IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.11885 OF 2017 (GM-CPC) BETWEEN:
SRI. VENKATAPPA S/O CHIKKASUBBAIAH, AGED ABOUT 70 YEARS, R/AT BODAGANAHALLI VILLAGE, KASABA HOBLI, CHIKKABALLAPURA TALUK AND CHIKKABALLAPURA DISTRICT - 562105 ... PETITIONER (BY SRI. RAJESH GOWDA, ADVOCATE) AND:
SMT. VARALAKSHMI, SINCE DEAD BY LR’S 1. MASTER KISHORE, S/O LATE VARALAKSHMI, AGED ABOUT 13 YEARS, MINOR, REPRESENTED BY HIS NATURAL GUARDIAN SMT. SONNAMMA, W/O VENKATARONAPPA, AGED ABOUT 61 YEARS, 2. SMT. SONNAMMA, W/O LATE VENKATARONAPPA, AGED ABOUT 61 YEARS, 3. SRI. KRISHNAMURTHY, S/O LATE VENKATARONAPPA, AGED ABOUT 39 YEARS, NO.1 TO 3 ARE R/AT BHODAGANAHALLI VILLAGE, KASABA HOBLI, CHIKKABALLAPURA TALUK AND CHIKKABALLAPURA DISTRICT - 562105 (BY SRI. SANTHOSH, ADVOCATE FOR SRI. M.S.VARADARAJAN, ADVOCATE) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 10.07.2008, IN O.S.NO.9/2004, ON THE FILE OF PRINCIPAL CIVIL JDUGE (JR.D) CHIKKABALLAPURA VIDE ANNX-C AND CONSEQUENTLY TO SET-ASIDE THE ORDER DTD 10.07.2008, IN O.S.NO.9/2004, ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.D) CHIKKABALLAPURA & JMFC VIDE ANNX-C; QUASH THE ORDER DTD 10.02.2015, PASSED ORDERS UNDER SECTION 5 OF LIMITATION ACT, IN U.MIS.NO.3/2009, ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.D) & JMFC CHIKKABALLAPURA, VIDE ANNX-K, AND CONSEQUENTLY TO SET-ASIDE THE ORDER DTD 10.02.2015, PASSED UNDER SECT 5 OF LIMITATION ACT, IN U.MIS.NO.3/2009, ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.D) & JMFC CHIKKABALLAPURA, VIDE ANNX-K AND TO PERMIT THE PETITIONER TO ADDUCE THE FURTHER EVIDENCE, IN U.MIS NO.3/2009, ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.D) CHIKKABALLAPURA, BY RESTORING THE SAME AND BY SET-ASIDING VIDE ANNX-K AND O AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a declaration suit in O.S.No.09/2004 is knocking at the doors of Writ Court for assailing the order dated 10.07.2008, whereby the suit was dismissed for non-prosecution as per annexure-C and also the order dated 10.02.2015 whereby U.Misc.3/2009 came to be dismissed denying restoration of the suit to the Board, as per Annexure-K. After service of notice, the respondent- defendants having entered appearance through their counsel resist the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants reprieve to the petitioner, inasmuch as the dismissal of the suit and the application for its restoration is on the wrong premise that suit is for a bear injunction whereas the suit on later point of time was already converted into title proceedings by amendment.
3. Ordinarily a litigant should have full opportunity to go for trial of the case instituted by him, subject to all just exceptions; the orders of dismissal of main proceedings for non-prosecution are a matter of penury and therefore, call for indulgence of the Writ court of course, subject to cost and condition.
In the above circumstances, this Writ Petition succeeds; impugned orders are set at naught; the suit is restored to the board for trial and dispose in accordance with law on payment of Rs.2,000/- payable by the petitioner to each of the respondents within a period of one month, failing which, the impugned orders now quashed, shall stand resurrected.
All contentions of parties are kept open.
Sd/- JUDGE DS