Allowed

Sri. Venkatachalapathy v. Sri. a. H. Rajanna

Karnataka HC7 Nov 2024MFA/2721/2024

Case brief

AI extract

What is this about?

This miscellaneous first appeal challenged the trial court's order dismissing a petition as non-maintainable. The court held that the trial court erred in not affording the appellant an opportunity to explain the cause for delay and participate in proceedings before concluding non-maintainability.

What did the court decide?

The impugned order dated 01.03.2024 set aside; trial court directed to give opportunity to both parties, adduce evidence and reconsider the matter within six months.

Sri. Venkatachalapathy Vs Sri. a. H. Rajanna — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:45058 MFA No. 2721 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 2721 OF 2024 (CPC)

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BETWEEN:

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SRI. VENKATACHALAPATHY S/O. LATE NANJAPPA, AGED ABOUT 79 YEARS, R/AT HOUSE NO.589, 1^ST CROSS, H.S.R.LAYOUT, BENGALURU-560 102.

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AND ALSO R/AT NO.129, 10^TH MAIN, NEAR BDA COMPLEX, SECTOR-6, H.S.R.LAYOUT, BENGALURU-560 102.

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…APPELLANT

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(BY SRI. HEMANTH KUMAR G.M., ADVOCATE)

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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AND:

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SRI. A.H.RAJANNA S/O. LATE HOMBE GOWDA, AGED ABOUT 81 YEARS, R/AT AVARAGERE VILLAGE, BIDADI HOBLI, RAMANAGARA TALUK AND DISTRICT.

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…RESPONDENT

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(BY SRI. KRISHNA B.J., ADVOCATE)

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THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CPC, AGAINST THE ORDER DATED 01.03.2024 PASSED IN MISC. PET.NO.29/2023 ON THE FILE OF THE PRL. SENIOR CIVIL

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2 - NC: 2024:KHC:45058 MFA No. 2721 of 2024

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JUDGE AND CJM, RAMANAGARA, DIPOSING THE PETITION FILED U/O.IX RULE 9 AND 13 R/W SECTION 151 OF THE CPC.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and learned counsel for the respondent.

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This miscellaneous first appeal is filed against the order dated 01.03.2024 passed by the Trial Court in Miscellaneous Petition No.29/2023 dismissing the petition in coming to the conclusion that the same is not maintainable.

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Learned counsel for the appellant brought to notice of this Court that when the Trial Court granted time to lead evidence on I.A.No.1, since there was delay in filing the petition, instead of giving an opportunity, posted the matter for maintainability and passed an order that the petition is not maintainable. Learned counsel for the appellant also would vehemently contend that the Trial Court committed an error in coming to such a conclusion without affording an opportunity to the appellant to explain the reason for not appearing before the

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NC: 2024:KHC:45058 MFA No. 2721 of 2024

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Court to contest the matter. The Trial Court dismissed the petition even without considering the fact that the application is filed before the Court for condonation of delay and ought to have given an opportunity to lead evidence and the very order impugned is not sustainable in the eye of law.

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Per contra, learned counsel for the respondent

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would contend that, even though case was posted for enquiry on I.A.No.1, the Trial Court has taken note of the fact that very petition filed either under Order IX Rule 9 and 13 read with Section 151 of CPC is not maintainable and detailed order has been passed and the Trial Court comes to the conclusion that the very petition itself is not maintainable, since the appellant was represented through counsel and also filed written statement and not participated in the proceedings. Hence, it does not require any interference.

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Having heard the learned counsel for the appellant

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and learned counsel for the respondent, it is not in dispute that there was a decree in favour of the respondent and Miscellaneous Petition No.29/2023 is filed along with an application to condone the delay invoking Section 5 of the

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4 - NC: 2024:KHC:45058 MFA No. 2721 of 2024

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Limitation Act, since there was delay of 1508 days in filing the above miscellaneous petition and when the case was set down for enquiry on I.A.No.1, the Trial Court considered the issue of maintainability and before affording an opportunity to explain the cause for delay in filing the miscellaneous petition and what prevented the appellant from participating in original proceedings, the Trial Court comes to the conclusion that very petition itself is not maintainable and the very approach of the Trial Court is erroneous and ought to have given an opportunity to lead evidence with regard to delay and sufficient cause has been shown by the appellant by invoking provision under Order IX Rule 9 and 13 read with Section 151 of CPC and such opportunity was not given. Hence, the order requires to be set aside and matter requires reconsideration by remitting the matter to the Trial Court.

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In view of the discussion made above, I pass the

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following:

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ORDER

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(i) The miscellaneous first appeal is allowed.

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(ii) The impugned order dated 01.03.2024 passed by the Trial Court in Miscellaneous

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5 - NC: 2024:KHC:45058 MFA No. 2721 of 2024

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Petition No.29/2023 is set aside and the Trial Court is directed to give an opportunity to both the parties and adduce evidence and consider the matter afresh by giving opportunity to both the parties.

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(iii) The Trial Court is directed to dispose of the petition within a time bound period of six months.

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(iv) The parties and their respective counsels are directed to assist the Trial Court in disposal of the case within the stipulated period and the parties are directed to appear before the Trial Court on 29.11.2024 without expecting any notice.

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Sd/(H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 35

Sri. Venkatachalapathy v. Sri. a. H. Rajanna

Case brief

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Sri. Venkatachalapathy v. Sri. a. H. Rajanna

Case brief

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