IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR R.F.A.NO.1411 OF 2012 BETWEEN:
Mr. Venkatesh S/o Sanjeevaiah Aged about 35 years R/at No.29, Rachanamadu Tathaguni Post, Bengaluru-62 …Appellant (By Sri Rajagopala Naidu, Advocate) AND:
1. Mr. K.G.Shivashankar S/o Late Gurusiddappa Aged about 59 years R/at No.142/A, 4th Main Vijayanagar, Bengaluru-40 2. Mrs. Chidanandini Devi W/o K.G.Shivashankar Aged about 51 years R/at No.136/B, 5th Main Hanumanthanagar Bengaluru – 19 ... Respondents (By Sri P.Jagannathan, Advocate for C/R1 (Absent); R2 – Served, unrepresented) This RFA is filed under Order 41 Rule 1 read with Section 96 of CPC against the judgment and decree dated 28.02.2012 passed in O.S.No.1790/2010 on the file of the XXXVII Additional City Civil & Sessions Judge (CCH-38) Bengaluru, decreeing the suit for declaration.
This appeal coming on admission this day, the Court delivered the following:
JUDGMENT Heard the appellant’s counsel at the time of admission.
2. When this appeal came up before this Court on 16.01.2019, it was observed that this appeal could be disposed of on merits and one more opportunity should be given to the respondent to appear before the Court. The contesting respondent is respondent No.1. He entered caveat through a counsel. But the advocate is absent today.
3. This appeal has arisen out of the judgment of the trial Court in O.S.No.1790/2010, which is a suit for declaration brought by the first respondent/plaintiff. The appellant filed his written statement to contest the suit. It is stated in the memorandum of appeal that the file was misplaced by the Advocate; it was bundled along with disposed off cases and thus, the Advocate lost the track of the suit. The suit came to be decreed in the absence of the appellant.
4. The trial Court judgment also shows nil evidence from the defendant/appellant’s side. Since it is the case of the appellant that his Advocate lost track of the suit and thereby the suit came to be decreed, I find it necessary that an opportunity must be given to the appellant/defendant to contest the suit. Thus, the matter requires remand to the trial Court. The interest of the contesting respondent No.1 can be compensated by imposing cost on the appellant. Therefore, the following:
ORDER The appeal is allowed.
The judgment of the trial Court in O.S.No.1790/2010 is set aside. The suit is remanded to the trial Court for disposal in accordance with law.
The appellant is directed to pay cost of Rs.10,000/- to the first respondent in the trial Court or if the first respondent remains absent, the appellant/defendant shall deposit the same in the trial Court.
The parties are directed to appear before the trial Court on 05.03.2019 and on that day, if the respondents do not appear before the Court, their presence shall be secured by issuing court notice to them.
KMV/-
Sd/- JUDGE