Smt Bhagyamma Vs Sri Nagaraju

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NC: 2025:KHC:5004 MFA No. 6144 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN MISCELLANEOUS FIRST APPEAL NO. 6144 OF 2022 (CPC-)

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BETWEEN:

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SMT. BHAGYAMMA HINDU, AGED ABOUT 59 YEARS, W/O MR. RANGEGOWDA, D/O LATE. BASAVAIAH, R/AT J.B.SARAGORU, HAMPAPURA HOBLI, H.D.KOTE TALUK, MYSURU DISTRICT.

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SMT. PUTTALAKSHMI HINDU, AGED ABOUT 56 YEARS, W/O MR. RAJU, D/O LATE. BASAVAIAH, R/AT DEVARASANAHALLI, KASABANA HOBLI, NANJUNDGUD TALUK, MYSURU DISTRICT.

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Digitally signed by VEDAVATHI A K Location: High Court of Karnataka

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SMT. DEVI HINDU, AGED ABOUT 54 YEARS, W/O MR. CHANDRA, D/O LATE BASAVAIAH, R/AT HOUSE NO.112, 3^rd CROSS, N.R MOHALLA, MYSURU.

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…APPELLANTS

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(BY SRI. SHIVARAMU H C., ADVOCATE)

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AND:

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SRI. NAGARAJU HINDU, AGED ABOUT 60 YEARS, S/O LATE BASAVAIAH,

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SRI. KRISHNA HINDU, AGED ABOUT 69 YEARS,

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NC: 2025:KHC:5004 MFA No. 6144 of 2022

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S/O LATE BASAVAIAH,

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BOTH ARE R/AT HOUSE NO.2764, NEW NO.CH-19, 1^ST MAIN ROAD, RAILWAY GATE, K.G. KOPPALUR, MYSURU.

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M/S BHARATH EARTH MOVERS EMPLOYEES HOUSE BUILDING, CO-OPERATIVE SOCIETY, BELVADI POST, KASABA HOBLI, MYSURU TALUK, MYSURU DISTRICT.

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REPRESENTED BY ITS SECRETARY.

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SMT. YASHODA HINDU, AGED ABOUT 50 YEARS, W/O NINGARAJU, D/O LATE BASAVAIAH, R/AT NO.220, K.R. MARKET ROAD, SOPPINAKERE, MYSURU.

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SMT. JAYAMMA HINDU, AGED ABOUT 42 YEARS, W/O PRAKASHA, D/O LATE BASAVAIAH, R/AT NO.660, CHINGERI KOPPALUR, JAYANAGAR, MYSURU.

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…RESPONDENTS

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(BY SRI. SHARADI S. SHETTY, ADVOCATE FOR R4 & 5; VIDE ORDER DATED:12/10/2023 NOTICE TO R1 HELD SUFFICIENT;

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R2 & 3 ARE SERVED & UNREPRESENTED)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(c) OF CPC, AGAINST THE ORDER DATED 20.06.2022 PASSED IN MISC.NO.39/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE PETITION FILED UNDER ORDER IX RULE 9 READ WITH SECTION 151 OF CPC, WITH COST OF RS. 500/-.

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

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3 - NC: 2025:KHC:5004 MFA No. 6144 of 2022

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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 appellants/plaintiff Nos.1 to 3 under Order XLIII Rule 1(c) of CPC., for setting aside the order of dismissal of the Misc.Petition No.39/2018 dated 20.06.2022, by the I Addl. Senior Civil Judge & CJM Mysuru, for having dismissed the application under Order IX Rule 9 of CPC., for restoration of the original suit in OS.No.1055/2013, which was dismissed for non

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prosecution on 12.04.2018.

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Heard the arguments of learned counsel for the appellants. Learned counsel for respondent Nos.4 and 5 present. Respondent Nos.1 to 3 served, unrepresented.

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The case of the appellant before the trial court is

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that the plaintiffs have filed the suit for partition and separate possession in respect of suit schedule property in OS.No.1055/2013. The defendants appeared in the trial

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court and filed written statement and issues have been framed. Thereafter, the plaintiff No.5/respondent No.5 was

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NC: 2025:KHC:5004 MFA No. 6144 of 2022

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examined as PW.1 on 10.12.2015. The respondent Nos.4 and 5 are the plaintiffs in the original suit. After the examination in chief matter was posted for cross examination. The PW.1 not tender for cross examination, hence the trial court expunged the evidence of the PW.1 for non appearance and dismissed the suit of the plaintiffs for non prosecution vide order dated 12.04.2018. Feeling aggrieved by the same, the plaintiff Nos.1 to 3 filed Misc. Application before the civil court. The plaintiff Nos.4 and 5 not joined, hence they made as respondent Nos.4 and 5. Subsequently, the petitioner No.2-Puttalakshmi examined as PW.1 and got marked two documents. The respondent Nos.1 to 3 were contested the matter and finally the Misc. Application came to dismissed by the trial court. Hence, plaintiff Nos.1 to 3 are before this court and respondent Nos.4 and 5 are the plaintiff Nos.4 and 5 before this court. The defendant Nos.1 to 3 remained absent.

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5 - NC: 2025:KHC:5004 MFA No. 6144 of 2022

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Learned counsel submits that the mother of the plaintiffs was died, he was under continuous treatment, therefore they could not appear before the court. She was died on 14.07.2017 and due to miscommunication the plaintiff not able to come to the court for tendering evidence, by that time suit was dismissed for non prosecution. It is contended that the plaintiffs are having good case on merits, the plaintiffs are the daughters, the defendant Nos.1 and 2 sold the property of the joint family without consent of the plaintiff to the third defendant, therefore if the suit is restored, they can establish their case and the Trial Court committed an error in dismissing the application without appreciating the documents. Hence, prayed for allowing the appeal.

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Considering the documents, of course the plaintiff produced two documents, order sheet and copy of the plaint but the death certificate as well as medical documents of the mother was not produced before the Trial Court while examining themselves in the misc.

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NC: 2025:KHC:5004 MFA No. 6144 of 2022

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petition. Therefore, the Trial Court constrained to dismiss the misc. application. However, on perusal of the medical

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records, there was continuous treatment taken by the mother of the plaintiff. Subsequently, she was died on 14.07.2017. There is a sufficient ground given by the plaintiff for non appearance before the Trial Court. And apart from that if the suit of the plaintiff is not restored for prosecution there is a bar for filing a fresh suit under Order IX Rule 9 of CPC., such being the case, in the interest of justice, the Trial Court ought to have allow the Misc. petition and to restore the suit, dismissing the application will leads to the multiplicity of proceedings.

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Accordingly, the appeal is allowed.

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The order of the I Addl. Senior Civil Judge & CJM Mysuru, in Misc.Petition No.39/2018 dated 20.06.2022, is hereby set aside.

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NC: 2025:KHC:5004 MFA No. 6144 of 2022

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The petition filed by the appellant under Order IX Rule 9 of CPC., is hereby allowed.

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Dismissal of the original suit in OS.No.1055/2013 dated 12.04.2018, is hereby set aside.

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The suit of the plaintiff is restored to the original file in OS.No.1055/2013, at the cost of Rs.5,000/- by the appellant and Rs.5,000/- by the respondent Nos.4 and 5 to be deposited before the District Legal Services Authority, Mysuru, within two weeks.

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The appellant shall appear before the Trial Court without any further notice by 24.02.2025.

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Sd/- (K.NATARAJAN) JUDGE

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SRK List No.: 1 Sl No.: 14 CT:SK

Smt Bhagyamma v. Sri Nagaraju

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Smt Bhagyamma v. Sri Nagaraju

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