Allowed

Lalita Bai W/O Late Anneppa Police Patil and Ors. v. Maruti Rao S/O Narsing Rao Hibare and Ors.

Karnataka HC13 Oct 2014MFA/31982/2013

Case brief

AI extract

What is this about?

The High Court allowed this Miscellaneous First Appeal, setting aside the order dismissing the application for restoration of a suit dismissed on the default of the appellants. The Court directed the suit be restored upon the appellants paying costs of Rs. 5,000.

What did the court decide?

Impugned order set aside; suit restored subject to payment of Rs. 5,000 costs within one month.

Lalita Bai W/O Late Anneppa Police Patil… — Civil Procedure and Limitation | Karnataka HC (2014)

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MFA NO.31982/2013

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IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH

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DATED THIS THE 13^TH DAY OF OCTOBER, 2014

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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MISCELLANEOUS FIRST APPEAL No.31982 OF 2013 (CPC)

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BETWEEN

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Lalitabai

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W/o. Late Anneppa Police Patil Age : 58 years Occ: Household & Agriculture R/o. Chitguppa, Tq: Humnabad Dist:Bidar.

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Kumari Sangeeta D/o. Late Anneppa Police Patil Age:27 years, Occ: Household & Agriculture R/o. Chitguppa, Tq: Humnabad Dist:Bidar.

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Kumari Suman

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D/o. Late Anneppa Police Patil, Age: 22 years, Occ: Household & Agriculture R/o. Chitguppa, Tq: Humnabad Dist:Bidar.

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... APPELLANTS

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(Sri. Ashok S.Kinagi, Adv.)

MFA NO.31982/2013

AND

Maruti Rao S/o. Narsing Rao Hibare Since deceased by LRs.

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Yashwanthrao S/o. Marutirao Hibare Age: 41 years, Occ: Private Service R/o. Chitguppa, Tq: humnabad Dist: Bidar

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Jaiwanthrao S/o. Marutirao Hibare Age: 36 years, Occ: Private RMP Medical Practitioner R/o. Chitguppa, Tq: Humnabad Dist: Bidar

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Gunwanthrao S/o. Marutirao Hibare Age: 33 years, Occ: Private Business R/o. Chitguppa, Tq: Humnabad Dist: Bidar

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Balwanthrao S/o. Marutirao Hibare Age: 33 years, Occ: Private Service R/o. Chitguppa, Tq: Humnabad Dist: Bidar

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Veerbhadrappa S/o. Anneppa Police Patil Age: 33 years, Occ: Service R/o. Chitguppa, Tq: Humnabad Dist: Bidar

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... RESPONDENTS

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(By Sri. Sachin M. Mahajan Adv. for R2 to R5, appeal against R6 is dismissed v/o. dtd.12.09.2014)

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THIS MFA IS FILED U/S. 173(1) OF MV ACT, AGAINST THE JUDGMENT AND ORDER DATED: 06.08.2013 PASSED IN CIVIL MISC.NO: 9/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AT HUMNABAD, WHEREIN DISMISED THE PETITION FILED U/O. 9 OF CPC.

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MFA NO.31982/2013

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THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellants have challenged the order dismissing their application filed under the

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provisions of Order 9 Rule 9 read with Section 151 of CPC requesting for restoration of the suit in O.S.No.23/2009.

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The facts reveal that the appellants have filed the suit in O.S.NO.23/2009 seeking the relief of declaration and injunction. On 16.03.2012, the suit was posted for hearing. As the appellants herein were absent, it came to be dismissed for default. The appellants have filed an application under the provisions of Order 9 Rule 9 read with Section 151 of CPC seeking restoration of the suit on the ground that appellant No.1 was suffering from Lumbar Spondylosis and the doctor has advised bed rest and she was prevented from appearance for a just cause. They sought for restoration of the suit

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MFA NO.31982/2013

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dismissed on the said cause. The respondents have filed their objections opposing restoration.

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On behalf of the appellants, PW.1 was

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marked and in their evidence Exs.P1 and P2 were marked. On behalf of the respondents RW.1 was examined.

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The trial Court on appreciation of the

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evidence on record dismissed the application holding that the cause for restoration is not proved. Aggrieved by the said order, the present appeal is filed.

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Heard the learned counsel for the parties.

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The learned counsel for the appellants

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would submit that the application was filed within the time. The cause for restoration was pleaded in the application and it was proved by producing the medical certificate as per Ex.P2 and despite the material placed on record, the trial Court has

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MFA NO.31982/2013

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dismissed the application. Therefore, he seeks interference in the impugned order.

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On the other hand, the learned counsel for

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respondents support the order of the trial Court and submits that no sufficient cause has been made out and the trial Court has rightly rejected the application.

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It is not in dispute that the suit was filed by the appellants is for the relief of declaration and injunction, which was filed in the year 2009, though the matter was posted on 16.03.2012, for the absence of the appellants, the suit came to be dismissed. The application was filed within the time prescribed and in addition to that one of the appellant was examined as PW.1. The medical certificate has been produced as Ex.P2.

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Generally the cause put forth has to be

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liberally construed to do substantial justice to the parties on the basis of the merits of the case.

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MFA NO.31982/2013

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Material on record reveals that the appellants have shown the cause for restoration and the application is filed within time.

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In the circumstances, the finding of the

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trial Court rejecting the application appears to be without a liberal approach. To do substantial justice to the parties, injustice by a way delay in the disposal of the suit can be compensated by paying costs. Therefore, I am of the opinion that by imposing heavy costs, the appellants have to be given an opportunity to seeking a decree on merits of the matter. A sum of Rs.5,000/- appears to be just and reasonable as cost payable by the appellants for restoration of their suit.

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Consequently, the appeal is allowed. The order impugned is set aside, subject to cost of Rs.5,000/payable by the appellants to the respondents. The cost shall be paid or deposited in the trial Court within a one month from today.

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MFA NO.31982/2013

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The suit in O.S.No.23/2009 is ordered to be restored. It shall be disposed of in accordance with law preferably within a year from the date of communication of this order.

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Sd/-

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Srt

Lalita Bai W/O Late Anneppa Police Patil and Ors. v. Maruti Rao S/O Narsing Rao Hibare and Ors.

Case brief

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Lalita Bai W/O Late Anneppa Police Patil and Ors. v. Maruti Rao S/O Narsing Rao Hibare and Ors.

Case brief

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