IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.8011/2016 BETWEEN:
SMT.VIJAYALAKSHMI W/O LATE ADHARMURTHY T. AGED ABOUT 42 YEARS R/AT NO.1572 THOPANNA SWAMY LAYOUT GANAPATHI PURA KONANAKUNTE, BENGALURU – 560 062 … APPELLANT (BY SRI NARAYANA BHAT M., ADVOCATE) AND:
SMT.LAKSHMI W/O LATE RAMACHANDRA AGED ABOUT 52 YEARS R/AT NO.1573, GANAPATHI PURA KONANAKUNTE, BENGALURU – 560 062 … RESPONDENT (RESPONDENT - SERVED) THIS MFA IS FILED UNDER ORDER XLIII RULE 1(C) OF THE CPC PRAYING TO SET ASIDE THE ORDER DATED 21.10.2016 PASSED BY THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN MISC. PETITION NO.90/2016.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Respondent served and unrepresented. Heard appellant’s Counsel.
By impugned order dated 21.10.2016 in Misc.Petition No.90/2016, the XXII Additional City Civil & Sessions Judge, Bengaluru (CCH No.7) has rejected the petition of the appellant under Order IX Rule 9 of CPC to recall the order dismissing the suit of the plaintiff in O.S.No.980/2013.
2. The appellant and the respondent are the co-sisters. The appellant filed O.S.No.980/2013 before XXII Additional City Civil & Sessions Judge, Bengaluru (CCH No.7) against the respondent for partition claiming that her husband and the husband of the defendant were entitled to half share in the suit schedule property.
3. During the pendency of the suit, the appellant failed to appear before the trial Court. Therefore, the trial Court dismissed O.S.No.980/2013 on 15.12.2015 for non-prosecution.
4. The appellant filed Misc.Petition No.90/2016 before the trial Court for setting aside the dismissal of her suit for non-prosecution on the ground that her Counsel had wrongly noted the date in his diary and communicated the same to her, therefore, she could not appear on the appointed date. The respondent did not contest the petition before the trial Court also to deny the grounds urged.
5. Counsel for the appellant owned his mistake and produced the copy of the relevant page of his diary saying that he had noted in his diary the hearing date as 14.01.2016, though the case was adjourned to 11.11.2015. The trial Court dismissed the petition holding that the defendant did not produce the entire diary for perusal of the Court.
6. Order IX Rule 9 of CPC empowers the Court to recall the order of dismissal of the suit for non-prosecution, if the plaintiff satisfies that she has sufficient cause for proceeding with the matter on the appointed date.
7. It is well settled principle that such clause has to be liberally construed and the party should not be snubbed on the technical grounds. To sub-serve the ends of justice, generally the Court has to decide the rights of the parties on adjudication.
8. In the case on hand, the plaintiff contended that her advocate has noted the date as 14.01.2016, though the case was adjourned to 11.11.2015, Therefore, on that day, both of them could not appear and the case was dismissed on 15.12.2015 for non-prosecution.
9. As already pointed out, the plaintiff’s Counsel produced the relevant page of his diary to show that he had noted the hearing date wrongly. The trial Court dismissed the petition holding that the entire diary was not produced, therefore, the case of the plaintiff cannot be believed. However, the trial Court before jumping to such conclusion had not given any opportunity to the plaintiff to get herself examined or her advocate nor had sought clarification for such doubt.
10. It is to be noted that the respondent did not deny the appellant’s explanation. Under the circumstances, the impugned order of the trial Court suffers infirmity and requires to be set aside in the interest of justice.
The appeal is allowed. The order dated 21.10.2016 passed by XXII Additional City Civil & Sessions Judge, Bengaluru (CCH No.7) is hereby set aside. Misc.Petition No.90/2016 is allowed. The order dated 15.12.2015 passed by the XXII Additional City Civil & Sessions Judge, Bengaluru (CCH No.7) dismissing O.S.No.980/2013 is hereby set aside. The suit is restored to the file.
To avoid further delay, the plaintiff shall before the trial Court 20.01.2020 without any further notice.
In view of disposal of the appeal, I.A.No.1/2017 stood disposed of.
Sd/- JUDGE KSR