Allowed

Sri Venkatesh v. Smt Kusuma Balaji

Karnataka HC7 Jul 2022MFA/1965/2019

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal allowed the appellant's petition to restore an eviction suit dismissed ex-parte. The High Court quashed the impugned order and judgment, directing the civil court to reconsider the proceedings on merits within six months, imposing penalty conditions on the appellant.

What did the court decide?

The appeal was allowed. The impugned order and ex-parte judgment were quashed. The proceedings in the suit were restored for reconsideration on merits.

Sri Venkatesh Vs Smt Kusuma Balaji — Execution and Attachment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF JULY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD

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MISCELLANEOUS FIRST APPEAL NO.1965/2019 (CPC)

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BETWEEN:

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SRI. VENKATESH S/O RAMA RAJU AGED ABOUT 48 YEARS, SHOP NO.11/1 GROUND FLOOR 5^TH CROSS, RANGASWAMY STREET, N.M.C. LANE BENGALURU - 560 053. ... APPELLANT (BY SRI. NARASIMHA PRASAD S D, ADVOCATE)

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AND:

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SMT. KUSUMA BALAJI W/O BALAJI AGED ABOUT 52 YEARS, R/AT NO.12, THIMMARAYA SHETTY LANE, NAGARATHPET BENGALURU - 560 002. ... RESPONDENT (BY SRI. GANDILINGAPPA G.M, ADVOCATE FOR C/R)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(d) OF CPC, AGAINST THE JUDGMENT AND ORDER DATED 21/02/2019, PASSED IN MISC.CASE NO.246/2017, ON THE FILE OF THE XX ACMM., BENGALURU CITY (SCCH-24), DISMISSING THE PETITION FILED U/O.9 RULE 13 OF CPC.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant, a defendant in eviction proceedings in S.C.No.1606/2016 on the file of the XX Additional Chief Metropolitan Magistrate, Bengaluru City (for short, ' the civil Court '), is unsuccessful in his application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, ' CPC' ) for restoration of the aforesaid suit. The petitioner's application under Order IX Rule 13 of CPC is rejected in Miscellaneous Case No.246/2017 by the impugned order dated 21.02.2019.

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The undisputed facts are that the appellant appeared before the civil Court on service of suit summons in S.C.No.1606/2016, a suit for ejectment, and on his appearance, the proceedings are referred to mediation with him yet to engage a learned counsel on his behalf. The

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mediation has failed, and the suit is listed before the civil Court. The appellant has not participated in the suit after the failure of the mediation resulting in ex-parte order of eviction on 25.03.2017.

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The civil Court has rejected the petitioner's application for restoration of the suit in S.C.No.1606/2016 and for recall of the ex-parte judgment opining that the petitioner's case for failure to appear in the proceedings is untrue. The civil Court has concluded that if the appellant has participated in the mediation proceedings and negotiated for a settlement, he cannot deny the knowledge of the suit or the further proceedings.

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However, this Court is of the considered view that the civil Court’s appreciation could be highly technical, and the appellant's cause should be considered in the light of the admitted fact that the suit was referred to mediation even before the appellant engaged the assistance of a learned

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counsel. This would demonstrate that the appellant, who would obviously lack of knowledge of the consequences, may not have foreseen the same. In the aforesaid circumstances, this Court is of the considered view that the appellant must succeed and the proceedings in S.C.No.1606/2016 re-decided on merits after due opportunity to the appellant. However, the appellant must be put to reasonable terms. Hence, the following:

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ORDER

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a. The appeal is allowed.

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b. The impugned order dated 21.02.2019 in Miscellaneous Case No.246/2017 on the file of the XX Additional Chief Metropolitan Magistrate, Bengaluru City as also the exparte judgment dated 25.03.2017 in S.C.No.1606/2016 are quashed and the proceedings in S.C.No.1606/2016 restored for reconsideration.

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c. The appellant and the respondent shall appear without further notice before the civil Court on 01.08.2022. The appellant shall without fail on that day file his written statement and if there is any failure, the appellant shall forfeit the right to file written statement.

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d. The civil Court shall decide the proceedings expeditiously and in any event within an outer limit of six [6] months from the date of first appearance as aforesaid.

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Sri Venkatesh v. Smt Kusuma Balaji

Case brief

What is this about?

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Sri Venkatesh v. Smt Kusuma Balaji

Case brief

What is this about?

What did the court decide?

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