Allowed

L v. Ramesh v the Community Party

Karnataka HC9 Feb 2024WP/19141/2018

Case brief

AI extract

What is this about?

Defendant's application under Section 5 of the Limitation Act to set aside an ex parte decree was allowed by the trial court despite the decree having been executed and possession delivered. The High Court held there was no just cause for condonation given the respondent's failed rounds of prior litigation and absence of diligence, and quashed the restoration order.

What did the court decide?

Order dated 04.04.2018 in Mis.Pet.No.13/2009 set aside; Mis.Case No.13/2009 dismissed.

L v Ramesh Vs the Community Party — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:5599 WP No. 19141 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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WRIT PETITION NO. 19141 OF 2018 (GM-CPC)

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BETWEEN:

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L.V. RAMESH S/O. LATE. K. VITTALJI, AGED ABOUT 70 YEARS, R/AT. FLAT. NO. 303, SANKALP DIVYAROOPA APARTMENT, AADIPAMPA ROAD, V.V. MOHALLA, MYSORE - 570 002.

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Digitally signed by MANJANNA MANJANNA E E Date: 2024.03.04 11:26:01 +0530

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POORNIMA SUNIL W/O G.V. SUNIL BABU R/O NO.578, 4^TH CROSS, LASHKAR MOHALL, DODDA VOKKALAGERI MYSORE - 570 001.

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…PETITIONERS

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(BY SRI: SHIVARAMA BHAT .O., ADVOCATE FOR PET.NO.1

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SRI: N. CHANNAKRISHNAPPA, ADVOCATE FOR PET.NO.2.)

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AND:

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THE COMMUNITY PARTY OF INDIA (M) MYSORE REP. BY ITS ACTING SECRETARY, NO.9/3, N.L-352, ASHOKA ROAD, OPP: CLOCK TOWERS, MYSORE.

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…RESPONDENT (BY SRI: SRINIVASA .S.K., ADVOCATE (ABSENT) SMT: SUGUNA R. REDDY & SRI: T.N. SHIVAREDDY, ADVOCATES (ABSENT) NOC TO APPEAR A/W VARUN PAPI REDDY (ABSENT))

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2 - NC: 2024:KHC:5599 WP No. 19141 of 2018

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THIS WRIT PETITION IS FILED 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 04.04.2018 PASSED IN MISC.PET.NO.13/2009 ON THE FILE OF III ADDL I CIVIL JUDGE AND JMFC AT MYSORE VIDE ANNEXURE-A AND ETC.,

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner No.1 being the respondent in Mis.Case No.13/2009 on the file of the learned III Additional I Civil Judge and JMFC., Mysore is impugning the order dated 04.04.2018 allowing the application filed under Section 5 of Limitation Act.

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Heard Sri. Shivarama Bhat O, learned counsel for the petitioner No.1 and Sri. Channakrishnappa, learned counsel for petitioner No.2. Learned counsel for the respondent remained absent. Perused the materials on record.

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It is submitted that petitioner No.1 being the plaintiff filed the suit OS.No.772/2002 seeking possession of the schedule premises. The suit was contested by the defendant/respondent by filing written statement through his counsel. The suit came to be decreed vide judgment and decree dated 04.07.2008. Pursuant to the same, petitioner No.1 filed

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NC: 2024:KHC:5599 WP No. 19141 of 2018

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execution case No.476/2008 and took delivery of the property during Feb 2009. Thus, the execution case is already closed as fully satisfied.

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The materials on record disclose that Mis.No.13/2009 came to be filed by the defendant seeking to set aside the judgment and decree as the same was an exparte judgment. It is the contention of the respondent that secretary/ representative of the respondent was not keeping well and he was not in a position to give instructions and the advocate was also suffering from illness. Therefore, the suit could not be contested. But the fact remains that the respondent is a national level political party, represented by its secretary. When the secretary was suffering from illness and was not in a position to give instructions, nothing prevented the respondent from appointing another person who is competent to act as Secretary. Moreover, the respondent was represented in OS.No.772/2002 by at least 3 or 4 advocates who have signed the vakalath. When an advocate was suffering from life threatening illness like cancer, nothing prevented the respondent to make necessary arrangements to contest the suit on the basis of written statement that was already filed.

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NC: 2024:KHC:5599 WP No. 19141 of 2018

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There is absolutely no reasons assigned in that regard. It is brought to the notice of the Court that respondent as plaintiff had filed OS.81/1983 against the plaintiff seeking declaration that he is the owner of the property and for permanent injunction. The said suit was came to be dismissed on 24.02.2000. Respondent has preferred an appeal in RA No.347/2006 which also came to be dismissed on 26.11.2010. RSA No.239/2011 also came to be dismissed on 23.10.2019. Therefore, the first round of litigation which had started during 1983 ended on 23.10.2019 on dismissal of RSA No.239/2011.

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It is brought to the notice of the Court that respondent had filed the suit OS.No.626/2002 seeking permanent injunction against the plaintiff in OS.No.81/1983. The said suit came to be dismissed on 29.10.2009 and the RA No.302/2009 preferred against the judgment and decree also came to be dismissed vide order dated 01.12.2009. Thus, the said judgment has reached finality and thus second round of litigation started by the respondent during 2002 ended during 2009.

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The facts stated above disclose that respondent has

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failed in his attempts in the first round of litigation and also in

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NC: 2024:KHC:5599 WP No. 19141 of 2018

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the second round. In the meantime, petitioner No.1 as plaintiff filed OS.No.772/2002 and got decree on 04.07.2008. The respondent was represented by the Advocate and filed written statement but has not chosen to contest the suit. It is pertinent to note that the respondent while filing the petition categorically admitted that plaintiff No.1 had already taken possession of the property by the executing decree in execution case No.476/2008 during February 2009 and execution case is also disposed off. Under such circumstances, nothing remains to be considered by the trial Court. Moreover, there are no just and reasonable cause for setting aside the judgment and decree dated 04.07.2008. When the respondent could prosecute two rounds of litigation as stated above and failed in his attempt on both the occasions, he cannot be permitted to contest the suit once again which is of the year 2002. Moreover, even in this petition, learned counsel for the respondent is absent. It shows that he is not interested in prosecuting the case on merits. Hence, I do not find any merits in the contention taken in Mis.Case.No.13/2019.

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I have gone through the impugned order passed by the trial Court allowing Mis.No.13/2009 and restoring the suit

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NC: 2024:KHC:5599 WP No. 19141 of 2018

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to its original file. The trial court without considering the contentions of the parties and without considering any of the facts discussed above, proceeded to allow the petition only on the ground that liberal approach is to be adopted while considering such miscellaneous cases and held that no loss or prejudice will be caused to respondent. It has also observed that meritorious claim of the parties cannot be curbed without giving adequate opportunity. It is unfortunate that the trial Court ignoring all these facts and circumstances as discussed above which is having checkered history from 1983, that too when the plaintiff has already taken possession of the property under due process of law and the execution is closed as fully satisfied mechanically proceeded to pass the impugned order. In view of the above, I do find considerable force in the contention taken by the petitioner No.1 who is the original plaintiff. Petitioner No.2 is the subsequent purchase of the property. Hence, I am of the opinion that the impugned order is liable to be set aside.

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Accordingly, I proceed to pass the following:

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ORDER

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a) Writ petition is allowed .

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NC: 2024:KHC:5599 WP No. 19141 of 2018

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b) The order dated 04.04.2018 passed in Mis. Petition No.13 of 2009 on the file of the learned III Addl.I Civil Judge and JMFC., Mysore is set aside. Consequently, Mis.Case No.13/2009 is dismissed.

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SD/JUDGE

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BH List No.: 1 Sl No.: 12

L v. Ramesh v the Community Party

Case brief

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L v. Ramesh v the Community Party

Case brief

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