IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.7462 OF 2017 (CPC) BETWEEN:
S.RAVI, AGED ABOUT 55 YEARS, S/O H.R.SONAPPA, R/AT NO.24, 1ST CROSS, RAJAPPA BLOCK, J.C.NAGAR, BENGALURU – 06. …APPELLANT (BY SRI.RAVI L VAIDYA, ADVOCATE) AND:
1. SRI VISHWANATH SHETTY, S/O LATE NARAYAN SHETTY, AGED ABOUT 39 YEARS, R/AT NO.14, OLD NO.36/1, MANJUNATH SWAMY NILAYA, 21ST CROSS, NAGASANDRA POST, BAGAL KUNTE, BENGALURU – 73.
2. SMT.HANUMAKKA, W/O GANGAHANUMAIAH, AGED ABOUT 68 YEARS, R/AT NO.57, 5TH CROSS, 7TH MAIN, LAKSHMINARAYANAPURAM, BENGALURU – 21. ...RESPONDENTS (BY SRI.PRAKASH SHETTY AND SRI KEERTHI SHETTY FOR R1) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(c) OF THE CPC, AGAINST THE ORDER DATED 17.08.2017 PASSED ON IA NO.6 IN O.S.NO.1386/2014 ON THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING IA NO.6 FILED UNDER ORDER 9 RULE 9 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, with the consent of the learned counsel for the appellant and respondent No.1, the matter is heard finally.
2. Heard the counsel for the appellant and respondent No.1. Respondent No.2 is unrepresented.
3. This appeal is filed for setting aside the order dated 17.08.2017 on IA 6 in O.S. No.1386/2014.
4. It is the case of the appellant that he had filed O.S. No.1386/2014 for specific performance of agreement of sale. After framing of the issues the case was posted for plaintiff’s evidence on 1.3.2017 and it was adjourned to 13.6.2017. Thereafter once again it was adjourned to 17.08.2017. In the meanwhile, the matter was settled out of Court. Hence the plaintiff intended to withdraw the suit. Therefore on 17.8.2017 the plaintiff appellant sought for an adjournment, but the trial Court rejected the prayer made for adjournment and dismissed the suit for non prosecution. On the same day i.e., on 17.8.2017 the plaintiff filed an application I.A. No.6 under Order 9 Rule 9 CPC for restoration of the suit by setting aside the order of dismissal for non prosecution with the categorical submission that the plaintiff intends to withdraw the suit and seeking for refund of the Court fee. But the trial Court without appreciating the prayer made by the plaintiff rejected the application. Being aggrieved by the said order the appellant is before the Court.
5. The only grievance of the appellant is that he was unable to lead the evidence on 17.8.2017. The counsel for the plaintiff was out of station. When the prayer for adjournment was rejected, on the same day I.A.No.6 was filed for restoration of the suit as the plaintiff intended to withdraw the suit and seek for refund of Court fee. But the court below has rejected the suit.
6. As could be seen from the order sheet the suit was of the year 2014. The suit was posted for plaintiff’s evidence on 13.06.2017 and thereafter it was adjourned to 17.08.2017. On the said day the prayer for seeking adjournment was rejected as the adjournment cost was not paid and the suit of the plaintiff was dismissed for default. It is pertinent to note that on the same day the application under Order 9 Rule 9 CPC was filed for restoration of the suit.
7. In view of the submission of the counsel it is evident that the plaintiff intended to withdraw the suit. In the memorandum of facts the counsel has stated that the matter is settled out of Court and the plaintiff intends to withdraw the suit on 19.8.2017. But the Court below has not considered the said submission.
8. In view of the dismissal of the IA 6 filed under Order 9 Rule 9 the plaintiff appellant has been deprived of an opportunity to seek refund of court fee and withdrawal of the suit on account of settlement When a specific reason was assigned regarding withdrawal of suit on the ground of settlement, the court below could have given one more opportunity. Hence, there are valid grounds for setting aside the order dated 17.8.2017 passed on IA No.6.
9. Accordingly, the appeal is allowed. Order dated 17.08.2017 passed on I.A. No.6 in O.S.
No.1386/2014 on the file of the Principal City Civil and Sessions Judge, Bengaluru, rejecting I.A. 6 filed under Order 9 Rule 9 of CPC is set aside.
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JUDGE ykl