Allowed

Sri Alexander J S v. the Deputy Director of Public Instructions

Karnataka HC18 Nov 2023MFA/3887/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal filed under Section 104 read with Order XLIII Rule 1(c) of CPC. The Court set aside the orders dismissing a miscellaneous petition for restoration and the subsequent suit dismissal for non-prosecution, restoring the suit to the trial court's file for fresh adjudication.

What did the court decide?

The dismissed miscellaneous petition (Misc.No.804/2022) and the dismissed suit (O.S.No.3165/2021) were restored; the appeal was allowed; and the trial court is to decide the suit afresh.

Sri Alexander J S Vs the Deputy Director of… — Education and Admissions | Karnataka HC (2023)

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1 - NC: 2023:KHC:41358 MFA No. 3887 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 3887 OF 2023 (CPC)

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BETWEEN:

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SRI ALEXANDER J S S/O JOSEPH THOMAS SUMATHI JESU AMRITHAM SAHAYA ANTHIRAYAS AGED ABOUT 24 YARS R/A NO.38, 1ST CROSS, 1ST MAIN NEAR 199 BUS STOP CHINNAPPA GARDEN BANGALORE-560046.

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…APPELLANT

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(BY SRI. LAKSHMIKANTHA T S., ADVOCATE)

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AND:

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS KEMPEGOWDA ROAD OPP TO KAUVERI BHAVAN BANGALORE-560009.

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THE SECRETARY KARNATAKA SECONDARY EDUCATION EXAMINATION BOARD MALLESHWARAM 18TH CROSS BANGALORE-560003.

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THE HEAD MISTRESS SMT KAMALABAI GIRLS HIGH SCHOOL NO.3, QUEENS ROAD CIVIL STATION, SHIVAJI NAGAR BANGALORE NORTH-560052.

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2 - NC: 2023:KHC:41358 MFA No. 3887 of 2023

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THE NATIONAL INSTITUTION OF OPEN SCHOOLING OFFICE OF THE DIRECTOR 3RD FLOOR, PUC BHAVAN 18TH CROSS, SAMPANGI ROAD MALLESHWARAM BANGALORE-560003.

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THE JAIN UNIVERSITY FOR DISTANCE EDUCATION AND VIRTUAL LEARNING OFFICE OF THE DIRECTOR NO.319, 25TH MAIN, 17^TH CROSS K.R. LAYOUT, J.P.NAGAR 6TH PHASE BANGALORE-560078.

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…RESPONDENTS

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(BY SMT. M.V. ADITHI, AGA., FOR R1 & R2: NOTICE TO R3 & R5 ARE D/W V/O DTD: 12.07.2023: NOTICE TO R4 IS SERVED BUT UNREPRESENTED)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 05.04.2023 PASSED IN MISC.NO.804/2022 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH.NO.19, BENGALURU, DISMISSING THE PETITION FILED UNDER ORDER 9 RULE 9 R/W SECTION 151 OF CPC.

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

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3 - NC: 2023:KHC:41358 MFA No. 3887 of 2023

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JUDGMENT

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This appeal under Section 104 read with under Order XLIII Rule 1 (c) of CPC has been filed by the petitioner challenging the order dated 05.04.2023 passed by the VII Additional City Civil and Sessions Judge (CCH No.19), Bengaluru in Misc.No.804/2022 whereby the petition filed by the petitioner under Order IX Rule 9 read with Section 151 of CPC has been dismissed.

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For the sake of the convenience, the parties are referred to as per their ranking before the Trial Court.

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The plaintiff has filed the suit in O.S.No.3165/2021 for declaration declaring that the name of the plaintiff’s father as Jesu Amritham Sahaya Anthirayas and the name of the mother as Joseph Thomas Sumathi. The said suit came to be dismissed for non-prosecution on 25.05.2022. Thereafter, the plaintiff has filed miscellaneous petition in Misc.No.804/2022 under Order IX Rule 9 read with Section 151 of CPC seeking for setting aside the order dated 25.05.2022 dismissing the suit in O.S.No.3165/2021 on

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4 - NC: 2023:KHC:41358 MFA No. 3887 of 2023

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the file of the Principal Civil and Sessions Judge, Bengaluru City for restoration of the suit to original file and dispose of the same in accordance with law. The trial Court after considering the facts and material available on record, has dismissed the miscellaneous petition by order dated 05.04.2023. Being aggrieved by the same, the plaintiff is before this Court in this appeal.

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The plaintiff has filed the suit in O.S.No.3165/2021 seeking for the following prayer:

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“a) Declaring that, the name of plaintiff father as Jesu Amritham Sahaya Anthirayas,

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b) Declaring that, the name of the plaintiff mother as Joseph Thomas Sumathi,

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c) Direct the defendants to rectify the name of plaintiff father as Jesu Amritham Sahaya Anthirayas, and name of plaintiff mother as Joseph Thomas Sumathi in all relevant records of plaintiff and

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5 - NC: 2023:KHC:41358 MFA No. 3887 of 2023

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d) Direct the defendant No.3 and 5 to issue duly corrected Marks cards and Transfer certificates to plaintiff and

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e) Pass any other appropriate order as this Hon’ble court deems fit to grant considering the facts and circumstances of the case, in the interest of justice and equity.”

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The said suit came to be dismissed on the ground that when the matter was posted for hearing before the Court on 21.03.2022, 20.04.2022 and 25.05.2022, neither the parties nor their counsel were present before the trial Court.

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The specific case of the appellant/plaintiff is that the plaintiff was unable to contact his counsel to know about the actual hearing date of the case and his counsel has not intimated him regarding the date of hearing and therefore, he could not appear before the Court when the matter was posted.

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7. Under these circumstances and in the interest of

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justice, to give one more opportunity to both the parties to establish their case, the suit requires to be restored to the file by setting aside the order dated 05.04.2023 passed in Misc.No.804/2022.

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Accordingly, I pass the following order:

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ORDER

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a) The appeal is allowed .

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b) The order dated 05.04.2023 passed by the VII Additional City Civil and Sessions Judge (CCH-19), Bengaluru in Misc.No.804/2022 is hereby set aside.

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c) Misc.No.804/2022 is allowed. The order dated 25.05.2022 passed by the Principal Civil and Sessions Judge, Bengaluru City in O.S.No.3165/2021 is also set aside. The

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O.S.No.3165/2021 is restored to the file.

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