IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.18891/2017 (GM-CPC) BETWEEN:
1. SORAKE CHANDRA SHEKAR HOSPITAL PRIVATE LIMITED REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR DR. JEEVARAJ SORAKE S/O LATE SRI. S. CHANDRASHEKAR AGED ABOUT 67 YEARS UPPER BANDOOR MANGALURU-575 002 (DK).
2. DR. JEEVARAJ SORAKE S/O LATE SRI.S. CHANDRASHEKAR AGED ABOUT 67 YEARS HAVING OFFICE AT SORAKE CHANDRA SHEKAR HOSPITAL PRIVATE LIMITED UPPER BANDOOR MANGALURU-575 002 (DK) (BY SRI. M. SUDHAKAR PAI, ADVOCATE) AND:
DR.SHREYAS SORAKE S/O JAYA VIKRAM SORAKE AGED ABOUT 35 YEARS R/AT OPP. CANARA BANK KADRI, SHIVABAGH MANGALURU-575 002 (DK).
... PETITIONERS ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 18.8.2016 IN MISC. CASE NO.31/2014 ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC, MANGALURU D.K., (VIDE ANNEXURE-G TO THE W.P.) THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.M.Sudhakar Pai, learned counsel appearing for the petitioners. Perused the records.
2. Petitioner had filed a suit for possession against respondents in O.S.No.425/2014. Though respondents appeared, they did not file the written statement and as such, trial Court proceeded to consider the plea of plaintiffs and suit came to be decreed exparte on 29.11.2014. Respondents filed a miscellaneous petition for setting aside the exparte decree. Trial Court set-aside the exparte judgment and decree and restored the suit for being disposed of on merits.
3. It is the contention of Sri.M.Sudhakar Pai, learned counsel appearing for petitioners that there are certain inconsistencies in the miscellaneous petition and same has been ignored by the trial Court and as such, impugned order allowing the miscellaneous petition is liable to be set aside. He would contend that at paragraph 7 of the petition it has been mentioned that colleague of petitioner’s counsel had verified the Court Dairy to know as to whether judgment was pronounced on “06.12.2014” and had found no such entry, which presupposes that matter stood posted to 06.12.2014 for judgment and contradicts the contention raised in the petition. Hence, it is contended that inconsistencies are at large and prays for setting aside the impugned order.
4. Perusal of the impugned order would disclose that junior colleague of the learned Advocate appearing for defendant had entered the witness box as P.W.2. He has stated that he had noted the date of hearing as 06.12.2014 from 05.11.2014 though the actual date was 07.11.2014 and as such, there was no representation on 07.11.2014. Though there is a minor inconsistency with regard to phraseology used in paragraph 7 of the petition, that by itself is not a ground on which the entire evidence tendered by learned Advocate appearing for the petitioners was required to be rejected. As such, trial Court on all over appreciation of evidence tendered by the petitioner and his Advocate has accepted the plea or the cause for non appearance on the hearing date and as such, has set aside the exparte judgment and decree passed on 29.11.2014. There is no error committed by the trial Court calling for interference. I do not find any other good ground to entertain this writ petition. Hence, it is hereby rejected.
SD/- JUDGE DR