The Karnataka High Court dismissed a writ petition challenging the restoration of a civil suit dismissed for non-prosecution after a nine-year delay. The court found the plaintiff's reasons unconvincing but imposed higher costs on her.
Cost of Rs.5,000/- imposed by Trial Court enhanced to Rs.50,000/- payable by plaintiff to respondents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 4583 OF 2023 (GM-CPC)
BETWEEN:
Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA
…PETITIONERS
(BY SRI. SHIVARAJ N. ARALI, ADVOCATE)
AND:
R/O VISHALAGUPTA COLONY, PAMPA NAGARA, 2ND CROSS, SHIVAMOGGA.
…RESPONDENTS
(BY SRI. VEERABHADRA SWAMY H.P., ADVOCATE FOR RESPONDENT NO.1;
VIDE ORDER DATED 10.04.2023, SERVICE OF NOTICE TO RESPONDENT NOS.2 TO 8 IS DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-A, THE ORDER DATED 04.01.2023 PASSED BY THE HON'BLE SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA IN CIVIL MIS NO. 1/2021.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The respondent Nos.2, 3 and 7 in Civil Misc.No.1/2021 on the file of the Senior Civil Judge and JMFC, Shikaripura have filed this petition challenging an order dated 04.01.2023, by which, a petition filed under Order IX Rule 7 of Civil Procedure Code was allowed and the suit in O.S.No.36/2011 which was dismissed for non-prosecution on 15.09.2012 was restored.
NC: 2024:KHC:43052 WP No. 4583 of 2023
2.(i) The suit in O.S.No.36/2011 was filed for partition and separate possession of plaintiff 's share in the suit schedule properties. The suit was dismissed for non-prosecution on 15.09.2012. Later in the year 2021, plaintiff filed a petition in Civil miscellaneous No.1/2021 under Order IX Rule 7 of Civil Procedure Code to set aside the order of dismissal and to restore the suit and along with the petition, an application for condonation of delay was also filed. The plaintiff contended that she had two daughters, one of whom was residing in United States of America. She claimed that her husband was suffering from ill-health. She used to visit her daughter's house once in a year. She claimed that due to her frequent visits to United States of America, she could not appear before the Court or contact her advocate and claimed that she misplaced the contact details of her advocate, as a result of which, she could not take steps for her appearance in the Court. She claimed that the delay in filing the application was neither intentional nor deliberate but due to a genuine reason.
(ii) The Trial Court after considering the application for condonation of delay allowed it. Later the plaintiff was examined as PW.1 and she marked Exs.P1 to P3. The
defendant No.3 in the suit was examined as RW.1 and he marked a document as Ex.R1. Based on the oral and documentary evidence, the Court held that the plaintiff had produced her passport which showed that she frequently traveled to United States of America. It also held that the plaintiff was not a permanent resident of Shikaripur but was a resident of Mysuru and therefore, it was quite possible that she could not contact her advocate in time to pursue the suit. The Trial Court therefore allowed the application and set aside the order dismissing the suit and restored the suit for reconsideration.
the suit. He contends that adequate opportunity was not granted to the defendants to file objections to the application for condonation of delay. Besides, he contends that enormous delay of 09 years was not satisfactorily explained by the plaintiff. He therefore, contends that the impugned order passed by the Trial Court is without application of mind and without considering the veracity of the reasons given by the plaintiff.
NC: 2024:KHC:43052 WP No. 4583 of 2023
nearly 09 years from the date of dismissal. The reasons assigned by the plaintiff is totally not convincing, as the plaintiff once having filed the suit, is bound to pursue the suit till its logical end. Besides this, she contends that she lost contact of her advocate and that thereafter she was involved in some domestic issues. This at any rate cannot be a ground to recall the order dated 15.09.2012. However, having said that, since the plaintiff had sought for substantial relief, the same cannot go uncontested.
NC: 2024:KHC:43052 WP No. 4583 of 2023
be later than six months from the date of framing of issues.
Sd/-
(R. NATARAJ) JUDGE
HJ
List No.: 1 Sl No.: 6
3 issues framed by the court
Whether the trial court erred in recalling an order dismissing a suit filed for partition and possession after a nine-year delay.
Whether the plaintiff's reasons for condoning delay including travel to the USA and loss of contact with advocate are sufficient.
What relief regarding costs is appropriate in light of the substantial delay in pursuing the suit.
2 provisions across 2 enactments
SMT. MANJULA W/O. JAGANNATHAPATIL
SRI. DEEPAK PATIL S/O. JAGANNATHA PATIL
SRI. RAVINDRA PATIL S/O. LATE T. JAYA
SMT. SAHRADI W/O JAGADEEDHA K.B.
R. NATARAJ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
