IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR M.F.A. NO.7910 OF 2016 (CPC) BETWEEN:
SRI SHABIR AHMED S/O. BAHADUR SAB AGED ABOUT 38 YEARS R/AT NO.1019, KALAIPET 1ST CROSS, BEHIND ANJUMAN BUILDING KOLAR – 563 101 AND:
... APPELLANT (BY SRI CHANDRA MOHAN J.G., ADVOCATE) SRI K.N. MUNIKRISHNA S/O. LATE NARAYANAPPA AGED ABOUT 39 YEARS R/AT KILARIPET KOLAR – 563 101 ... RESPONDENT (BY SRI VEERANNA G. TIGADI, ADVOCATE) *** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER XLIII RULE 1 (C) R/W SECTION 151 OF CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE ORDER PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, KOLAR IN MISC. NO.2/2016, DATED 05.10.2016 AND TO ALLOW THE SAME.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for appellant.
2. Though the matter is called out in the morning session and also for the second time at 3.00 PM, none appears for the respondent.
3. This appeal is filed by the appellant herein aggrieved by the order dated 5th October 2016 passed by the Principal Senior Civil Judge at Kolar in Misc. No.2/2016, thereby dismissing the petition filed under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908.
4. It is the case of the appellant that the suit was filed by the respondent for recovery of money, which was decreed on 18th July 2014, placing the appellant herein as exparte. Aggrieved by the said exparte judgment, the appellant herein preferred Misc. Petition No.27 of 2014. The said Misc. Petition came to be dismissed for non- prosecution on 7th December 2015. Aggrieved by the said dismissal, the appellant herein preferred another Misc. Petition No.2 of 2016, which was filed on 6th January 2016. The said Misc. Petition also came to be dismissed after contest and leading evidence on 5th October 2016. The appellant is before this Court challenging the correctness and validity of the said order.
5. It is the case of the appellant that in the original suit in OS No.82 of 2014 the appellant was placed exparte and he was not aware of the suit filed by the respondent. It is the case of the appellant that he was not served with the summons in the original suit and hence he had no knowledge of the proceedings. Therefore, he was not able to appear before the Court. Thereafter, within a period of three months the appellant came to know of the judgment in the original suit, he preferred a Misc. Petition No.27/2014 for restoration of the original suit on the ground that his Lawyer was not present in the Court due to his commitment before the Sessions Trial Court in Chikkaballapur. It is the allegation of the appellant that it was due to the fault of the Advocate that his case was dismissed for non-prosecution and it was not his fault. After the information given by his Advocate, the appellant preferred Second Misc. Petition to set aside the order of dismissal in Misc. No.27 of 2014.
6. The appellant filed Second Misc. Petition under Order IX Rule 9 of CPC. During the course of the proceedings the appellant has lead evidence and got marked Ex.P1, which is the copy of the order sheet in Misc. Pet. No.27/2014. Further, the appellant was also cross examined by the respondent. After hearing the arguments on both sides, the learned trial Judge was pleased to dismiss the petition on the ground that the appellant has not filed the Misc. Petition in accordance with law, the procedure and form prescribed in the CPC. Further, the learned trial Judge has held that several opportunities were provided to the appellant and he has not made use of the same and it is his step motherly and indifferent attitude towards his case. Further, the trial Court has held that the appellant has not shown any keen interest in prosecuting the case on merits.
7. The learned counsel for appellant submits that no doubt, filing of the Misc. Petition under the provisions of Order IX Rule 9 r/s Section 151 of CPC, appellant cannot be thrown out of the Court merely on the ground that the provisions of the application is not correct. Further, the learned counsel for the appellant submits that the original suit filed by the respondent is for recovery of Rs.13 lakhs, which he claims that he is not liable to pay and that he will be able to establish the same if an opportunity is provided.
8. Having heard the learned counsel for appellant, I am of the considered view that merely by quoting wrong provision of law, the Misc. Petition filed by the appellant cannot be dismissed. It is a trite law that when procedure is prescribed, the same has to be followed, but that cannot be a sole ground for dismissal of the petition, as time and again held by this Court and by Hon’ble Supreme Court that procedural law is man made and in order to provide justice hyper technical approach cannot be taken. The appellant cannot be penalized for the fault and error committed by his counsel and he has to be provided an opportunity to defend his case on merits. No hardship or injustice would be caused by doing so to the respondents. Therefore, the order of the Court below requires to be interfered and accordingly, I pass the following order:
ORDER (1) The order dated 5th October 2016 passed in Misc.
No.02/2016 by the Principal Senior Civil Judge, Kolar, is set aside;
(2) The petition is restored to the file of the Principal Senior Civil Judge, Kolar, for adjudication in accordance with law;
(3) The appeal is accordingly, disposed of. No order as to costs.
Sd/- JUDGE VK