IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. No.9471 OF 2012 (CPC) BETWEEN:
N.S.Nagendra Gupta, S/o. Subbaramaiah N.R.N, Aged about 74 years, No.361, 4th B Cross, II Main, 3rd Stage, 3rd Phase, 5th Block, Banashankari, Bengaluru-85. …Appellant (By Sri. Ramesh P Kulkarni, Advocate) AND:
K.S. Nagendra Prasad, S/o. late K.R.Sathyanarayana, Aged about 64 years, Swarna Building, 1st Floor, T.N.Setty Lane, Avenue Road Cross, Bengaluru-560 002. ...Respondent (By Sri. S.Srinivasa Murthy, Advocate & Sri. S.Krishna Murthy, Advocate) This Miscellaneous First Appeal is filed under Order 43 Rule 1(c) of CPC, against the order dated 23.06.2012 passed in Misc.No.555/2009 on the file of the III Additional City Civil Judge, Bengaluru, dismissing the petition filed under Order 9 Rule 8 and 9 read with Section 151 of CPC, to set aside the judgment and decree dated 22.06.2009 passed in O.S.No.3913/2002 and etc., This appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT This appeal is filed for setting aside the order dated 26.03.2012 passed in Misc.No.555/2009 on the file of the learned III Additional City Civil Judge, Bengaluru.
2. The facts leading to this appeal are that the appellant is the plaintiff in O.S.No.3913/2002. The suit was filed for declaration and injunction. The suit was dismissed for non-prosecution on 22.06.2009. The appellant had preferred miscellaneous for restoration of the suit which was numbered as Misc.No.555/2009. The said miscellaneous came to be dismissed as per order dated 23.06.2012. Being aggrieved by the said order, the appellant is before this Court.
3. It is the case of the petitioner that in Misc.No.555/2009, the appellant had led evidence of the plaintiff/petitioner narrating the reasons for non-appearance before the trial Court in original suit proceedings. It was specifically stated that the appellant was suffering from ‘chikanguniya’ as such, he was unable to move around and attend the Court proceedings. In order to substantiate his contention regarding the health problem, the petitioner had produced the medical prescriptions, certificates which are marked as Ex.P3 and P4, but the Court below brushed aside the said documents on the reason that the duration of his ill-health and the consequences of the ill-health are not mentioned in the said certificates. The Court had also observed that if the petitioner was suffering from frequent pains in his legs, he could have produced the documents namely, X-rays, physiotherapy documents of diagnostic centre etc., to show the seriousness of pain in his legs.
4. The learned counsel for the appellant strenuously contended that despite production of the medical certificate in support of the health problems faced by the appellant, the Court was reluctant to consider the said documents, thus it has resulted in miscarriage of justice and the appellant has been deprived of an opportunity to seek justice.
5. In support of his contention, he has relied on a decision reported in (2002) 2 Kant LJ 314 (G.K.Balakrishna v/s H.Venkateshappa) in paragraph 8 it is held as under:
“8. It appears that no contra-evidence was let in by the respondent and the matter was not contested very seriously on the aspect of allowing of the miscellaneous application. The fact that the petitioner suffered certain illness and had been hospitalised and had to undergo treatment of certain days are not in dispute. When prior to the date of letting in of the evidence of the plaintiff i.e., earlier to 23-10-1997, the plaintiff in fact had suffered certain illness and because of it his normal activities had been disrupted. Plaintiff cannot be put to or held to strict punctuality to hold that technically that the plaintiff was hale and healthy on 23-10-1997. An illness can leave a person with many disadvantages and the fact is that the plaintiff was suffering from the effects of illness as on 23-10-1997. Therefore, the Trial Judge has definitely committed a material irregularity in not considering the application in its proper perspective. On a totality of the circumstances the application deserves to be allowed. For this the defendant-respondent can be suitably compensated by awarding costs for allowing the application for condonation of delay and afford an opportunity to the parties to lead evidence.”
6. In view of the principle laid down in the aforesaid decision, it is clear that the illness can compel the person undergo suffering and puts him in disadvantageous position. In all circumstances, one cannot expect the medical certificates or medical records. In the instant case, the health problem suffered by the appellant was ‘chikanguniya’ and the appellant is aged about 70 years. The basic feature of ‘chikanguniya’ is that the patient will suffer severe pain for several months and for that reason, it is not necessary to take X-ray or approach any other diagnostic center. Sometimes, even physiotherapy will not give relief for the patients who have suffered ‘chikanguniya’.
7. In the instant case, the Court below has lost sight of health problems faced by the appellant. It is pertinent to know that the appellant had led the evidence before the trial Court and he has not been cross-examined and on the contrary no cogent evidence was placed by the respondent to disprove the contentions of the appellant. Even in the present M.F.A, this Court had no opportunity to hear the arguments of the learned counsel for the respondent.
8. In view of the grounds urged and submission of the learned counsel, there are valid grounds for setting aside the impugned order dated 26.03.2012 passed in Misc.No.555/2009 on the file of the learned III Additional City Civil Judge, Bengaluru. Accordingly, I pass the following:-
ORDER Miscellaneous First Appeal is allowed.
Impugned order dated 26.03.2012 passed in Misc.No.555/2009 on the file of the learned III Additional City Civil Judge, Bengaluru is set aside.
Sd/- JUDGE RB