IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 27355 OF 2016 (GM-CPC) BETWEEN:
1. S. SUNDARARAJAN, AGED 55 YEARS, S/O LATE C SUBRAMANYA, 2. SMT. N. YASHODA, AGED ABOUT 53 YEARS, W/O NATARAJAN, R/AT NO.8,NEW AGRAHARAM, KOSEPET,VELLORE.
3. S. KUMARESHAN, AGED ABOUT 46 YEARS, S/O LATE SUBRAMANYAN, 4. S.SATISH KUMAR, AGED ABOUT 44 YEARS, S/O LATE SUBRAMANYAN, 5. S.BABU, AGED ABOUT 41 YEARS, S/O LATE SUBRAMANYAN, PETITIONERS NOS. 1,3,4 & 5 ARE R/AT DOOR NO.3/1, 3RD MAIN ROAD, MEDARS BLOCK, NEW BAMBOO BAZAAR, MYSORE-570021.
(BY SRI. VIVEKANANDA T P, ADVOCATE) AND:
SMT. GOWRAMMA AGED ABOUT 56 YEARS S/O VARADA NAYAK R/AT KUNIGAL GRAMA PANDAAPURA HOBLI, H.D.KOTE TALUK, MYSORE DISTRICT. (BY SRI. SANGAMESH R B, ADVOCATE) … PETITIONERS … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.7.2014 ON I.A.NO.7 IN O.S.137/2007 PASSED BY THE CIVIL JUDGE (Jr.Dn) AND JMFC, H.D.KOTE AT ANNX-D AND ALLOW I.A.NO.7 AT ANNX-B AND QUASH THE ORDER DATED 06.11.2015 IN M.A.NO.25/2014 PASSED BY THE CIVIL JUDGE (Sr.Dn) AND JMFC AT HUNSUR AT ANNX-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the plaintiffs in O.S.No.137/2007 and the appellants in M.A.No.25/2014 are invoking the writ jurisdiction of this Court for laying a challenge to the order dated 06.11.2019 whereby, their M.A. was dismissed affirming the order dated 28.07.2014 by which the suit was dismissed for non-prosecution. These orders are respectively at Annexures F & B. After service of notice respondent having entered appearance through her counsel, opposes the writ petition.
2. Having heard the learned counsel for the petitioner and the learned counsel for the respondent, and having perused the writ petition papers, this Court is of the considered opinion that relief needs to be granted to the petitioners of course, subject to payment of cost, because:
(i) the suit in O.S.No.137/2007 is for a decree of permanent injunction; after service of suit summons, the defendants have entered appearance and have resisted the suit; several applications were filed during the pendency of the suit; the suit having been dismissed for non- prosecution on 21.07.2014, the trial Court has dismissed the applicaton in IA No.7 for restoration of the suit vide order dated 28.07.2014;
(ii) the impugned order dismissing the suit mentions about non-appearance of the plaintiff on the previous pre- hearing dates; what happened in the previous dates is ordinarily not relevant, what is relevant being the cause of absence on the day when the suit came to be dismissed; thus there is legal lacuna in the impugned order which the First Appelate Court also failed to see in the petitioner’s M.A. and, (iii) the application for restoration of dismissed suit ordinarily needs to be supported by a narrative affidavit, is true; however, one of the exceptions to this general rule is the filing of the Memorandum of Facts by the counsel who has personal knowledge of what is stated in the Memorandum; no reasons are assigned by the Courts below as to why this aspect of the matter should not govern the case; in any circumstance, restoration of the suit that was dismissed for non-prosecution is a rule and non-restoration is an exception into which case of the petitioners does not fit.
In the above circumstances, this writ petition succeeds; impugned orders are set at naught; the suit of the petitioners in O.S.No.137/2007 is restored to the Board of the trial Court; petitioners shall pay a cost of Rs.3,000/- to the respondent within a period of one month; failing which, the orders now quashed shall stand resurrected.
Sd/- JUDGE Bsv