Plaintiffs sought restoration of their suit dismissed for want of prosecution after PW1 failed to appear thrice; trial court rejected the Order 9 Rule 4 application for want of a condonation application. High Court held non-filing was curable, set aside the rejection and allowed plaintiffs to file a condonation application.
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NC: 2024:KHC:31246 CRP No. 218 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 218 OF 2021
BETWEEN:
…PETITIONERS
Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA
AND:
ALL ARE R/AT R.THIMMASANDRA VILLAGE, RONUR HOBLI, SRINIVASAPURA TALUK, KOALR DISTRICT-563 135.
…RESPONDENTS
(BY SRI. YASHWANTH C R, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 18.06.2020 PASSED ON I.A.NO.5 IN OS.NO.263/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SRINIVASPURA, DISMISSING THE I.A.NO.5 FILED UNDER ORDER 9 RULE 4 OF CPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The plaintiffs filed a suit in OS No.263/2013 seeking a declaration that they are the absolute owners of the suit schedule agricultural land. The defendants entered appearances and filed written statements. Based on the pleadings, the Trial Court framed the issues, and the matter was set down for the plaintiffs' evidence.
NC: 2024:KHC:31246 CRP No. 218 of 2021
Admittedly, the plaintiffs did not file any application for condonation of delay along with the application filed under Order 9 Rule 4 of the CPC. The non-filing of an application for condonation of delay is a curable defect. If the suit is not restored, the valuable rights of the plaintiffs will be adversely affected. No prejudice will be caused to the defendants if the plaintiffs are permitted to file an application for condonation of delay. To prevent a miscarriage of justice, the impugned order requires to be set aside.
Accordingly, I pass the following:
ORDER
ii) The impugned order dated 18.6.2020 passed on I.A.No.5 in OS No.263/2013 by the learned Principal Civil Judge
NC: 2024:KHC:31246 CRP No. 218 of 2021
and JMFC, Srinivasapura, is hereby set aside, and I.A.No.5 is restored to its file.
iii) The petitioners-plaintiffs are permitted to file an application for condonation of delay, and if such an application is filed, the Trial Court to consider the same and pass appropriate order in accordance with law.
Sd/(HEMANT CHANDANGOUDAR) JUDGE
BKM
1 issue framed by the court
Whether the trial court rightly rejected restoration of a suit dismissed for want of prosecution solely because no condonation-of-delay application accompanied the Order IX Rule 4 application.
2 provisions across 1 enactments
B V Srinivasaih
B.V.Nagarajappa
Narayanaswamy
Reddapa
T.V.Munireddy
Venkatesh Reddy
Hemant Chandangoudar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
