Smt. Shanta S Goud Vs Sri. Laxminarayana

SMT GOURAMMA W/O SRI MUNIVENKATAPPA AGED ABOUT 60 YEARS R/O A/18, LAXMINARASIMAIAH NILAYA, NEW TELEPHONE EXCHANGE, DOMMASANDRA, SARJAPURA HOBLI ANEKAL TALUK, BENGALURU - 562132

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…RESPONDENTS

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2 - NC: 2025:KHC:1153 MFA No. 3272 of 2018

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(NOTICE TO R1 TO R3 HELD SUFFICIENT V/O DATED 13.01.2025)

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THIS MFA IS FILED U/O.43 RULE 1(d) OF THE CPC, AGAINST THE ORDER DT.02.03.2018 PASSED IN MISC. NO.783/2014 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH NO-28), DISMISSING THE PETITION FILED U/O.IX RULE 13 R/W SEC.151 OF CPC.

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

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed by the appellant/petitioner under Order XLIII Rule 1(d) of CPC for setting aside the order dated 02.03.2018, passed by the XIV Addl. City Civil Judge, Bengaluru in Misc.No.783/2014, whereby the application filed by the appellant under Order IX Rule 13 of CPC was dismissed.

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Heard the learned counsel for the appellant.

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The appellant was the plaintiff before the trial

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court in O.S.No.5423/2005 and respondents are the defendants. The respondents though notified through

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paper publication, have remained absent. Hence notice is

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held sufficient.

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The case of the appellant/plaintiff before the trial court is that the plaintiff filed a suit for declaration and injunction for declaring the plaintiff as the owner in lawful possession and enjoyment of the suit schedule property. The suit summons was issued to the defendants/respondents. They have been placed ex parte before the trial court. Subsequently, the matter was posted for evidence of the plaintiff and she let in her evidence and marked documents. The matter was posted for cross-examination of the plaintiff on 04.03.2014. The plaintiff did not appear before the court and hence case was adjourned to 29.04.2014 and 02.07.2014 and finally to 19.08.2014. On that day also, the plaintiff and her counsel failed to appear before the trial court. Hence the suit of the plaintiff came to be dismissed for nonprosecution. Subsequently, the plaintiff filed a Miscellaneous Application under Order IX Rule 13 of CPC

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for setting aside the order of dismissal of the suit for nonprosecution. There was a delay of 37 days in filing the said Miscellaneous application and in order to show cause, the plaintiff examined herself as PW-1 and got marked two documents i.e., Ex.P1 is the certified copy of the order sheet in O.S.No.5423/2005 and Ex.P2 is the discharge summary of the plaintiff.

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It was the contention of learned counsel for the plaintiff before the trial court that the plaintiff fell ill due to knee ailment and was admitted to hospital on 20.06.2014 and underwent surgery and was discharged only on 25.06.2014. Further, the plaintiff was advised bed rest for 3 months. Meanwhile, the case was dismissed by the trial court on 19.08.2014, for non-prosecution. Learned counsel contended that the plaintiff is a single woman and if the delay is not condoned and suit is not restored, the plaintiff will be put to hardship and loss. Learned counsel further contended that the defendants were placed ex parte before the trial court. Therefore, he prayed for

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setting aside the order of dismissal of the suit. But the trial court after considering the evidence and material on record, dismissed the application vide the impugned order dated 02.03.2018. Being aggrieved by the same, the plaintiff is before this court.

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Inspite of repeated notices issued to the defendants/respondents by the trial court in the original suit and miscellaneous application, respondents were through out absent and they have not appeared to contest the matter and have been placed ex parte continuously. Even before this court, though notice was issued by way of paper publication, they remained absent .

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Having heard the arguments and perused the records, especially the impugned order passed by the court, it reveals that the suit was dismissed for nonprosecution. When the defendants appear and plaintiff fail to appear, the suit can be dismissed under Order IX Rule 8

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of CPC. Under Order IX Rule 9 of CPC, there is a bar for the plaintiff for filing a fresh suit. If the suit is dismissed

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for default under Order IX Rule 2 of CPC, the plaintiff can file an application under Order IX Rule 4 of CPC for restoration of the suit. If the suit was dismissed after the appearance of the defendants, before hearing evidence, the plaintiff can file a fresh suit Order IX Rule 4 of CPC. In this case, the defendants did not appear and were placed

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ex parte. Therefore, the suit ought to have been dismissed under Order IX Rule 3 of CPC where neither party appears or when the defendants appear, it will be under Order IX Rule 8 of CPC. But the defendants were placed ex parte . When such being the case, the plaintiff ought to have filed a suit for restoration under Order IX Rule 4 of CPC. However, there was a delay of 37 days in filing the Miscellaneous application. Merely because a wrong provision was quoted by the learned counsel for the appellant, the appellant/litigant cannot be punished by the court and the relief cannot be rejected or refused. A litigant cannot be punished for the mistake committed by the advocate by quoting wrong provision.

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7 -

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NC: 2025:KHC:1153 MFA No. 3272 of 2018

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This being the case, I am of the view that the suit ought to have been dismissed under Order IX Rule 3 of CPC, wherein the defendants were placed ex parte and the plaintiff also failed to appear before the trial court. Even the plaintiff can file a fresh suit or restore the earlier suit under Order IX Rule 4 of CPC. Therefore, I am of the view that though the trial court has dismissed the application filed by the appellant in Misc.No.783/2014, however it has not given appropriate reasons for dismissing the application and has also not considered Ex.P2, the discharge summary of the plaintiff.

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It is submitted that the plaintiff/appellant has lost possession over the suit schedule property. The plaintiff is required to seek possession from the defendants. Therefore, fresh suit cannot be maintainable and the same is barred under Order IX Rule 9 of CPC. Therefore, the application filed by the plaintiff/appellant is required to be allowed by the trial court. But the trial court, merely on the ground that each days' delay was not

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explained and that a wrong provision was quoted, rejected the application for restoration of the suit. When the defendants are placed ex parte , the court should have sympathetically considered the plaintiff's case. When such being the case, the order under challenge, deserves to be set aside. Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The order dated 02.03.2018, passed in Misc.No.783/2014 by the XIV Addl. City Civil Judge, Bengaluru, is hereby set aside.

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The application in Misc.No.783/2014 is allowed by condoning delay in filing the application. Consequently, the suit in O.S.No. 5423/2005 is hereby restored to its original file, on payment of cost of Rs.10,000/- to be deposited by the appellant to the District Legal Services Authority, before the City Civil Court.

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The plaintiff/appellant shall appear before the trial court on 27.01.2025, without awaiting any further notice.

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NC: 2025:KHC:1153 MFA No. 3272 of 2018

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The trial court shall make an endeavour to dispose of the matter as early as possible. If required, a fresh notice can also be issued to the defendants/respondents as it is an old matter.

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Sd/(K.NATARAJAN) JUDGE

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RD

Smt. Shanta S Goud v. Sri. Laxminarayana

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Smt. Shanta S Goud v. Sri. Laxminarayana

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