IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.476 OF 2012 BETWEEN MR. SYED SALEEM AHMED, S/O. MR. SYED HAHANGIR, AGED ABOUT 37 YEARS, NO.14, 3RD CROSS, LAL BAGH ROAD, BANGALORE-560002. ... PETITIONER (BY SRI. SRIKANTH PATIL.K, ADVOCATE) AND MR. A. KRISHNA MURTHY, DEAD BY LEGAL HEIRS, 1(a) SMT. JAMUNA W/O LATE SRI. A. KRISHNAMURTHY, AGED ABOUT 51 YEARS, 1(b) SMT. GAJALAKSHMI D/O LATE A. KRISHNAMURTHY, AGED ABOUT 33 YEARS, 1(c) SRI. KARTHIKEYAN S/O LATE A. KRISHNAMURTHY, AGED ABOUT 31 YEARS, 1(d) SRI. VELMURUGAN S/O LATE A. KRISHNAMURTHY, AGED ABOUT 28 YEARS, ALL ARE RESIDING AT NO.53, NIRMALA KRUPA, GROUND FLOOR, 14TH A MAIN ROAD, HONGASANDRA, OPP ANDRA BANK, BANGALORE-560068.
2. MRS. K. JAMUNA, AGED ABOUT 36 YEARS, W/O. MR. A. KRISHNAMURTHY, RESIDING AT NO.U-41, BEHIND MINERVA MILLS, GOPALAPURAM, MAGADI ROAD, BANGALORE-560023.
3. MR. K. RAVI, AGED ABOUT 60 YEARS, S/O. LATE KANDASWAMY, RESIDING AT NO.5, 1ST CROSS, BHASHYAM NAGAR, SRIRAMAPURAM, BANGALORE-560021.
... RESPONDENTS (BY SRI. C.N. KRISHNA REDDY, ADVOCATE FOR R3 R1(A TO D) & R2 – SERVED UNREPRESENTED) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 9.7.2012 PASSED IN MISC.NO.25119/2011 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 7 OF CPC., AND DISMISSING THE IA.NO.1 FILED UNDER SECTION 5 OF THE LIMITATION ACT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court under Section 115 of CPC, assailing the order dated 09-7-2012 in Misc.No.25119/2011, by which petition filed under Order 9 Rule 7 of CPC to restore the suit in O.S.No.16910/2005, is dismissed.
2. The petitioner-plaintiff filed suit O.S.No.16910/2005 for specific performance of agreement of sale dated 31-12-2001 as well as for declaration. By order dated 16-11-2006, the suit against defendant Nos.1 and 2 was dismissed for non-taking steps for service of summons. Thereafter, the suit stood posted for evidence. As the petitioner-plaintiff failed to appear before the court and produce evidence, the suit was dismissed for non-prosecution on 15-12-2008. On 02-6-2011, the petitioner-plaintiff filed Misc.No.25119/2011 under Order 9 Rule 7 of CPC, requesting to restore the suit in O.S.No.16910/2005. The petition was filed along with I.A.No.1 for condonation of delay.
3. On service of notice of the main petition, the respondents appeared and filed their objections to the petition. The petitioner-plaintiff examined himself as PW-1 and got marked copy of the order sheet in O.S.No.16910/2005. The respondents did not adduce any evidence. The trial Court under impugned order, rejected the application filed under Order 9 Rule 7 of CPC, against which the present revision petition.
4. Heard the learned counsel for the petitioner and learned counsel for respondent No.3. Perused the material on record.
5. Learned counsel for the petitioner would submit that the order of the trial court is perverse and erroneous. He further submits that an observation of the trial Court that the petitioner-plaintiff has not taken any steps to recall the order dated 16-11-2006 would not arise at this stage, unless the suit is restored. Further, he submits that the trial Court has dismissed Misc.No.25119/2011 under Order 9 Rule 7 of CPC, where both the plaintiff and defendants had not appeared before the Court. So as to exercise the power under Order 9 Rule 3 of CPC, the trial Court dismissed the suit. Learned counsel further submits that the Advocate who was appearing for the petitioner-plaintiff had not informed the petitioner-plaintiff about the dismissal of the suit and as such the dismissal of the suit had not come to the knowledge of the petitioner-plaintiff. Immediately on knowing about the dismissal of the suit, the petitioner-plaintiff applied for the certified copy of the order and the same was received by the plaintiff on 19-5-2011. Thereafter, the miscellaneous petition is filed to restore the suit in O.S.No.16910/2005.
6. Per contra, learned counsel for respondent No.3 would submit that the petitioner-plaintiff is not diligent in prosecuting the suit and the suit against defendant Nos.1 and 2 came to be dismissed on 16-11-2006. Further, he submits that the petitioner-plaintiff had not taken any action to restore the suit against defendant Nos.1 and 2 till the suit was dismissed for non-prosecution on 15-12-2008.
Since the beginning, the petitioner-plaintiff was not appearing before the court and as such the trial court rightly dismissed the suit. It is his further submission that no acceptable reasons assigned for his non-appearance on the date of dismissal of the suit and to condone the delay.
7. On hearing the learned counsels for the parties and on perusal of the material placed on record, the only point which arises for consideration is as to whether the trial Court is justified in dismissing Misc.No.25119/2011 filed under Order 9 Rule 7 of CPC. Answer to the said point is in the affirmative for the following reasons:
8. The suit is for specific performance of agreement of sale dated 31-12-2001 as well as for declaration. The petitioner-plaintiff had not taken steps for service of summons on defendant Nos.1 and 2. As the petitioner- plaintiff failed to take steps for service of summons to defendant Nos.1 and 2, the suit came to be dismissed against defendant Nos.1 and 2 on 16-11-2006. Thereafter, till the dismissal of the suit on 15-12-2008, the plaintiff had not taken any steps for restoration of the suit against defendant Nos.1 and 2. Finally, when the matter stood at the stage of evidence, even after sufficient opportunity, the plaintiff failed to lead evidence. As such, the suit came to be dismissed on 15-12-2008 for non-prosecution. The court has rightly dismissed the suit for non-appearance of plaintiff. The certified copy of the order sheet made available indicates that on 15-12-2008 plaintiff called out, absent, no evidence produced and suit dismissed for non-prosecution. There is no noting with regard to presence or absence of defendant on that day. Without noting the absence of defendant the court could not have dismissed under Rule 3 of Order 9. As the court noted that the costs not paid, it is to be presumed that the defendant was present. The plaintiff filed application under Order 9 Rule 7 of CPC for restoration of the suit only on 02-6-2011, nearly after 2 ½ years from the date of dismissal of the suit. Even though the petitioner filed petition under Order 9 Rule 7 of CPC, it is considered as petition filed under Order 9 Rule 9 of CPC for restoration of suit. The only explanation offered by the petitioner-plaintiff for non-appearance before the court is that his counsel had not informed him about the dismissal of the suit. It is the case of the plaintiff that as the Advocate appearing for him was not available, subsequently on obtaining certified copy, he had changed his Advocate and filed the petition on 02-6-2011. The petitioner-plaintiff has not examined any other witness to substantiate his contention. He ought to have examined the Advocate who was earlier appearing for him in support of his contention/statement that his Advocate had not informed him about the dismissal of the suit. The petitioner-plaintiff statement has remained as statement without any proof. Further it is stated by the learned counsel for the petitioner-plaintiff that the petitioner has not taken any action against learned counsel who was appearing for him in the suit O.S.No.16910/2005 for his alleged lapse. Moreover, the plaintiff is not diligent in prosecuting the suit and the suit against defendant Nos.1 and 2 was dismissed on 16-11-2006. For more than two years till dismissal of the suit, he had not taken steps for restoration of the suit against defendant Nos.1 and 2. Thereafter, when the suit was dismissed on 15-12-2008, Misc.No.25119/2011 was filed under Order 9 Rule 7 of CPC for restoration of the suit, only on 02-6-2011, more than 2 ½ years from the date of dismissal of the suit. The sequences of events would demonstrate the conduct of the plaintiff in prosecuting the suit. Order 9 Rule 9 of CPC reads as under:
“9. Decree against plaintiff by default bars fresh suit.-(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.”
9. Even though the petition is filed under Order 9 Rule 7 of CPC, the same is considered under Order 9 Rule 9 of CPC. Wrong mentioning of provision would not make any difference while considering prayer for restoration of suit. The above Rule would indicate that the plaintiff has to satisfy the court that there was sufficient cause for his non-appearance on the date of hearing. But the reasons assigned by the petitioner-plaintiff that his counsel not informed about the dismissal of suit, would not constitute sufficient cause for his non-appearance on the date fixed for hearing.
10. The court while considering the application under Order 9 Rule 9 of CPC, shall set aside an order of dismissal of the suit only if it finds that the plaintiff was prevented from appearance on the date fixed for hearing by sufficient cause. What is sufficient cause depends upon the facts and circumstances of each case. The finding with regard to sufficient cause must be based on cogent evidence placed on record. Only when the plaintiff makes out sufficient cause, the suit could be restored. In the present case only reason assigned is that the Advocate appearing on behalf of plaintiff had not informed him about dismissal. The said allegation is made only to gain sympathy. There is no evidence or material to substantiate the said allegation. Moreover, it is pertinent note here that suit was already dismissed against defendant Nos.1 and 2 on 16-11-2006 itself and the plaintiff had not taken any steps to restore the suit against them till dismissal of suit for non-prosecution on 15-12-2008. Petition for restoration was filed only on 02-6-2011 with inordinate delay, for which there is no proper explanation. In the normal course, ordinarily the courts would allow the restoration application where there is bonafide in the petition. In this case there is no bonafide in prosecuting the suit from the date of institution of the suit in the year 2005. There has been gross negligence on the part of the plaintiff. As such, the trial Court is justified in dismissing Misc.No.25119/2011 filed under Order 9 Rule 7 of CPC. No ground is made out to interfere with the order passed by the trial Court.
Accordingly, the civil revision petition is dismissed.
Sd/- JUDGE SMJ