IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.56143 OF 2018 (GM-CPC) BETWEEN:
K.R. VENKATASWAMY SINCE DEAD BY LRS 1. SMT. RATHNAMMA W/O LATE K.R. VENKATASWAMY AGED ABOUT 62 YEARS R/AT. No.14 & 15, 5TH CROSS DASARAHALLI, K.R. PURAM HOBLI BENGALURU SOUTH TALUK BENGALURU-560016.
2. SRI. MANJUNATH K.V.
S/O LATE K.R. VENKATASWAMY AGED ABOUT 43 YEARS R/AT. No.14 & 15, 5TH CROSS DASARAHALLI, K.R. PURAM HOBLI BENGALURU SOUTH TALUK BENGALURU-560016.
(By Mr. M. PRETHAM, ADV., FOR Mr. SHARATH N, ADV.,) AND:
1. SMT. B. SHANTHALAKSHMAMMA W/O LATE B.R. RADHAKRISHNA MAJOR, R/AT. No.486, 2ND CROSS 2ND BLOCK, BSK I STAGE BENGALURU-560050.
2. SRI. B.R. VISHWESWARA S/O LATE B.R. RADHAKRISHNA AGED ABOUT 54 YEARS … PETITIONERS R/AT. No.486, 2ND CROSS 2ND BLOCK, BSK I STAGE BENGALURU-560050.
3. SRI. LAKSHMAN S/O LATE VENKATASWAMY MAJOR, R/AT. No.87, 2ND MAIN 6TH CROSS, MARUTHINAGAR YELAHANKA, BENGALURU-560064.
4. SRI. RAMESH S/O LATE VENKATASWAMY MAJOR, R/AT. No.87, 2ND MAIN 6TH CROSS, MARUTHINAGAR YELAHANKA, BENGALURU-560064.
(By Ms. NAYANA TARA B.G. ADV., FOR … RESPONDENTS Mr. G.L. VISHWANATH, ADV., FOR R1 & R2) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 1.12.2018 PASSED IN R.A.NO.205/2012 PASSED BY THE VIII ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL AT BENGALURU AT ANNEX-D BY ALLOWING THE PETITIONER TO CONTEST THE R.A.NO.205/2012 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.M.Pretham for Mr.Sharath N., learned counsel for the petitioner.
Mr.Nayana Tara B.G. for Mr.G.L.Vishwanath, learned counsel for the respondent Nos.1 & 2.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 01.12.2018 by which application preferred by the petitioner under Order IX Rule 7 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been rejected.
4. Facts giving rise to filing of the petition briefly stated are that the petitioners herein filed an application under Order IX Rule 7 read with Section 151 of the Code seeking to recall the order dated 10.11.2017 placing him exparte, the Hon’ble Appellate Court rejected the said application without appreciating the contention of the petitioners and posted the matter for judgment. In the aforesaid factual background, this petition has been filed.
4. When the matter was taken up today, learned counsel for the respondent submitted that she has no objection to the petition being allowed. However, the Trial Court be directed to decide the appeal in a time bound manner.
5. In view of the aforesaid submission and taking into account the fact that the impugned order is a cryptic order and suffers from vice of non-application of mind as well as the submission made by the learned counsel for the respondent that the impugned order dated 01.12.2018 is not a speaking order, the same is hereby quashed and set aside and the application is allowed. The Appellate Court is directed to decide the appeal within a period of one month from the date of receipt of certified copy of the order passed today.
Accordingly, petition is disposed of.
Sd/- JUDGE SS