Allowed

Miss. Sahana v. Sri. Jagadish

Karnataka HC28 Mar 2024MFA/6692/2023

Case brief

AI extract

What is this about?

Appeal against dismissal of a petition to restore a partition suit dismissed for plaintiffs' non-appearance at trial. The High Court held a party cannot be penalised for counsel's absence and restored the suit, directing the plaintiffs to adduce evidence on the next date.

What did the court decide?

Trial court's dismissal of Misc. Petition No.10/2019 set aside; restoration petition allowed; suit O.S.No.66/2016 restored; parties to appear on 15.04.2024.

Miss. Sahana Vs Sri. Jagadish — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:12934 MFA No. 6692 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR. JUSTICE R. NATARAJ

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MISCELLANEOUS FIRST APPEAL NO. 6692 OF 2023 (CPC)

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BETWEEN:

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MISS. SAHANA D/O LATE SHEKAR, AGED ABOUT 25 YEARS,

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SMT. SUMA W/O LATE SHEKAR, AGED ABOUT 45 YEARS,

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SMT. SOURABHA D/O LATE RAJENDRA PRASAD, AGED ABOUT 30 YEARS,

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SMT. UMADEVI W/O LATE RAJENDRA PRASAD, AGED ABOUT 47 YEARS,

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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ALL ARE RESIDING AT THIMMASANDRA VILLAGE, LALAGHATTA POST, KASABA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT - 562 160.

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…APPELLANTS

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(BY SMT. SHILPA RANI, ADVOCATE)

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AND:

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SRI. JAGADISH S/O LATE KASUTRAMMA AND LATE JAVAREGOWDA, AGED ABOUT 51 YEARS,

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2 - NC: 2024:KHC:12934 MFA No. 6692 of 2023

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SRI. SURESH S/O LATE KASUTRAMMA AND LATE JAVAREGOWDA, AGED ABOUT 48 YEARS,

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SRI DINESH S/O LATE KASUTRAMMA AND LATE JAVAREGOWDA, AGED ABOUT 43 YEARS,

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RESPONDENTS Nos.1 TO 3 ARE R/AT BORAPURA VILLAGE, CHIKKARASINAKERE HOBLI, MADDUR TALUK, MANDYA DISTRICT - 571 422.

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SRI. N. SIDDARAMEGOWDA S/O NAGEGOWDA, AGED ABOUT 71 YEARS, R/AT THAMASANDRA VILLAGE, KASABA HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT - 562 112.

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SMT. M. PUSHPA W/O SRI. G.B. MAHALINGE GOWDA, AGED ABOUT 41 YEARS, R/AT No.185, YELEKERE, CHANNAPATNA TOWN, RAMANAGARA DISTRICT - 562 160.

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…RESPONDENTS

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(BY SRI. M.S.HARINATH ADVOCATE FOR R5) R1 TO R4 ARE SERVED AND UNREPRESENTED R3 & R4 SERVED AS PER POSTAL TRACK)

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THIS MFA IS FILED U/O 43 RULE 1(c) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 18.08.2023 PASSED IN MISC.No.10/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., CHANNAPATNA, DISMISSING THE MISC. PETITION FILED UNDER ORDER 9 RULE 4 AND 9 OF CPC.

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3 - NC: 2024:KHC:12934 MFA No. 6692 of 2023

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

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JUDGMENT

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The petitioners in Misc. Petition No.10/2019 on the file of the Senior Civil Judge and JMFC., Channapatna, filed this appeal challenging the order dated 18.08.2023 by which, the petition was dismissed.

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The suit in O.S.No.66/2016 was filed for

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partition and separate possession of the plaintiffs share in the suit schedule properties.

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The suit was contested by the defendants. The

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trial court framed issues and set down the case for trial.

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The suit was listed on 29.07.2019 for evidence of the plaintiffs. However, the Court noticed that the plaintiff was absent and that there was no representation of plaintiff and consequently, dismissed the suit. The plaintiffs thereafter, filed a Misc. Petition under Order IX Rule 4 and 9 of Civil Procedure Code to restore the suit.

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The petition was opposed by the respondents, who

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NC: 2024:KHC:12934 MFA No. 6692 of 2023

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contended that despite grant of several opportunities, the plaintiff did not adduce evidence.

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The trial Court recorded the evidence of petitioner No.4 Umadevi and marked the certified copy of the order in O.S.No.66/2016 as Ex.P.1. The respondent No.5 was examined as RW.1 and marked the copy of the plaint and written statement in O.S.No.66/2016 as Exs.R.1 and R2.

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Based on the oral and documentary evidence,

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the trial Court held that the petitioners were unable to establish that their advocates were otherwise engaged on the said date by producing the office diary and consequently, held that there was no sufficient reason why there was no appearance on the said date and why the evidence of PW.1 was not adduced. Consequently, it dismissed the petition.

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Being aggrieved by the said order, this appeal is filed.

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5 - NC: 2024:KHC:12934 MFA No. 6692 of 2023

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The learned counsel for the petitioners

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contended that the petitioner was present on the said date and sought time on the ground that his advocate was busy in some other Court. However, the Court proceeded to dismiss the suit for non-prosecution. He contended that the ground on which the Court had rejected the Misc. Petition is specious and therefore, the impugned order deserves to be interfered with.

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The learned counsel for the respondent fairly submitted that the plaintiff was present on the said date but contended that despite grant of opportunities, the plaintiff did not adduce evidence and therefore, the Court had no other option than to dismiss the suit for nonprosecution.

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The submission of the learned counsel for the respondents being fair, is highly appreciated. If the petitioner was present before the Court on the date the case was listed for evidence of plaintiff, the Court must have accommodated the plaintiff, more particularly, when

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6 - NC: 2024:KHC:12934 MFA No. 6692 of 2023

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she made a request to the Court that her advocate was otherwise busy. The reason mentioned is probable and therefore, a party cannot be held responsible for the mistake of a counsel. The trial Court could not have rejected the petition filed by the plaintiff for restoration of the suit on the ground that the petitioner had failed to furnish the case diary of the counsel for the petitioners. In matters of this nature, the Courts are bound to act taking into account the reality and practical problems faced by the Advocates in pursuing matters before the Court.

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9. Having regard to the above, the order passed

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by the trial court in dismissing the petition filed by the petitioners warrants interference. Hence, the appeal is allowed and the order passed by the trial Court is set aside. The Misc. Petition filed by the defendants is allowed and the impugned order passed is set aside and the suit in O.S.No.66/2016 is restored.

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The parties are directed to appear before the Court on 15.04.2024 and the petitioner shall without fail

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NC: 2024:KHC:12934 MFA No. 6692 of 2023

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adduce evidence on the said date, failing which, the trial

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Court may take appropriate steps in accordance with law.

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Sd/JUDGE

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PSJ

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List No.: 1 Sl No.: 31

Miss. Sahana v. Sri. Jagadish

Case brief

What is this about?

What did the court decide?

Miss. Sahana v. Sri. Jagadish

Case brief

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What did the court decide?

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