Disposed

Sri.Alwin Ambrose v. Sri.Manivel

Karnataka HC10 Sept 2024MSA/146/2023

Case brief

AI extract

What is this about?

Plaintiff challenged the first appellate court's remand of an ex parte money recovery decree. The High Court maintained the remand but enhanced costs payable by defendants from Rs.10,000 to Rs.25,000 and directed expeditious trial disposal.

What did the court decide?

Remand order maintained; cost enhanced from Rs.10,000 to Rs.25,000; balance Rs.15,000 payable at next hearing; trial court to dispose suit by 30.04.2025.

Sri.Alwin Ambrose Vs Sri.Manivel — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:36921 MSA No. 146 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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MISCELLANEOUS SECOND APPEAL NO.146 OF 2023

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BETWEEN:

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SRI ALWIN AMBROSE S/O LATE ANTHONISWAMY AGED ABOUT 35 YEARS R/A MARTALLI VILLAGE RAMAPURA HOBLI HANURU TALUK CHAMARAJANAGAR DISTRICT …APPELLANT

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(BY SRI CHANDRAKANTH R GOULAY, ADVOCATE) AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI MANIVEL S/O VENKATACHALAM AGED ABOUT 41 YEARS R/A NO.6, KARAI KADU KAVERIPURAM POST METTUR TALUK SALEM DISTRICT TAMILNADU STATE

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SRI RAJI @ SOUND RAJ S/O LATE ANTHONISWAMY AGED ABOUT 36 YEARS R/A MARTALLI POST KORATTU KOVIL VILLAGE

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2 - NC: 2024:KHC:36921 MSA No. 146 of 2023

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RAMAPURA HOBLI HANURU TALUK CHAMARAJANAGAR DISTRICT

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…RESPONDENTS

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(BY SRI GIRISH M K, ADVOCATE)

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THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.10.2022 PASSED IN R.A.No.5010/2021 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA) AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard the learned counsel Sri Chandrakanth R

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Goulay and Sri Girish M K appearing for the respective parties.

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The plaintiff in O.S.No.11/2016 is the appellant

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before this Court challenging the order passed in R.A.No.5010/2021 dated 01.10.2022 by the Additional District and Sessions Judge, Chamarajanagara (sitting at Kollegala).

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NC: 2024:KHC:36921 MSA No. 146 of 2023

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The facts in brief which are utmost necessary for disposal of the appeal is as under:

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A suit came to be filed in O.S.No.11/2016 by the appellant herein against the respondents for recovery of money. Admittedly, the defendants did not contest the suit as they were placed exparte. Thus, the suit came to be decreed exparte.

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Thereafter, the defendants filed an appeal in R.A.No.5010/2021 challenging the exparte decree. The learned Judge in the First Appellate Court after securing the records and hearing the parties, allowed the appeal and remitted the matter to the Trial Court.

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The operative portion of the order of the First Appellate Court reads as under:

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“I.A.No.I filed by appellants U/o.5 of Limitation Act is allowed subject to payment of cost of Rs.10,000/- to the plaintiff.

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I.A.No.III filed by the appellant U/o. 41 Rule 27 R/w Section 151 CPC is allowed.

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4 - NC: 2024:KHC:36921 MSA No. 146 of 2023

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Regular Appeal filed U/o. 41 Rule 1 R/w Section 151 of CPC is hereby allowed.

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Consequently, the impugned judgment and decree passed by the Senior Civil Judge and JMFC, Kollegala in O.S.No.11/2016 dated: 23.09.2017 is hereby setting aside and remand the case to the trial Court with a direction to give an opportunity to file written statement of the defendant No.1 and 2 and frame the necessary issues and given an opportunity to both parties to lead their respective evidence and to dispose the case on merits.

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Both parties are hereby directed to appear before the trial Court on 03.11.2022 without awaiting any formal notice from the trial Court.

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Draw decree accordingly.

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Send back the trial Court records, along with a copy of this judgment forthwith.”

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Being aggrieved by the same, the plaintiff is in this appeal.

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The learned counsel Sri Chandrakanth R

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Goulay appearing for the appellant reiterating the grounds urged in the appeal memo contended that per se the reasons assigned for setting aside the exparte decree is unbelievable inasmuch as the suit came to be decreed in the month of September 2017 and at that point of time,

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5 - NC: 2024:KHC:36921 MSA No. 146 of 2023

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there could not have been any pandemic as alleged which has prevented the defendants to contest the suit. Same is not properly considered by the learned Judge in the First Appellate Court and the same leads to miscarriage of justice and sought for allowing the appeal.

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Per contra , the learned counsel appearing for

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the respondents supports the impugned order of the First Appellate Court.

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Having heard the parties, it is noted that the suit in O.S.No.11/2016 came to be decreed exparte. In all such matters, remitting of the matter to the Trial Court for fresh disposal in accordance with law is justifiable.

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However, the learned Judge in the First

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Appellate Court has imposed cost of Rs.10,000/- only without assigning the proper reasons.

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It is to be noted that the suit is filed for the recovery of Rs.5,08,263/-. Therefore, enhancing the cost

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NC: 2024:KHC:36921 MSA No. 146 of 2023

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in a sum of Rs.25,000/- from Rs.10,000/- would meet the ends of justice.

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It is submitted by the learned counsel appearing for the respondents that the suit is being continuing in the Trial Court. Therefore, directing the Trial Court to expedite the hearing of the suit and conclude the same in a time bound manner.

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Accordingly, this Court passes the following:

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ORDER

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a) The appeal stands disposed of.

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b) While maintaining the order of remand, the cost of Rs.10,000/- imposed by the learned Judge in First Appellate Court is enhanced to Rs.25,000/-. Balance cost of Rs.15,000/- is to be paid by the defendants on the next date of hearing before the Trial Court.

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c) Taking note of the fact that the suit is of the year 2016, the same shall be disposed of by the Trial Court as early as possible but not later than 30.04.2025.

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d) Parties and their respective advocates shall cooperate for the same.

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NC: 2024:KHC:36921 MSA No. 146 of 2023

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e) In view of disposal of the main appeal, I.A. if any, does not survive for consideration and the same stands disposed of.

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Sd/(V SRISHANANDA) JUDGE

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Sri.Alwin Ambrose v. Sri.Manivel

Case brief

What is this about?

What did the court decide?

Sri.Alwin Ambrose v. Sri.Manivel

Case brief

What is this about?

What did the court decide?

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