IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR CIVIL REVISION PETITION NO.36 OF 2013 Between:
1. Sri.Nanjundappa S/o late Nagappa, Aged about 50 years, 2. Sri. Narasappa S/o late Nagappa, Aged about 46 years, 3. Sri. Narayana Swamy S/o late Nagappa, Aged about 46 years, All are R/o Honnappanahalli, Manchenahalli Hobli, Gowribidanur Taluk, Chikkaballapur District-562101.
(By.Sri.Kempanna, Advocate) And:
Smt. Lakshmamma W/o late Thimmappa, Aged about 70 years, Honnappanahalli, Manchenahalli Hobli, Gowribidanur Taluk, …Petitioners Chikkaballapur District-562101.
Now Residing at:
C/o Lakshmamma W/o late Rangaswamy, Nandhi Village, Chikkaballapur Taluk & District.
Pin-562101. ...Respondent This CRP is filed under Section 115 of CPC, against the order dated 05.03.2012 passed in Misc.No.52/2007 on the file of Civil Judge (Sr.Dn.) and JMFC, Gauribidanur, dismissing the petition filed under Order 9 Rule 4 read with Section 151 of CPC.
This CRP coming on for final hearing, this day, the Court made the following:
O R D E R This Revision Petition arises out of the impugned order in Misc.No.52/2007 dated 05.03.2012 passed by the Prl. Civil Judge & JMFC, Gauribidanur, dismissing the petition filed by the petitioner under Order 9 Rule 4 read with Sec. 151 of CPC.
2. Aggrieved by the order passed against them in O.S.No:70/1997 filed by the respondent herein, the petitioners preferred an appeal in R.A.No.90/2002 before the Court below. The said appeal was dismissed for non- prosecution on 18.01.2006.
3. Pursuant thereto, the petitioners filed a Misc.
Petition No.14/2006 in the Court below under Order 41 Rule 19 read with Section 151 of CPC for setting aside the said order dismissing the appeal for default and for restoration of the said appeal in the same. The said Misc. Petition also came to be dismissed for non prosecution vide order dated 09.08.2007.
4. Aggrieved by the aforesaid order dated 09.08.2007 passed in Misc. Petition No.14/2006, the petitioner filed one more miscellaneous petition in Misc. Petition No.52/2007 in the Court below. Notice of this petition having been issued to the respondent, no objections were filed by her despite having engaged service of the counsel.
5. In order to establish their contentions, Plaintiff No.3 examined himself as PW1 and Ex.P1 and P2 were marked on his behalf. The respondent neither cross examined PW1 nor adduced any oral and documentary evidence. By the impugned order, the Court below proceeded to dismiss the said misc. petition filed by the petitioners.
6. Aggrieved by the same, the petitioners have preferred this revision petition. The sole respondent in this revision petition also having been served, she remained unrepresented and has not chosen to contest this revision petition also.
7. I have heard the learned counsel for the petitioners and perused the material on record. It is contended on behalf of the petitioners that the inability and omission on behalf of petitioner No.3 to appear before the Court below on 09.08.2007 and prosecute the Misc. Petition No.14/2006 was on account of his illness due to which a Doctor has advised him to take bed rest form 21.09.2007 to 10.10.2007. It is contended that, it was not possible for the 3rd petitioner to be present before the Court due to bonafide reasons, unavoidable circumstances and sufficient cause. As such, it was necessary that the order dismissing the petition is recalled and the petitioner is granted an opportunity to prosecute the petition on merits. It was further submitted that the Court below committed an error in failing to consider and appreciate the unimpeached, unchallenged & uncontroverted pleadings and evidence of the petitioners which clearly established that they had made out sufficient cause for not being present in the Court on the aforesaid date and as such, the petition filed by them deserves to be allowed.
8. A perusal of the impugned order clearly establishes that the Court below has misdirected itself in adopting very hyper technical approach in dismissing the petition filed by the petitioners. As rightly contended by the learned counsel for the petitioners, the Court below ought to have considered and appreciated the unimpeached & uncontroverted pleadings and evidence of the petitioners which clearly establishes that the petitioners have made out sufficient cause for their non- appearance on 09.08.2007 before the Court below.
9. It is well settled that the Rules of procedure should not be used as a tripping mechanism to deprive the parties of their valuables rights.
10. Under these circumstances, it is clear that the Court below has acted illegally and with material irregularity in exercise of it’s jurisdiction in passing the impugned order and the same requires interference by this Court.
11. In view of the aforesaid discussion, I pass the following:
:ORDER:
The civil revision petition is hereby allowed.
The Impugned Order dated 05.03.2012 in Misc.No.52/2007 passed by the Prl. Civil Judge & JMFC, Gauribidanur, dismissing the petition filed by the petitioner under Order 9 Rule 4 read with Sec. 151 of CPC is hereby set aside.
Misc. Petition No.14/2006 on the file of the Civil Judge (Sr.Dn.) and JMFC, Chickballapur is restored to file.
The Court below is directed to proceed further with the matter and dispose of the petition within the period of three months from 16.12.2019 on which day, the petitioners undertake to appear before the Court without further Court notice.
Ordered accordingly. No costs.
JS/-
Sd/- JUDGE