IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR M.F.A. NO.1879 OF 2016 (CPC) BETWEEN:
SRI. T.N.UMASHANKAR SINCE DEAD BY HIS LRS SMT. NEELAMBIKE W/O. T.N. UMASHANKAR ALSO DECEASED BY LRS 1. SRI T.U. MANJUNATH S/O. LATE T.N. UMASHANKAR AGED ABOUT 43 YEARS 2. SRI. T.U. SURESH KUMAR S/O. LATE T.N. UMASHANKAR AGED ABOUT 39 YEARS 3. SMT. T.U. SUJATHA W/O. GURPRASAD D/O. T.N.UMASHANKAR AGED ABOUT 46 YEARS 4. SMT T.U. VINUTHA W/O. PRASANNA KUMAR D/O. LATE T.N.UMASHANKAR AGED ABOUT 35 YEARS ALL ARE RESIDING AT NO.353 BAZAR STREET, (S.C. ROAD) YESHWANTHPUR,BENGALURU – 560 022.
... APPELLANTS NOTE: BOTH HUSBAND AND WIFE ARE DECEASED, HENCE LRS ARE BROUGHT ON RECORD - APPELLANTS NO.1 TO 4.
(BY SRI SRINIVAS B., ADVOCATE) AND:
1. SRI KESHAVA S/O. LATE C. CHENNAPPA MAJOR 2. SRI CHENNAKESHAVA LATE C. CHENNAPPA MAJOR BOTH ARE RESIDING AT NO.527 8TH CROSS, 1ST MAIN YESHWANTHPUR, BENGALURU – 560 022 3. SRI SIMON S/O. LATE V.M. FRANCIS MAJOR 4. SRI PAUL S/O. LATE V.M. FRANCIS MAJOR BOTH ARE RESIDING AT NO.356 BAZAAR STREET, (S.C. ROAD) YESHWANTHPUR BENGALURU – 560 022 5. SMT. CLARA GEORGE W/O. M.K. GEORGE D/O. LATE V.M. FRANCIS, MAJOR RESIDING AT NO.255/3 10TH MAIN, MATHIKERE EXTN. BENGALURU – 560 054 6. SMT. MARY D/O. LATE V.M. FRANCIS, MAJOR 7. SRI BABU S/O. LATE V.M. FRANCIS 8. SRI CHRISTY RAJU S/O. LATE V.M. FRANCIS, MAJOR ALL ARE RESIDING AT NO.356 BAZAAR STREET (S.C. ROAD) YESHWANTHPUR BENGALURU – 560 022 ... RESPONDENTS (BY SRI MOHMED NASIRUDDIN, ADVOCATE) ---
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 1 (C) OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THE ABOVE APPEAL AND SET ASIDE THE ORDER OF DISMISSAL OF THE PETITION IN MISCELLANEOUS PETITION NO.259/2009 DATED 28.04.2015 PASSED BY THE COURT OF THE 1ST ADDL. CITY CIVIL JUDGE, (CCH-2), BENGALURU AND ALLOW THE SAME.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsel appearing for appellants and the learned counsel appearing for respondents.
2. It is the case of the appellant that a suit was filed in OS No.411/2001, for permanent injunction initially and the same came to be amended for the relief of declaration of title and other consequential reliefs. The said suit was posted for cross examination of the plaintiff on 26.02.2009. On that day the appellant No.2 was entrusted to attend the case and subject himself for cross examination. But due to sudden high fever and illness on the previous day night, he could not be present before the Court and hence he conveyed the same to his counsel to seek for an adjournment. Appellant submits that the learned Civil Judge dismissed the suit on 26.02.2009 for non-prosecution.
3. It is the case of the respondents that the matter was posted for cross examination on 07.08.2009 and on other subsequent hearing dates, i.e., on 08.09.2008, 21.10.2008, 21.11.2008, 22.01.2009 and on 26.02.2009 and on those dates PW1 remained absent. It is also the case of the respondents that PW1 was absent even six months prior to 26.02.2009 and that there is no documents produced to show that what prevented him from attending the Court during that period. On these grounds the respondents sought for dismissal of the petition filed for restoration.
4. The learned counsel for the appellants submit that PW1 was suffering from fever and had taken treatment from one Dr. Bharathi and he has produced the certificate, which is marked as Ex.P2. The medical certificate states that he is suffering from fever from 23.02.2009 to 28.02.2009 and the matter was set down for cross examination on 26.02.2009. The appellants have produced medical certificate to show that PW1 was suffering from fever and due to which he could not be present before the Court for cross examination and the respondents have not disputed the said medical certificate issued by one Dr. Bharathi. The finding given by the learned City Civil & Sessions Judge, Bengaluru that nothing prevented PW1 from appearing before the Court on previous dates of hearing, is not legally sustainable in view of the fact that the trial Court had adjourned the matter on the those dates and thereafter posted the matter on 26.02.2009 for cross examination of PW1. The absence of the PW1 on 26.02.2009 has been sufficiently explained by producing the medical certificate of his illness. Therefore, to hold that there was no explanation of material produced by PW1 as to what prevented him from appearing before the Court, is not sustainable. It is also pertinent to note that the appellants have filed the Miscellaneous Petition for restoration of the suit immediately on 26.03.2009. In the said Misc. Petition for restoration the respondents have not lead any evidence.
5. As the appellants have immediately come before the Court for prosecuting the case by filing the application for restoration of the suit and shown sufficient cause for non-appearance on 26.02.2009 by producing the medical certificate, the trial Court ought to have allowed the same and provide an opportunity to the appellants to contest the case and decide the matter on merits. As noted, the appellants are seeking relief of declaration and other consequential reliefs of a commercial premises. Having considered the submission made by the learned counsel for appellants and the respondents, I feel it necessary that the appellants be provided an opportunity to lead their evidence and subject themselves for cross examination and contest the matter on merits. Therefore, I pass the following order:
ORDER The order passed by the learned I Addl. City Civil and Sessions Judge, Bengaluru City in Miscellaneous No.259/2009 is set aside. Accordingly Miscellaneous No.259/2009 is allowed and consequently the original suit in OS No.411/2001 is restored to its file. The appellants are permitted to contest the case.
Accordingly, the appeal is allowed. No costs.
Considering the nature and year of the suit, the parties shall not wait for notice from the Court and they shall appear before the I Addl. City Civil and Sessions Judge, Bengaluru City on 20.01.2020.
Sd/- JUDGE VK