IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT C.R.P.No.68 OF 2018 BETWEEN 1. SMT. PUTTAMMA W/O LATE GOPALEGOWDA, AGED ABOUT 81 YEARS.
2. H.C.DASEGOWDA S/O LATE CHALUVEGOWDA, AGED ABOUT 75 YEARS.
3. SMT.SHAKUNTHALA W/O RAMAKRISHNEGOWDA AGED ABOUT 71 YEARS.
ALL ARE R/AT HOSAHUNDUVADI VILLAGE, KRS POST, BELAGOLA HOBLI, SRIRANGAPATNA TALUK-571 438 MANDYA DISTRICT.
(BY SRI.SRINIVAS.V, ADVOCATE) AND SMT. PUTTALAKSHAMMA W/O LATE CHANNEGOWDA, AGED ABOUT 71 YEARS, HOSAHUNDUVADI VILLAGE, KRS POST, BELAGOLA HOBLI, ... PETITIONERS SRIRANGAPATNA TALUK-571438 MANDYA DISTRICT.
... RESPONDENT THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 01.01.2018 PASSED ON I.A.NO.I IN MIS.NO.11/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT SRIRANGAPATNA, ALLOWING THE I.A.NO.I FILED UNDER SECTION 5 OF THE LIMITATION ACT, FOR CONDONATION OF DELAY IN FILING OF THE PRESENT MIS.PETITION FOR THE REASONS AS SET OUT IN THE AFFIDAVIT ANNEXTED TO THE APPLICATION.
THIS CRP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned Counsel appearing for the petitioners on merits as well as on the applications I.A. Nos.2/2018 and 1/2019.
2. The petitioners-defendants in O.S. No.77/2008 are before this Court assailing the order dated 1.1.2018 passed in Misc.No.11/2013 on the file of the Principal Civil Judge and JMFC, Srirangapatna. The plaintiff-respondent herein filed the aforesaid suit for partition and separate possession of the suit schedule properties. The suit came to be dismissed for non-prosecution on 25.8.2011. The plaintiff filed miscellaneous petition No.11/2013 under Order IX Rule 9 read with Section 151 of CPC praying to restore the suit. Along with the miscellaneous petition, she also filed I.A. No.1 under Section 5 of the Limitation Act praying to condone to the delay of 19 months in preferring the miscellaneous petition. The petitioners- defendants opposed the said miscellaneous petition as well as the application for condonation of delay by filing objections. Enquiry was held on the application. The petitioners-defendants aggrieved by the order by which the delay was condoned, are before this Court in this petition.
3. I.A. No.2/2018 is filed by the petitioners under Order VI Rule 7 of CPC to amend the revision petition by inserting additional grounds. In the application, additions grounds have been raised to the effect that the respondent-plaintiff has failed to assign the reasons for condoning the delay in preferring the miscellaneous petition. No material is placed to establish that the plaintiff was suffering from jaundice. Therefore, the trial Court was not right in allowing the application.
4. Learned Counsel for the petitioners submits that the trial Court has committed an error in allowing the application I.A No.1 filed under Section 5 of the Limitation Act. The respondent-plaintiff in the affidavit has stated that she was suffering from jaundice, however, no material was placed to establish that she was suffering from jaundice. In the circumstances, the trial Court ought to have dismissed I.A No.1 filed under Section 5 of the Limitation Act.
5. Under Order IX Rule 9 of CPC, the plaintiff can apply for setting aside of the dismissal order of the suit for non appearance of the plaintiff and the Court, if satisfies that there was sufficient cause for non appearance of the plaintiff on the date fixed for hearing, shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.
6. The respondent-plaintiff, in the instance case, has stated that she was unwell and suffering from jaundice. Due to which, she could not attend the Court regularly. When she met her advocate, subsequently, it came to her knowledge about dismissal of the suit. The suit is one for partition and separate possession of the suit schedule properties. No prejudice would be caused to the petitioners-
defendants, if the suit is allowed to be proceeded on merits especially, when it is for partition and separate possession. It is settled law that as far as possible endeavor of the Court shall be to advance the cause of justice and not to deny justice on technicalities. The Hon’ble Apex Court while considering Order IX of CPC in the case of ROBIN THAPA – vs – ROHIT DORA, (2019) 7 SCC 359, at para – 7, it is held as follows:-
“7. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.”
7. On going through the impugned order, I am of the view that there is no jurisdictional error or material irregularity in the order passed by the trial Court. Accordingly, the civil revision petition is rejected.
In view of rejection of the civil revision petition as above, I.A. Nos.2/2018 and 1/2019 do not survive for consideration and they are dismissed accordingly.
Sd/- JUDGE Cs/-
Ct-Dn