proceedings, by paying the amount
of cost also. As the interest of the minor petitioner no.3 was
involved, the petitioner no.2 had filed court guardian application
which came to be dismissed on 5.6.2009, in this miscellaneous
petition. As such, the fate of minor petitioner/plaintiff would be
put to hardship if this petition is not allowed.
12. In this proceeding, all the petitioners appeared on all
the effective hearing dates showing their interest in the
proceedings. The petitioner no.1 in his written arguments dated
13.8.2013 also requested for adopting the evidence of PW1 on
his behalf contending that the act of PW1 is competent and
23
sufficiently complied. None of them opposed the filing of this
petition. Both the petitioner no.1 and 2 are showing their
concern to the right of the minor petitioner, thereby, the
contention of the respondents that PW1 is not empowered to
seek the remedy in this petition for the petitioners cannot be
accepted.
13. The petitioners contend that they had filed other two
suits bearing No:O.S.No:7296/2002 and O.S.No:7297/2002
along with O.S.No:7295/2002 and because they were made
over to CCH-26, they were trying to get the transfer of those
cases to this court by filing Mis. Petition No:611/2006 before the
Prl. City Civil & Sessions Judge, Bangalore. The contention of
the respondents that they were not aware about the
proceedings of transfer petition Mis. Petition No:611/2006 till
filing of the present miscellaneous petition is not the ground to
deny the efforts being made by the petitioners to get the orders
of all the three cases from one court. It is not their case that
Mis. Petition No:611/2006 was not filed by the petitioners and
that it is not for their stated purpose.
14. The respondents though cross examined the PW1
have not been examined themselves before this court nor filed
any documentary evidence to discredit the evidence of the
petitioners side and hence, there is no reason to disbelieve the
grounds made out in the miscellaneous petition and the
evidence of PW1.
15. The further contention of the respondents is that in
view of the compromise entered into by the petitioner no.1 to 3
in their suit O.S.496/2008 on 21.1.2011 and execution of the
Deed of Conveyances thereafter in favour of the petitioners by
them, there is an obligation on the petitioners to get this
miscellaneous petition dismissed as withdrawn. The respondents
have furnished the copies of the proceedings of their
O.S.No:496/2008 and also the copies of Conveyance Deeds
executed subsequently in support of their contentions.
16. O.S.No:496/2008 filed by respondent no.1 and 5 with
other two persons against 28 defendants therein was for the
relief of declaration of 44 items of different plaint schedule
lands. The petitioners with other family and trust members were
some of the defendants. The right of each petitioners and the
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respondent no.2 and 3 to be calculated in the
O.S.No:7295/2002 filed by the petitioners and their claimed
right in this miscellaneous petition cannot be inferred/presumed
as decided. The counsel for the contesting respondents contend
that the petitioner no.2 and 3 were jointly allotted 3 acres of
land in the compromise memo and it shows that there is a need
for determining their right in the original suit which came to be
dismissed. Hence, the contention of the contesting respondents
that this petition becomes infructous in view of the involvement
of petitioners in their O.S.No:496/2008 cannot be accepted.
17. The counsel for the petitioners and the Court
Guardian appointed for minor petitioner no.3 filed their written
arguments relying on number of reported decisions.
18. The counsels for the petitioners and also the Court
Guardian/Advocate contend that suit cannot be dismissed for
non payment of cost and non payment of cost results in
forfeiture of rights to further prosecute the suit or the defence
as the case may be (2010 (1) SCC 53) and they are ready to
pay the cost to proceed further which makes them competent to
record their evidence.
19. The counsel for the petitioners argued that the
interest of the minor petitioner requires to be protected by the
court of law and to be agitated in accordance with law in the
concerned litigation.
20. In this miscellaneous proceedings, both the petitioner
no.1/uncle and 2/mother were insisting for permission to
represent the minor petitioner no.3 and the court was pleased
to appoint the Court Guardian on 5.6.2009 and in that
connection I.A.No:6 filed for review order is remained pending.
The pending I.A. No.7 is U/Sec.5 of Limitation Act filed with
I.A.No:6. Both the applications do not survive for consideration
as the main application is being disposed off with the favourable
order. The contesting parties can file similar application in the
original suit proceedings where the interest of the minor plaintiff
no.2 to be agitated. In this petition proceedings the grounds
urged is regarding non-prosecution of the case by the counsel
on technical ground also. Hence, no importance can be attached
to these I.As in this petition in view of the above discussions.
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21. As the right of the minor petitioner no.3 is being
contested against the petitioner no.1 and 2 namely the uncle
and mother of the minor petitioner, in order to safe guard the
interest of minor petitioner determination by the competent
court of law is required on the disputed issues. Such being the
case, the dismissal order passed by this court on the grounds
stated in the main petition requires to be restored by imposing
the cost on the contesting petitioners. In the result, I answer
the points no.1 and 2 in the affirmative and pass the following:
ORDER
The Mis. Petition No:850/2007 filed by the
petitioners under Order 9 Rule 4 of CPC is allowed
on cost of Rs.1,000/-.
The dismissal order dated 29.10.2007 in
O.S.No:7295/2002 is set aside.
O.S.No:7295/2002 is ordered to be re-
registered/restored on next hearing date.
Both the petitioners and the respondents
should appear in the restored case on the next date
of hearing."
The concerned Court records all the proceedings between the
parties and also observes that the present defendants were minors
at the time when petitioners 1 and 2 viz., the uncle and the mother
of the minor petitioners had entered into certain compromise. The
concerned Court holds that on the grounds set out in the
miscellaneous petition, the main petition requires to be restored
and decided on its merits.
14. It is not the case of any of the parties that miscellaneous
petition was preferred after a long delay. After the suit was
dismissed for default, immediately the miscellaneous petition is
preferred. It is no doubt true that several proceedings till filing of
the miscellaneous petition or after the miscellaneous petition have
taken place. This would not mean that the suit itself should not be
heard on its merits. This Court considered the revision petition
against an order recalling the order of dismissal of the suit for its
non-prosecution. The entire proceedings between the parties are
shrouded with seriously disputes questions of fact, as to whether
the compromise was entered into or otherwise or the rights of the
parties are determined or otherwise. Therefore, it becomes
necessary for the suit to be decided. This Court in exercise of its
revisional jurisdiction would not obliterate the suit itself, in a
challenge to allowing an application restoring the suit to be heard
on its merits. It is always open to the parties to agitate whatever
has been projected before this Court to be projected before the
concerned Court.
15. Heavy reliance is placed upon the fact that the Advocate
has filed an application seeking restoration of the suit and not the
parties. Plethora of submissions are made against the counsel
contending that it is the counsel who has filed the application
seeking recall and has led evidence and therefore, the proceedings
should be annulled. The submission of the learned senior counsel is
too farfetched. Whether the counsel has filed the application
without the consent or with consent; on the say or on perusal of
documents cannot be held that the Advocate has filed without the
consent of parties. All these are in the realm of seriously disputed
questions of fact.
16. It would have been altogether a different circumstance if
the application seeking recall had been preferred ages after the
disposal of the suit for its non-prosecution. While it is not the fact
that it is filed after a long delay, the application is preferred
immediately. Therefore, this Court would not telescope its
imagination to what has happened while filing the application
seeking recall and obliterate entire proceedings in O.S.No.7295 of
2002. The concerned Court has allowed the miscellaneous petition
by rendering cogent reasons. I do not find any perversity in the
reasons so rendered for this Court to interfere and obliterate the
suit itself.
17. For the aforesaid reasons, finding no merit, the petition
stands rejected.
The suit is of the year 2002. 23 years have passed by. This
revision petition is of the year 2014. For 11 years it has been
pending before this Court. Therefore, I deem it appropriate to
infuse finality into the proceedings. The concerned Court shall make
all endeavour to conclude the suit/proceedings within an outer limit
of six months from the date of receipt of a copy of this order.
Ordered accordingly. Pending applications, if any, also
stand disposed.
SD/-
(M.NAGAPRASANNA)
JUDGE
BKP
CT:SS
