Allowed

Smt. Venkatamma v. Sri Veeranna

Karnataka HC13 Dec 2023CRP/244/2018

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court of Karnataka upheld the Appellate Court's order restoring a specific performance appeal dismissed for default, noting the decree-holder had been deprived of property. However, the Court imposed a penalty cost to compensate for the delay caused by the respondent's counsel.

What did the court decide?

The appellate court order restoring the appeal is upheld; however, respondents must pay Rs. 5,000/- as cost to petitioners.

Smt. Venkatamma Vs Sri Veeranna — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:45357 CRP No. 244 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CIVIL REVISION PETITION NO. 244 OF 2018

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BETWEEN:

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SMT. VENKATAMMA, W/O. HANUMANTHAPPA, MAJOR.

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SRI. HANUMANTHARAYAPPA, S/O. HANUMANTHAPPA, MAJOR.

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SMT. JAYAMMA, W/O. LATE MANJUNATHA, MAJOR.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. N.H. KUMAR, S/O. LATE MANJUNATHA,

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MAJOR.

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SRI. PRAKASH, S/O. LATE MANJUNATHA, MAJOR,

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ALL ARE R/AT. MADDAKANAHALLI, GOWDEGERE HOBLI, SIRA TALUK, TUMAKURU DISTRICT - 572 137.

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…PETITIONERS

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(BY SRI. K.N. NITISH, ADVOCATE)

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2 - NC: 2023:KHC:45357 CRP No. 244 of 2018

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AND:

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SRI. VEERANNA, AGED ABOUT 78 YEARS, S/O. LATE HUCHAPPA.

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SRI. D.V. SURESH, AGED ABOUT 42 YEARS, S/O. VEERANNA,

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BOTH ARE R/AT. NADURU VILLAGE, GOWDEGERE HOBLI, SIRA TALUK, TUMAKURU DISTRICT - 572 137.

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…RESPONDENTS

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(BY SRI. MUSHTAQ AHMED, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 21.10.2017 PASSED IN MIS.NO.01/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SIRA ALLOWING THE PETITION FILED UNDER ORDER 9 RULE 9 OF CPC.

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THIS PETITION, COMING ON FOR FURTHER ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners have challenged the order dated

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21.10.2017 passed by the Senior Civil Judge and JMFC,

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Sira in Miscellaneous No.1/2016 by which petition under

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3 - NC: 2023:KHC:45357 CRP No. 244 of 2018

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Order 9 Rule 9 read with Section 151 of CPC filed by the respondents was allowed and RA No.33/2013 was restored to file.

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A suit in OS No.135/2006 was filed for specific performance of an agreement of sale by the appellants herein which was decreed in terms of the judgment and decree dated 26.06.2012. An appeal was filed by the respondents in RA No.33/2013 which was dismissed for default on 06.08.2014. Long thereafter i.e., nearly after one and half years, petition was filed to restore the appeal. The respondents lead evidence to justify the grounds for condonation of delay and marked Ex.P1 to P3. However, the petitioners did not examine themselves and did not mark any documents. Based on the evidence adduced before the Trial Court, it held that the respondent had established that he was prevented by sufficient cause from the miscellaneous petition in time. It therefore allowed the application for condonation of delay. Having regard to the fact that the suit was decreed for specific

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NC: 2023:KHC:45357 CRP No. 244 of 2018

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performance of an agreement of sale, the Appellate Court allowed the miscellaneous petition and restored the appeal to file. Being aggrieved by the same, this petition is filed.

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Learned counsel for the petitioners contended

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that the appellate Court without noticing that no reason was mentioned for condonation of delay, blindly allowed the application. He submitted that though the affidavit accompanying the application for condonation of delay was filed by D.V.Suresh, evidence was adduced by H.Veeranna as PW.1, who deposed that he was unwell and hence could not meet his Advocate and that the appeal was dismissed due to his absence and the absence of his Advocate. He therefore, contended that the Appellate Court without noticing that there was no evidence to justify the reasons for delay and in not prosecuting the appeal diligently, blindly allowed the application for condonation of delay and consequently allowed the petition and restored the appeal. He therefore contends that the Appellate Court ought not to have allowed the petition.

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NC: 2023:KHC:45357 CRP No. 244 of 2018

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Per contra, the learned counsel for the respondents submits that the respondents had suffered a decree of specific performance and therefore the first Appellate Court was justified in allowing the miscellaneous petition so as to afford an opportunity to the respondents to contest the appeal on merits.

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I have considered the submission made by the

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learned counsel for the petitioners as well as learned counsel for the respondents.

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The petition filed by the respondents for restoration of the appeal disclosed that the counsel for the respondents had gone to Madhugiri for his personal work and due to his absence, the Court dismissed the appeal for non-prosecution. In the affidavit accompanying the application for condonation of delay, the respondents did not mention the reason for the delay in filing the miscellaneous petition, but duplicated the very reason that was mentioned in the petition for restoration. Therefore, strictly speaking, there is no reason cited by the

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6 - NC: 2023:KHC:45357 CRP No. 244 of 2018

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respondents for condonation of delay for nearly one and half years in filing the miscellaneous petition. As rightly contended by the learned counsel for the petitioners, the Appellate Court did not seriously consider the application for condonation of delay in filing the miscellaneous petition. However, having regard to the fact that the respondents have suffered a decree of specific performance, by which they were likely to loose valuable property, an opportunity deserved to be granted to the respondents to contest the appeal on merits. However this cannot be without affording compensatory cost to the petitioners for the long lapse of time from the year 2012, when the petitioners obtained a decree for specific performance.

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In that view of the matter this revision petition is disposed of upholding the order passed by the appellate court restoring RA.No.33/2013 but the same shall be subject to cost of Rs.5,000/- payable by the respondents

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NC: 2023:KHC:45357 CRP No. 244 of 2018

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to the petitioners on the next date of hearing before the Appellate Court.

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It is made clear that, if the respondents do not

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pay the cost of Rs.5,000/- on the next date of hearing, the Miscellaneous petition filed by the respondents shall stand dismissed. Consequently, the appeal in RA.No.33/2013 shall also stand dismissed.

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Sd/JUDGE

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KBM List No.: 1 Sl No.: 17

Smt. Venkatamma v. Sri Veeranna

Case brief

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Smt. Venkatamma v. Sri Veeranna

Case brief

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