IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO. 7194 OF 2016 (CPC) BETWEEN Sri. Puttaraju, S/o K.N. Narasimaiah, Aged about 46 years, R/at No.5, Vidyapeeta Circle, BSK 1st Stage, Bangalore – 560 050. ... Appellant (By Sri. R.A. Devanand, Advocate) AND 1. Sri. V.R. Rajashekar, S/o Late Sri. V.S. Rangaiah Naidu, Aged about 49 years, R/at No. 23/A, Sri. Ganesha Mandiram Road, II Block, Tata Silk Farm, Thyagarajanagar, Bangalore – 560 028.
2. Smt. V.R. Shantha, D/o Late Sri. V.S. Rangaiah Naidu, And W/o Sri. C. Subramanya Naidu, Aged about 60 years, R/at No. 153, 22nd Main, Raghavendra Layout, Padmanabanagar, Bangalore – 560 010.
3. Sri. V.R. Manjunatha @ Babu, S/o Late Sri. V.S. Rangaiah Naidu, Aged about 56 years, R/at No.6, 6th “B” Main, 2nd Block, Tata Silk Farm, Thyagarajanagar, Bangalore – 560 028.
4. Smt. V.R. Jyamma, D/o Late Sri. V.S. Rangaiah Naidu, W/o Sri. G. Balasubramanya, Aged 46 years, R/at No. 69/B, 8th Main, 5th Cross, Hanumagiri Main Road, Chikkalasandra, Bangalore – 560 061.
5. Smt. V.R. Shantha, D/o Late Sri. V.S. Rangaiah Naidu, W/o Sri. Subramanya Naidu, Aged about 60 years, R/at No. 153, 22nd Main, Raghavendra Layout, Padmanabanagar, Bangalore – 560 070. ... Respondents (By Sri. Viswanatha Setty V., Advocate for C/R3 & for R1, R2 and R4.
R-5 deleted vide order dated 14.11.2017) This MFA is filed under Order 43 Rule 1(c) of the CPC, against the order dated 27.09.2016 passed in Misc.No. 585/2012 on the file of the XI Additional City Civil Judge, Bangalore, dismissing the petition filed to restore Misc. 223/2011.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondents.
2. This appeal is preferred by the appellant / petitioner aggrieved by the order passed by the XI Addl. City Civil Judge, Bangalore (CCH-8) dismissing Misc.No.585/2012. The said Misc.No.585/2012 was filed seeking to restore the order dated 4.7.2012 passed in Misc.No.223/2011 dismissing the same for non- prosecution. The appellant is said to have filed Misc.Petition No.223/2011 seeking to restore the suit in O.S.No.639/2004. The said miscellaneous petition was set down for the appellant / petitioner’s evidence on 4.7.2012. On the same day, the petitioner in person is said to have appeared before the Magistrate Court in C.C.No.14570/2007. The said criminal case was filed alleging that the petitioner had forged the agreement of sale, which is the suit document in O.S.No.639/2004.
Since the said criminal case came to be adjourned at 3.00 p.m., immediately he had appeared before the court which was conducting Misc.No.223/2011 and came to know that the said petition was dismissed for non-prosecution. The original suit in O.S.639/2004 was filed for specific performance of contract. In the said suit, the date of hearing was miscalculated by the petitioner as 23.02.2011 instead of 22.02.2011. Hence, when the original suit was taken up on 22.02.2011, he did not appear before the court and as a result there was no representation for the plaintiff and hence that suit too, came to be dismissed for non-prosecution. Both the original suit as well as the miscellaneous petition came to be dismissed for no fault of the petitioner, since his absence was not deliberate. The appellant though filed Misc.No.585/2012 seeking to restore the order passed in Misc.No.223/2011, the said petition came to be dismissed by the XI Addl. City Civil Judge, Bangalore. Hence, the present appeal has been filed by the aggrieved appellant seeking to set aside the order passed in Misc.Pet.No.585/2012 dated 27.09.2016 and consequently allow the present appeal.
3. The learned counsel for the petitioner Shri R.A. Devanand has taken me through the reasons assigned in the impugned order passed by the court below. The appellant got himself examined as PW-1 and got marked Exhibits P1 and P2. Further, he was also cross- examined by the respondent No.2 counsel. Whereas, on the side of the respondent, no evidence was led and ultimately, the court below on hearing the arguments on both sides and receiving the written argument, proceeded to pass orders on 27.09.2016 dismissing the miscellaneous petition, which is contrary to law, facts and probabilities.
It is the further contention of the learned counsel that the reason stated by the appellant in his Miscellaneous Petition at para-3 has been established by producing Exhibit P-2, which is the order-sheet maintained in C.C.No.14570/2007. The said document would establish the fact that the appellant was very much present before the Criminal Court in C.C.No.14570/2007 on that particular day when the Misc.Petition 223/2011 was taken up and dismissed for non-prosecution. Moreover, the court below has also failed to appreciate the fact that the appellant filed the suit in O.S.No.639/2004 against the original respondent to enforce his right under the said agreement to sell and hence, the dismissal of the miscellaneous petition would take away the right of the appellant under the said agreement. Hence, the court below, without even considering the genuine reason for his absence, has proceeded to dismiss the Misc. petition, which has resulted in serious prejudice to the appellant. In support of his case, the learned counsel for the appellant has also relied on a decision of the Apex Court in the case of SANGRAM SINGH VS. ELECTION TRIBUNAL KOTAH AND ANOTHER (AIR 1955 SC 425).
“ A code of procedure is a body of law designed to facilitate justice and further its ends, and should not be treated as an enactment providing for punishments and penalties. The laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
He further contends that before dismissing the Misc.petiton, the Judicial Officer has passed remarks on the counsel, which kind of observations require to be deprecated. In a suit filed by the plaintiff against the defendant, the rights of the parties have to be determined in accordance with law, on merits. Hence, the learned counsel contends that the appellant be provided an opportunity by allowing the appeal and setting aside the order in Misc.No.585/2012 dated 27.09.2016.
4. Per contra, the learned counsel for the respondents refuted the contentions of the counsel for the appellant and contended that it was the duty of the appellant to have appeared before the court below and addressed his case when the case was called up. Further, though sufficient opportunities were granted to the appellant before the court below on previous occasions, the appellant has not been diligent in appearing before the court and prosecuting his case, which has ultimately led to the dismissal of the misc.petition. as well as the original suit. Hence, the learned counsel for the respondents submits that the order passed by the court below needs no interference by this court.
5. On hearing the learned counsel for both the parties, I find that it is relevant to state that the suit in O.S.No.639/2004 was instituted by the plaintiff against the defendant for specific performance of an agreement of sale between the parties. The said suit was proceeded for adjudication and when it was set down for the evidence of the plaintiff’s side, it came to be dismissed for non-prosecution. In order to recall the said suit, Misc.No.223/2011 was filed by the plaintiff / appellant. The said Misc.No.223/2011 was listed for petitioner’s evidence on 4.7.2012. However, on the same day, the petitioner / appellant had to appear in person before the I Addl. CMM in C.C.No.14570/2007 and by the time he could reach the court hall to attend the case in Misc.No.223/2011, he came to know that the said misc. petition was dismissed for non- prosecution. The court below ought not to have dismissed the Misc.No.585/2012 which was filed seeking to recall the earlier order. It could have provided an opportunity to the appellant to address his case, by allowing the Misc. petition. Hence, I find that there has been a miscarriage of justice, which requires to be interfered with.
Audi alteram partem is considered to be a principle of fundamental justice or equity or principle of natural justice, which is required to be followed in all cases, which I find, has not been followed in the present case on hand. The rights of the parties require to be determined on merits, which is the object and scope of civil law and the Code of Civil Procedure has been designed to facilitate justice to the parties.
6. Viewed from any angle, I find that the order passed by the court below in Misc.No.585/2012 is not justified in law. Consequently, the impugned order passed by the court below requires to be set aside, in view of the reasons stated supra. Therefore, the appeal is hereby allowed and the order dated 27.09.2016 in Misc.No.585/2012 is hereby set aside. As a consequence, Misc.No.223/2011 which was filed seeking to restore O.S.No.639/2004 by recalling the order dated 22.02.2011, is also allowed. As a result, O.S.No.639/2004 is restored to file.
Since the suit is of the year 2004, the court below shall dispose of the same within a period of six months by affording an opportunity to both the parties to adduce oral as well as documentary evidence. Both the parties shall co-operate with the speedy disposal of the suit, without seeking for any undue adjournments. Both the parties are directed to appear before the concerned court where the case in O.S.No.639/2004 was pending, on 16.01.2019, without any further notice of hearing.
7. If any LCR is received in this appeal, the Registry is directed to return the same to the concerned court below, forthwith.
Sd/- JUDGE KS