[Cites 5, Cited by 0]

Karnataka High Court

Amruth vs Kashappa S/O Babushetty Through His Lrs ... on 13 January, 2026

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                                                        NC: 2026:KHC-K:194
                                                   MFA No. 204177 of 2024


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                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                          DATED THIS THE 13TH DAY OF JANUARY, 2026

                                          BEFORE
                            THE HON'BLE MR. JUSTICE E.S.INDIRESH

                        MISCL. FIRST APPEAL NO.204177 OF 2024 (CPC)

                   BETWEEN:

                   SRI AMRUTH S/O BABUSHETTY,
                   AGED ABOUT 68 YEARS, OCC: AGRICULTURE,
                   R/O. VILASPUR VILLAGE,
                   TQ. AND DIST. BIDAR.
                                                               ...APPELLANT

                   (BY MISS. VAISHANAVI CHANDA, ADVOCATE APPEARED FOR
                   SRI RAVI B. PATIL, ADVOCATE)

                   AND:

                        SRI KASHAPPA S/O BABUSHETTY,
Digitally signed        DIED THROUGH HIS LRS
by LUCYGRACE
                        SHIVAKUMAR S/O KASHAPPA,
Location: HIGH
COURT OF
KARNATAKA
                        SHIVAKUMAR S/O KASHAPPA,
                        DIED THROUGH HIS LRS.,

                   1.   KAVERI W/O SHIVAKUMAR,
                        AGED ABOUT 40 YEARS, OCC: HOUSEHOLD,
                        R/O. KONE MELAKUNDA, TQ. BHALKI,
                        DIST. BIDAR-585 413.

                   2.   SHAKASHI D/O SHIVAKUMAR,
                        AGE: MINOR.
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                                             NC: 2026:KHC-K:194
                                       MFA No. 204177 of 2024


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3.   SHREYA D/O SHIVAKUMAR,
     BOTH U/G OF THEIR NATURAL MOTHER
     KAVERI W/O SHIVAKUMAR,
     BEING THE RESPONDENT NO.1
                                               ...RESPONDENTS

(V/O DTD. 05.11.2025, NOTICE TO R1 IS HELD SUFFICIENT;
R2 AND R3 ARE MINORS UNDER GUARDIAN OF R1)

     THIS MFA IS FILED UNDER ORDER XXXXIII RULE 1(t) OF
THE CPC , PRAYING TO, A) SET ASIDE THE IMPUGNED ORDER
DATED 04.07.2024 PASSED IN MISCELLANEOUS NO.27/2023
BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS
JUDGE, BIDAR, CONSEQUENTIALLY TO RESTORE THE M.A
NO.32/2020 FILED SEEKING TO RESTORE THE SUIT IN OS
NO.146/2012   BEING    DISMISSED    FOR   DEFAULT    ON
21.09.2016   BY    SETTING   ASIDE    THE   ORDER    IN
MIECELLANEOUS NO.1/2017 DATED 30.07.2020. B) PASS AN
ORDER AS TO COSTS OF THE PRESENT APPEAL. C) PASS SUCH
OTHER ORDER/S AS THIS HON'BLE COURT DEEMS FIT TO
GRANT IN THE CIRCUMSTANCES OF THE CASE.

    THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH


                      ORAL JUDGMENT

This appeal is preferred by the plaintiff in

O.S.No.146/2012, assailing the order dated 04.07.2024

passed in Misc.No.27/2023, on the file of the learned

Principal District and Sessions Judge at Bidar and to allow

M.A.No.32/2020 filed for seeking restoration of suit in

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O.S.No.146/2012, which came to be dismissed for default

on 21.09.2016 by setting aside the order in

M.A.No.1/2017.

2. For the sake of brevity, the parties in the

appeal shall be referred to in terms of their status and

ranking before the Trial Court.

3. It is the case of the plaintiff that the plaintiff

has filed suit in O.S.No.146/2012 against the defendants

seeking the relief of declaration in respect of the suit land

bearing Survey No.117, measuring 3 acres 16 guntas,

situated at Vilaspur village, Bidar taluk and district. The

said suit came to be dismissed for default on 21.09.2016

and upon being aggrieved by the same, the plaintiff has

preferred Misc.No.1/2017 under Order IX Rule 9 read with

Section 151 of the Civil Procedure Code (for short 'CPC')

for restoration of O.S.No.146/2012. In view of delay of 1

month 27 days, the said Misc.No.1/2017 came to be

dismissed on the ground of limitation. Feeling aggrieved

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by the same, the plaintiff has preferred M.A.No.32/2020

before the learned Principal District and Sessions Judge,

Bidar and the said appeal came to be dismissed on

07.12.2022 for default. Feeling aggrieved by the same,

the plaintiff has preferred this appeal.

4. Heard Miss Vaishanavi Chanda, learned counsel

appearing for the appellant. The respondents are served

and remained absent. Accordingly, notice to the

respondents is held sufficient.

5. Miss Vaishanavi Chanda, the learned counsel

appearing for appellant/plaintiff submitted that the plaintiff

has filed suit seeking the relief of declaration in respect of

the subject matter of the land in question and the

livelihood of entire family of the plaintiff is based on the

agricultural proceeds and in the event, if the default order

passed by the Trial Court is not properly assessed by this

Court, miscarriage of justice would be caused to the

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plaintiff and accordingly, sought for interference of this

Court.

6. In the light of the submission made by the

learned counsel appearing for the appellant/plaintiff, I

have carefully examined the averments made in the plaint

in O.S.No.146/2012, wherein, the plaintiff has sought for

declaration in respect of the land bearing Survey No.117,

measuring 3 acres 16 guntas of Vilaspur village, Bidar

taluk and district. It is also forthcoming from the appeal

memo that the plaintiff and defendants are related to each

other. It is also to be noted from the appeal memo,

wherein, the proceedings came to be dismissed for non-

prosecution on 21.09.2016 and thereafter, the plaintiff has

filed Misc.No.1/2017 under Order IX Rule 9 read with

Section 151 of CPC before the learned Principal Senior

Civil Judge and CJM, Bidar. In view of the fact that there

is a delay of 1 month 27 days in filing the petition in

Misc.No.1/2017, the competent Court vide order dated

30.07.2020 dismissed the application filed under Section 5

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of Limitation Act, consequently, the main petition came to

be dismissed. Feeling aggrieved by the same, the plaintiff

has preferred M.A.No.32/2020 on the file of the learned

Principal District and Sessions Judge, Bidar under Order

XLIII Rule 1(c) read with Section 104 of CPC. It is also

forthcoming from the order sheet, wherein, the said

appeal came to be dismissed on account of the absence of

learned counsel representing the plaintiff.

7. In the background of these aspects, by looking

into the relief sought for by the plaintiff in the plaint as to

the declaratory relief under Section 34 of the Specific

Relief Act, I am of the view that the Court below ought to

have construed the reasons assigned by the plaintiff

seeking restoration of the suit liberally as the livelihood of

the family is depending upon the proceeds of the land in

question. Though there is negligence on the part of the

learned counsel representing the plaintiff to represent the

matter and to take effective steps insofar as issuance of

notice to the respondents is concerned in M.A.No.32/2020,

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however, the Trial Court ought to have granted sufficient

time and as such, the appeal cannot be dismissed for

default. In view of the fact that the relief sought for by

the plaintiff is with regard to declaratory relief and in that

view of the matter, I find force in the submission made by

the learned counsel appearing for the appellant as to the

fact that a liberal construction has to be made to restore

the suit before the Trial Court.

8. Accordingly, I pass the following:

ORDER

I. The appeal is allowed. The order dated

04.07.2024 passed in Misc.No.27/2023 by the

learned Principal District and Sessions Judge,

Bidar is hereby set aside and the suit is restored

on file.

II. The order dated 30.07.2020 passed in

Misc.No.1/2017 by of the learned Principal

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Senior Civil Judge and CJM, Bidar is hereby set

aside.

III. The order dated 07.12.2022 passed in

M.A.No.32/2020 on the file of the learned

Principal District and Sessions Judge, Bidar is

hereby set aside.

IV. Taking into consideration the fact that the suit is

of the year 2016, the appellant/plaintiff is