Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.556/2018 BETWEEN:
SRI D VENKANAGOWDA S/O RUDRAGOUDA AGED ABOUT 77 YEARS OCC: SOCIAL SERVICE R/O NEAR SHANKAR MATTA HOSPET ROAD HARAPANAHALLI-583131 DAVANAGERE DISTRICT. ... PETITIONER [BY SRI D VENKANAGOWDA, ADV., PARTY-IN-PERSON] AND:
MR. ATHAUR RAHAMAN S/O KHALIL RAHAMAN AGED ABOUT 38 YEARS OCC: BUSINESS R/O 4TH WARD, PATANAGERI HARAPANAHALLI-583 131 DAVANAGERE DISTRICT. ... RESPONDENT [V/O DT:30.10.2019 SERVICE OF NOTICE H/S] THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 18.09.2018 PASSED ON IA NO.5 IN OS NO.32/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC., HARAPANAHALLI REJECTING THE IA NO.5 FILED UNDER ORDER 9 RULE 8 R/W SECTION 151 OF CPC., FOR DISMISSING THE SUIT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner, who is defendant in O.S.No.32/2018 on the file of Civil Judge (Junior Division) and JMFC, Harapanahalli, is before this Court assailing the order dated 18.09.2018 passed on I.A.No.5 filed under Order IX Rule 8 of CPC praying to dismiss the suit.
2. The petitioner is defendant and respondent is plaintiff in O.S.No.32/2010 filed for permanent injunction.
3. For the sake of convenience, the parties would be referred to as per their ranking before the Court below.
4. Admittedly the suit is at the stage of framing of issues. The defendant/petitioner herein filed I.A.No.5 under Order IX Rule 8 of CPC praying to dismiss the suit as the plaintiff nor his Advocate continuously remained absent before the Court. In the application it is stated that as the plaintiff has remained absent, proceeding with the suit in the absence of plaintiff would cause prejudice to the interest of the defendant. The trial Court considering the said application under impugned order rejected the same holding that the suit is at the stage of framing of issues and it is not yet posted for evidence. Challenging the said order the defendant is in revision in this petition under Section 115 of CPC.
5. Heard the petitioner – party-in-person. He submits that the Court below failed to exercise its jurisdiction vested in it. He submits that the plaintiff remained absent continuously and in the absence of the plaintiff, the Court is proceeding with the suit. He submits that when the plaintiff remains absent the Court has to exercise its discretion under Order IX Rule 8 of CPC to dismiss the suit.
6. The suit is one for permanent injunction. The defendant has appeared and filed written statement. The suit stands at the stage of framing of issues. The defendant filed application under Order IX Rule 8 of CPC praying to dismiss the suit on the ground that the plaintiff has continuously remained absent. The trial Court rejected the application on the ground that the suit is at the stage of framing of issues and the suit is not yet ready for hearing. Order IX Rule 8 of CPC provides for dismissal of suit where the defendant appears and the plaintiff does not appear when the suit is posted for hearing. As stated above suit is at the stage of framing issues, which the Court has to frame. The suit is neither posted for evidence nor for arguments. Order IX Rule 8 of CPC reads as follows: “Procedure where defendant only appears— Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.”
The word hearing used in the above provision would normally mean that the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. The hearing of the suit comes after the framing of the issues and when the suit is posted for trial. The Hon’ble Apex Court in a case reported in (2012) 4 SCC 307, KANWAR SINGH SAINI V. HIGH COURT OF DELHI has held at Paragraph 12 as follows:
“12. The suit was filed on 26-4-2003 and notice was issued returnable just after three days i.e on 29-4-2003 and on the date the written statement was filed and the appellant appeared in person and his statement was recorded. Order 10 Rule 1 CPC provides for recording the statement of the parties to the suit at the “first hearing of the suit” which comes after the framing of the issues and then the suit is posted for trial i.e for production of evidence. Such an interpretation emerges from the conjoint reading of the provisions of Order 10 Rule 1, Order 14 Rule 1(5) and Order 15 Rule 1 CPC. The cumulative effect of the above referred provisions of CPC comes to that the “first hearing of the suit” can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. On the date of appearance of the defendant, the court does not take up the case for hearing or apply its mind to the facts of the case, and it is only after filing of the written statement and framing of issues, the hearing of the case commences. The hearing presupposes the existence of an occasion which enables the parties to be heard by the court in respect of the cause. Hearing, therefore, should be first in point of time after the issues have been framed.”
In view of the above discussion, I find no error or illegality in the order passed by the trial Court. Thus no ground is made for interference. Accordingly revision petition is rejected.
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