IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.8611/2019 (GM-CPC) BETWEEN T.MOHAMED RAHAMATULLA S/O LATE T.M.MAHABOOB ULLA AGED ABOUT 58 YEARS R/AT NO.17, 4TH CROSS SEETHAPPA LAYOUT MANURAYANAPALYA R.T.NAGAR POST BANGALORE – 560 032 ... PETITIONER (BY SRI MANUSHANKAR S.S., ADVOCATE) AND K.FAZILA BANU W/O T.MOHAMED INAYATHULLA AGED ABOUT 43 YEARS R/AT 7TH CROSS, VINABANAGAR P.H.COLONY TUMKUR – 572 105 ... RESPONDENT (BY SRI VIGNESHWARA S.SHASTRI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.01.2019 IN MISC.NO.14/2017 PASSED BY THE PRINCIPAL SENIOR CIVIL JDUGE AND CJM AT TUMKUR AND DISMISSES THE MISC.NO.14/2017 BY ALLOWING THE ABOVE PETITION (ANNEXURE-‘F’) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner being the plaintiff in a specific performance suit in O.S.No.243/2013 is knocking at the doors of writ Court for assailing the order dated 18.01.2019, a copy whereof is at Annexure-‘F’ whereby the learned Principal Senior Civil Judge, Tumakuru having favoured the respondent’s Miscellaneous No.14/2017 has restored the said suit to the Board after recalling the ex- parte judgment and decree. After service of notice, the respondent having entered appearance through her counsel resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to interfere in the matter for the following reasons:
a) the suit in O.S.No.243/2013 is for a decree of specific performance founded on the agreement dated 11.04.2019; the consideration is stated to be Rs.9,50,000/- (Rupees Nine Lakh Fifty Thousand) only; thus the suit claim is little heavy;
b) the respondent having been placed exparte the judgment and decree came to be made on 24.06.2015 decreeing the suit for specific performance; the C.Misc. was filed on 25.03.2017 along with the application seeking condonation of delay in filing the same; the same was opposed by the petitioner by filing the objections dated 24.07.2017; the Court below in its discretionary power allowed the C.Misc.; the Hon’ble Apex Court in the case of TRIMBAK GANGADHAR TELANG & ANOTHER vs. RAMCHANDRA GANESH BHIDE & OTHERS, AIR 1977 SC 1222 has held that discretionary orders are ordinarily not susceptible to judicial scrutiny under Article 227 of the Constitution of India; and, c) the Court below while allowing the C.Misc. and restoring the suit to the Board has levied a cost of Rs.5,000/- (Rupees Five Thousand) only which the respondent has already deposited; this cost all though is low; justice can be done by enhancing the same to Rs.10,000/- (Rupees Ten Thousand) only in the Court below; it is stated at the Bar that the trial has already advanced after restoration of the suit.
In the above circumstances, this writ petition being devoid of merits stands disposed off without granting indulgence in the matter.
However, the cost levied by the Court below is enhanced from Rs.5,000/- to Rs.10,000/- which the respondent shall deposit the same within one month. If the cost is not accordingly deposited, the impugned order now set at naught shall stand resurrected.
The learned trial Judge has requested to try and dispose off the suit as expeditiously as possible.
Sd/- JUDGE KLV