Lokesh Babu vs S. Ziaulla
2026 Latest Caselaw 398 Kant

Karnataka High Court

Lokesh Babu vs S. Ziaulla on 22 January, 2026

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                                                          NC: 2026:KHC:3712
                                                       MFA No. 3263 of 2017


                    HC-KAR



                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 22ND DAY OF JANUARY, 2026

                                            BEFORE
                                THE HON'BLE MS. JUSTICE JYOTI M
                   MISCELLANEOUS FIRST APPEAL NO. 3263 OF 2017 (CPC)

                   BETWEEN:

                   1.     LOKESH BABU
                          AGED ABOUT 37 YEARS,

                   2.     L. SURESHA
                          AGED ABOUT 35 YEARS,

                   3.     L. MANJUNATHA
                          AGED ABOUT 33 YEARS,

                   4.     L. UMAPATHY
                          AGED ABOUT 32 YEARS,

                   5.     SMT. L. HEMAVATHY
                          AGED ABOUT 31 YEARS,

Digitally signed by 6.    SMT. L. VEDAVATHY
PREMCHANDRA M R           AGED ABOUT 29 YEARS,
Location: HIGH
COURT OF
KARNATAKA           7.    SMT. L. ASHA
                          AGED ABOUT 28 YEARS,

                          ALL ARE CHILDREN OF
                          A.C. LAKSHMANA MURTHY AND
                          RESIDING AT CHANNASANDRA VILLAGE,
                          KYALANOOR POST, VEMAGAL HOBLI,
                          KOLAR TALUK AND DISTRICT-563101.
                                                              ...APPELLANTS
                   (BY SRI. SANTHOSH, ADVOCATE FOR
                       SRI. VARADARAJAN M.S., ADVOCATE)
                                -2-
                                              NC: 2026:KHC:3712
                                          MFA No. 3263 of 2017


HC-KAR



AND:

1.   S. ZIAULLA
     AGED ABOUT 42 YEARS,

2.   S. SAMIULLA
     AGED ABOUT 39 YEARS,

     RESPONDENT NO.1 & 2 ARE
     SON OF SAMIULLA,
     RESIDING AT NO.1099,
     SAMIULLA BUILDING,
     DASTAGIR ROAD,
     VIJAYANAGAR,
     BENGALURU-560 016.
                                                 ...RESPONDENTS
(BY SRI. N.MAHENDRANATH, ADVOCATE FOR C/R1 & R2)

       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(c) OF THE CODE OF CIVIL PROCEDURE.


       THIS MISCELLANEOUS FIRST APPEAL IS LISTED FOR
ADMISSION, THIS DAY, THE JUDGMENT IS DELIVERED AS
UNDER:
                      ORAL JUDGMENT

Sri.Santosh., counsel on behalf of Sri.M.S.Varadarajan.,

for the appellants has appeared in person.

2. For convenience's sake, the parties shall be referred

to as per their status and ranking before the Trial Court.

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3. The plaintiffs filed suit in O.S.No.9648/2007 for the

relief of a declaration that the sale deed dated 17.10.1994

executed by their father in favour of defendant No.2 with

respect to the suit schedule property and the sale deed dated

02.11.2007, which defendant No.2 in turn executed in favour of

defendant No.3 and defendant No.4 with respect to the suit

schedule property are not binding on them. They also sought

other consequential reliefs.

4. The suit was posted for the plaintiff's evidence on

16.03.2011. On that day, the plaintiffs were not in a position to

appear in the Court and give evidence, and consequently, the

suit came to be dismissed for default.

5. The plaintiffs filed a Miscellaneous No.317/2013

under Order IX Rule 9 of CPC seeking restoration of the suit. As

there was a certain delay in filing the same, the plaintiffs also

applied Section 5 of the Limitation Act to condone the delay. In

the restoration petition, as well as in the I.A. for condonation of

delay, the plaintiffs stated the reasons as to why they could not

lead evidence in the original suit, how they were not aware of

its dismissal for default earlier, and how they did come to know

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of the same later. The affidavit filed in support of the delay

application also clearly stated when they came to know of the

dismissal of the suit, and stated as to how the delay deserves

to be condoned. The Trial Court dismissed the application for

condonation of delay and consequently the miscellaneous

petition. Under these circumstances, the plaintiffs have filed

this appeal on several grounds as set out in the memorandum

of appeal.

6. Counsel for the appellants presented several

contentions. Heard the arguments and pursued the papers with

care.

7. Whether the plaintiffs have made out grounds for

the restoration of a suit dismissed for default.

8. The application for restoration must be filed within

30 days of the dismissal order (under Article 122 of the

Limitation Act, 1963). It is observed that the suit was dismissed

in default on 16.03.2011, but the restoration application was

filed after a gap of nearly two years, which constitutes

inordinate delay and a lack of due diligence on the part of the

applicants. The plaintiffs have sought condonation of delay,

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citing their mother's hospitalization as the reason for their

inability to attend Court. However, this ground is demonstrably

false, as the medical discharge summary clearly indicates the

mother was admitted in 2012, long after the suit had already

been dismissed. Notwithstanding the filing of an urgent copy

application, neither the plaintiffs nor their counsel made any

efforts to follow up on or obtain the said copy until 2013. The

plaintiffs acted with gross negligence and failed to take the

necessary steps for the restoration of the suit on time.

9. Whenever plaintiffs request the restoration of the

suit, it primarily depends on satisfying the Court that there

was "sufficient cause" for their non-appearance on the date

fixed for the hearing. As no sufficient cause has been

demonstrated for this inordinate delay, the application deserves

to be rejected. The Trial Court is justified in rejecting the

petition.

10. The appeal is dismissed, and the Trial Court's

order is affirmed.