IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.7335 OF 2015 (CPC) BETWEEN 1. N. Anand, S/o. Late S.Nagaraj, Aged about 47 years, 2. N.K.Sundar, S/o. Late S.Nagaraj, Aged about 41 years, 3. N.Arvind, S/o. Late S.Nagaraj, Aged about 41 years, All R/at No.28, 8th Cross, Venkatapura, Koramangala, Bengaluru-560034.
(By Sri. M.S.Varadarajan, Advocate) AND 1. Prakash, S/o. Late Appaiah, Aged about 60 years, 2. Srinivas @ Venkatesh, S/o. Late Appaiah, Aged about 55 years, …Appellants Both are R/at 8th Cross, Near Govt. School, Venkatapura, Koramangala Post, Bengaluru-560034.
3. Honnappa, S/o. Late M.Muniyappa, Aged about 63 years, Anil Nursery, Ayyappa Temple Street, Venkatapura, Koramangala Post, Bengaluru-560034.
4. Govindaraju, S/o. Late M.Muniyappa @ Appaiah, Aged about 62 years, No.152, 8th Cross, 1st Main Road, Near Eshwara Temple, Venkatapura, Koramangala Post, Bengaluru-560034.
5. Raghukumar, S/o. Narayanaswamy, Aged about 58 years, Anil Nursery, Ayyappa Temple Street, Venkatapura, Koramangala Post, Bengaluru-560034.
6. Narahari Rao, S/o. Late A Srinivasa Rao, Aged about 56 years, R/at No.28, 8th Cross, Venkatapura, Koramangala Post, Bengaluru-560034.
7. Venkoji Rao, S/o. Late A.Srinivasa Rao, Aged about 65 years, R/at No.28, 8th Cross, Venkatapura, Koramangala Post, Bengaluru-560034.
(By Sri. J.Prakash, Advocate, for R1 & R2 – Absent; R3-served; R4 to R7 - Notice dispensed vide order dated 19.11.2018)) …Respondents This MFA is filed under Order 43 Rule 1(c) of CPC against the order dated 24.03.2015 passed on I.A.No.1 in Misc. No.577/2012 on the file of the 24th Additional City Civil and Sessions Judge, Bengaluru City, dismissing I.A.No.1 filed under Section 5 of Limitation Act.
This MFA coming on for admission this day, the court delivered the following:
JUDGMENT In the morning session, when the case was taken up for the first time, at the instance of counsel for respondents 1 and 2, the case was passed over. Again at 2.30 PM when the case is taken up, counsel for respondents 1 and 2 is absent. Heard the appellants counsel.
2. The appellants have challenged the order dated 24.3.2015 passed by the XXIV Additional City Civil and Sessions Judge, Bengaluru, in Misc. No. 577/2012, a petition filed under Order IX Rule 9 of CPC for restoration of the suit O.S. 6740/2006. Since there was delay of 963 days in filing the said Miscellaneous Petition, the appellants also filed an application under section 5 of the Limitation Act seeking condonation of delay.
3. The appellants case is that their father and two younger brothers of their father filed a suit O.S.6740/2006 for declaration of their title and permanent injunction in respect of property bearing No.143/A, V.P.Katha No. 27, situated at Venkatapura Village, Begur Hobli, Bengaluru South Taluk. The appellants’ father was looking after the said case. After death of their father, the second plaintiff took charge of the case. The third plaintiff did not show any interest in prosecuting the suit. O.S.6740/2006 was dismissed for non-prosecution on 17.11.2009. The appellants state that they were not at all aware of the suit, and its dismissal on 17.11.2009 though they had been brought on record as legal representatives after the death of their father. They state that their uncle who was looking after the case did not inform them about the dismissal.
When they were brought on record in the suit as legal representatives of the first plaintiff, they had attained majority, but owing to their inexperience, the entire case was being looked after by the second plaintiff. They stated that their mother filed another suit O.S. 1543/2012 against respondent No.2 herein and he filed the written statement on 7.7.2012 taking up a contention that second suit is not maintainable in view of dismissal of earlier suit for declaration O.S.6740/2006. Then only the appellants came to know about the dismissal of O.S.6740/2006 and therefore they got filed Misc. No. 577/2012 seeking restoration of O.S.6740/2006.
4. The trial court held an enquiry on this miscellaneous petition. Second petitioner was examined as PW1. He produced two documents Exs. P1 and P2. The second respondent in the miscellaneous petition adduced evidence as RW1 and he produced two documents Exs.R1 and R2. On considering the evidence, the trial court rejected the stand of the petitioners that they were not aware of the dismissal of the suit O.S.6740/2006. It has assigned the reasons that when the petitioners were brought on record in the suit as legal representatives of the first plaintiff, it is highly impossible to believe what they say that they were not aware of the dismissal. It has referred to Ex.R2, the statement of objections filed by Sri. V.A.Venkatesh, second respondent, in a proceeding held before the Assistant Revenue Officer. In the said statement of objections it was contended that suit O.S.6740/2006 was dismissed. Finding that the statement of objections was filed on 15.2.2012 and the miscellaneous petition for restoration was filed on 16.8.2012, the trial court held that the reasons given by the petitioners about their not having knowledge cannot be believed.
5. Learned counsel for the appellants argues that actually the appellants were not at all aware of the suit and its dismissal for non-prosecution. Although it was a fact that they were brought on record as legal representatives of the first plaintiff, actually the entire case was looked after by their junior uncle, i.e., second plaintiff in the suit. The second plaintiff also did not inform them that the suit had been dismissed. The appellants came to know about the dismissal only when written statement was filed in O.S.1543/2012. The trial court’s conclusion that the appellants have not been able to explain delay is not sustainable. The earlier suit is for declaration and permanent injunction. Substantial interest of the parties is involved and therefore this appeal should be allowed and suit O.S.6740/2006 must be restored.
6. I have perused the impugned order and considered the points urged by the learned counsel for the appellants. It is not in dispute that the appellants were brought on record in O.S.6740/2006 as legal representatives of their deceased father. Though their assertion is that their junior uncle was looking after the case and therefore they were not aware of the suit and its dismissal for non-prosecution, Ex.R2 produced by the respondents shows that in a proceeding held before the Assistant Revenue Officer, second respondent V.A.Venkatesh filed statement of objections in which he stated about the dismissal of the suit. The said statement of objections was filed on 15.2.2012. If the appellants had shown diligence by filing a restoration petition soon after filing of statement of objections in the revenue proceeding, it could have been said that the trial court had not exercised discretion properly. But, the restoration petition was filed on 16.8.2012. There is no explanation for the delay in between the dates 15.2.2012 and 16.8.2012. Looked in this view, I do not find any merit in this appeal. Therefore, appeal is dismissed.
Sd/- JUDGE ckl