Dismissed

Sri R Vasu v. Sri Muqhtiar Pasha

Karnataka HC20 Dec 2023RSA/146/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka reserved liberty for appellants to seek restoration of their regular appeal via Order LXI Rule 19 of CPC, dismissing their second appeal as withdrawn while reserving orders on the Application. Liberty also granted to Appeal Court to decide restoration application within 4 weeks.

What did the court decide?

Appeal dismissed as withdrawn; Liberty reserved to file application under Order LXI Rule 19 CPC for restoration of appeal.

Sri R Vasu Vs Sri Muqhtiar Pasha — Execution and Attachment | Karnataka HC (2023)

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1 - NC: 2023:KHC:46681 RSA No. 146 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 146 OF 2022 (SP)

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BETWEEN:

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SRI R VASU S/O LATE B RAJU AGED ABOUT 65 YEARS

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SRI R RAVIKUMAR S/O LATE B RAJU AGED ABOUT 52 YEARS

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BOTH ARE R/AT NO.18, 1^ST CROSS 1^ST MAIN, OM SHAKTHI TEMPLE STREET UDAYANAGARA, DOORAVANINAGARA POST BENGALURU-560 016

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…APPELLANTS

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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(BY SRI.ABHINAY.Y.T, ADVOCATE FOR SRI. KARTHIK V, ADVOCATE)

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AND:

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SRI MUQHTIAR PASHA S/O LATE BASHA SAHEB AGED ABOUT 70 YEARS

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SRI MUDASSIR PASHA S/O MUQHTIAR PASHA AGED ABOUT 41 YEARS

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SRI MUZAMMIL PASHA

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2 - NC: 2023:KHC:46681 RSA No. 146 of 2022

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S/O MUQHTIAR PASHA AGED ABOUT 40 YEARS

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SRI MUZAKKIR PASHA S/O MUQHTIAR PASHA AGED ABOUT 39 YEARS

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SRI HASSENA BEGUM D/O MUQHTIAR PASHA AGED ABOUT 43 YEARS

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ALL ARE R/AT KATTIGENAHALLI VILLAGE JADIGENAHALLI HOBLI HOSAKOTE TALUK-562 114 BENGALURU RURAL DISTRICT

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…RESPONDENTS

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(BY SRI. NANJA REDDY P N, ADVOCATE FOR R2 TO 5; V/O DTD: 15/12/2023, R2 TO 5 ARE TREATED AS LRs OF R1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE ORDER DATED 17.12.2021 PASSED IN RA.NO.192/2017 ON THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, AT BENGALURU, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 28.10.2017 PASSED IN OS.NO.1603/2007 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.

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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:46681 RSA No. 146 of 2022

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JUDGMENT

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The captioned second appeal is filed assailing the interlocutory order passed by the appellate Court on 17.12.2021 in R.A.No.192/2017 wherein the appellants’ regular appeal is dismissed for non-prosecution. The said interlocutory order is challenged by filing the second appeal under Section 100 of CPC.

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The appellants have an efficacious remedy of seeking restoration of appeal by taking recourse to Rule 19 of Order LXI of CPC. This Court also has to bear in mind that the remedy of first appeal is a statutory right and the appellate Court being the final fact finding authority has to reassess the entire material on record independently. The appeal is dismissed for nonprosecution on the ground that the counsel on record failed to appear on the date of hearing.

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The learned counsel appearing for appellants

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submits that earlier counsel on record retired from the case and the matter was adjourned on 4.12.2021. Though

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NC: 2023:KHC:46681 RSA No. 146 of 2022

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appellants had engaged a counsel, there was no sitting as the Presiding Officer was on leave. On the next date, before the new counsel could make a submission, the appeal was dismissed for non-prosecution.

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If these significant details are taken into consideration, on account of non-appearance of the counsel on record who was engaged, the litigants cannot be punished, more particularly, when the dispute is in respect of immovable property and the appeal is filed under Section 96 of CPC, which is a statutory appeal. However, this Court cannot examine the order under challenge. Therefore, I am of the view that though no indulgence is warranted at the hands of this Court, liberty is reserved to the appellants to file an appropriate application by invoking Rule 19 of Order LXI of CPC and seek appropriate orders at the hands of the appellate Court. It is borne out from the records that this second appeal is filed within thirty days of passing of the impugned order. Therefore, I am of the view that this is a

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5 - NC: 2023:KHC:46681 RSA No. 146 of 2022

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fit case to extend the benefit of Section 14 of the Limitation Act and if an application is filed within four weeks from the date of receipt of copy of this order, the appellate Court bearing in mind the valuable rights of the parties shall decide the application and pass appropriate orders within three months’ from the date of receipt of notice by respondents.

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The learned counsel for the appellants seeks

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leave to withdraw the appeal with liberty to file an application under Order LXI Rule 19 of CPC. By granting the liberty, the appeal is dismissed as withdrawn.

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Since the appeal is dismissed as withdrawn reserving liberty, Registry to return the Court fee in accordance with law.

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Sd/JUDGE

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ALB

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List No.: 1 Sl No.: 35

Sri R Vasu v. Sri Muqhtiar Pasha

Case brief

What is this about?

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Sri R Vasu v. Sri Muqhtiar Pasha

Case brief

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