Allowed

Sri. K. Nageshwara Rao v. M/S. Shekar Agro Industries

Karnataka HC5 Nov 2020WP/3091/2019

Case brief

AI extract

What is this about?

This court quashed an impugned order dismissing an application under Order 9 Rule 13 of CPC, holding that the trial court erred in not issuing a fresh notice after the petitioner's counsel expired, thereby denying the petitioner an opportunity of being heard before passing an adverse order.

What did the court decide?

The order dismissing the application under Order 9 Rule 13 of CPC is set aside and the application is allowed. Petitioner permitted to file written statement within 60 days.

Sri. K. Nageshwara Rao Vs M/S. Shekar Agro… — Civil Procedure and Limitation | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.3091 OF 2019 (GM- CPC)

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BETWEEN:

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SRI. K. NAGESHWARA RAO S/O VITTALA RAO AGED ABOUT 49 YEARS, AGRICULTURIST R/O WARD NO.31, SAROJA NAGARA GANGAVATHI, KOPPAL DISTRICT-583227.

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…PETITIONER

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(BY SHRI SHANTHA RAJA K G ADVOCATE V/O DATED 16.04.2019)

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AND:

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M/S. SHEKAR AGRO INDUSTRIES PARNTERSHIP FIRM, NO.240 CHAMRAJ PET, DAVANGERE REPRESENTED BY ITS MANAGING PARTNER-SRI M K CHANDRASHEKARAPPA S/O LATE SHIVALINGAPPA R/O DAVANAGERE-577001

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...RESPONDENT

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(BY SHRI MAHALINGAPPA S PATIL, ADVOCATE V/K NOT FILED, ABSENT, RESPONDENT SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING THE IMPUGNED ORDER DATED 01.12.2018 IN MISC APPEAL NO.25/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AT DAVANAGERE A COPY OF WHICH IS PRODUCED AT ANNEXUREA AND MISC. APPEAL NO.25 OF 2018 BE ALLOWED AS PRAYED FOR AND THIS PETIITON IS ALLOWED ACCORDINGLY AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINAY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner is before this Court seeking for writ of certiorari quashing the order dated 01.12.2018 in Misc. Appeal No.25/2018 by III Additional Senior Civil Judge & JMFC at Davanagere.

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The respondent herein had filed a suit in O.S.No.420/2009 seeking for recovery of such money from the petitioner contending that petitioner being an agriculturist had purchased seeds from the respondent towards which the money was not paid. Though the petitioner had entered appearance through his advocate on 04.11.2019, his advocate expired on 18.11.2019

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W.P.No.3091/2019 3

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and thereafter, the written statement of petitioner was taken as not filed and matter was proceeded to trial and decreed exparte against the petitioner.

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Being aggrieved by the same, petitioner had filed Misc petition under order 9 rule 13 of CPC in Civil Misc. No.18/2013 which came to be dismissed on 21.03.2009.

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It is in the above background M.A.No.25/2019 had been filed by the petitioner. Said M.A.No.25/2018 came to be dismissed by III Additional Senior Civil Judge & JMFC at Davangere, on the ground that though the advocate for the petitioner had expired on 18.11.2009, the decree having been passed in the year 2012. Petitioner has not placed anything on record to show his diligence from the year 2009 to 2012 to ascertain any matters before the Court.

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Sri. Shantharaja K.G., learned counsel for the petitioner submits that the petitioner is an

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W.P.No.3091/2019 4

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Agriculturist and as an Agriculturist he had engaged services of lawyer who expired soon, thereafter, petitioner was not aware of the proceedings in the matter or the expiry of the said advocate or status of the matter. He was always under the impression that his advocate would inform him as to what is to be done, as the petitioner is a rustic villager.

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He further submits that there are serious disputes as regards the purchase of the seeds as alleged by the plaintiff – respondent and if, opportunity is not given to the petitioner to place his version of the case before the Court, grave injustice would be caused to the petitioner.

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Though the respondent has been served, none appeared on the part of the respondent.

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Heard Sri. Shantha Raja K.G., learned counsel for the petitioner. Perused the papers.

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It is not in dispute that petitioner entered appearance through his counsel on 04.11.2009. The First Appellate Court has also accepted the fact that the counsel of the defendant/petitioner expired on 18.04.2009 such being the facts merely because the petitioner has not placed on record as to what the petitioner did between 2009 to 2012 would not be a reason to dismiss the application filed by the petitioner. The fact of petitioner being a villager/agriculturist who had no legal knowledge or of the Court proceedings would also have been to be taken into consideration. It is trite that before any order is passed against a person, such person has to be given necessary opportunity of being heard. The Court being aware of the expiry of the counsel ought to have issued a fresh Court notice to the petitioner, which was not done.

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Sri. Shantha Raja K.G., learned counsel for the petitioner has submitted that the petitioner has valid

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W.P.No.3091/2019 6

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defence as regards claim of the respondent/plaintiff whether the defence is valid or not cannot be ascertained by this Court. At this stage, what is required is that Court gives necessary opportunity to the defendant to defend the proceedings filed against him.

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In view thereof, the order dated 01.12.2018 passed by the III Additional Senior Civil Judge & JMFC at Davanagere, in M.A.No.25/2018 confirming the order passed by the Principal Civil Judge at Davanagere, in Civil Mis. No.18/2013, dismissing the application under Order 9 Rule 13 of CPC is set aside. Consequently, application under Order 9 Rule 13 of CPC is allowed.

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Petitioner is permitted to file his written statement in the said suit in O.S.No.420/2009 within a period of 60 days from the date of receipt of the certified copy of this order, failing which, the petitioner would loose the opportunity granted by this Court. The trial

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W.P.No.3091/2019 7

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Court to proceed from the stage of filing of the

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written statement.

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Sd/- JUDGE

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MH/-

Sri. K. Nageshwara Rao v. M/S. Shekar Agro Industries

Case brief

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Sri. K. Nageshwara Rao v. M/S. Shekar Agro Industries

Case brief

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