Sri Sadananda L Vs Sri M Selva

SMT. SELVI W/O SRI. M. BALAN, AGED ABOUT 44 YEARS, RESPONDENT NO.2 AND 3 ARE RESIDING AT HOUSE NO.9, APPAZOPPA GARDEN, MTB ROAD, KALASIPALYA, BENGALURU - 560 002.

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…RESPONDENTS

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(BY SRI. P.N. ANANTHA NARAYANA, ADVOCATE FOR R2 & R3; NOTICE TO R1 IS HELD SUFFICIENT VIDE ORDER DATED 28.01.2025)

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2 - NC: 2025:KHC:4352 MFA No. 8435 of 2018

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THIS MFA IS FILED U/O. 43 RULE 1(C) OF CPC, AGAINST ORDER DATED. 31.03.2017, PASSED IN MISC. NO.221/2012, ON THE FILE OF THE XI-ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, DISMISSING THE PETITION FILED U/O.9 RULE 9 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, 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/plaintiff to set aside the order dated 31.03.2017 passed in Misc.No.221/2012 by the XI Addl City Civil Court, Bengaluru city and also set aside the order dated 08.03.2012 in O.S.No.6797/2009 on the file of XI Addl. City Civil court and Bengaluru City.

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Heard the argument of learned counsel for the appellant and learned counsel for the respondents is absent.

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The case of the appellant in nutshell is that the plaintiff filed the suit in O.S.No.6797/2009 for the specific performance of contract, directing the defendant to execute the sale deed on the agreement of sale entered into between them on 19.1.2009. After the appearance of the defendants, they have filed the written statement and issues said to have

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framed. The matter was posted for evidence of the plaintiff and that on 8.3.2012, the plaintiff was not able to appear before the court. The advocate also was absent. Hence, the suit was dismissed for non prosecution. It is further alleged that immediately, the appellant filed an application under Order IX Rule 9 of CPC for setting aside the order of dismissal in Misc.No.221/2012 and also examined as P.W.1 and marked the documents. The defendants were placed ex-parte and not contested the matter. Inspite of the same, the Trial Court dismissed the miscellaneous application. Hence, he is before the court.

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Learned counsel for the appellant submits that the appellant was unable to appear before the court, as he was under treatment. Learned counsel also was not able to appear in the Trial Court, at that time there was some clash between the police and advocates and the advocates were abstained from attending the court. Such being the case, the Trial Court ought to have given a chance to give further evidence and an agreement of sale was entered into between them and this fact should be established in court of law. The Trial Court inspite of ex-parte of the defendant, the miscellaneous application came

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NC: 2025:KHC:4352 MFA No. 8435 of 2018

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to be dismissed and he is having good ground on merits. Hence, prayed fro allowing the appeal.

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The respondents appeared though counsel but the counsel remained.

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Having heard the arguments and perused the records which reveals, ofcourse the suit was dismissed for non prosecution. The plaintiff cannot file a fresh suit, as there was a bar and he has to restore the suit by filing application under Order IX Rule 9 of CPC. As on the date of dismissal i.e, on 8.9.2012, it is known fact, that there was clash between police and advocate in City Civil Court, Bangalore and the advocates said to have injured and they had abstained to attend the court and there was case and counter case registered against the press, police, as well as advocates. Such being the case, the Trial Court ought not to have dismissed the suit for non prosecution. It should have waited and issued notice to the appellant/plaintiff when the advocates remained abstained from

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the court. That apart, when the dismissal application was filed by the appellant and marked documents for non appearance, he said to be taking treatment at Doddamavalli and he is

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residing in Shanthi nagar . The Shanthi Nagar, Doddamavallai is not far away from the places, it is all adjacent places. Therefore, taking treatment in Doddamavallai and appellant residing in Shanthi Nagar cannot be doubted regarding treatment. That apart, when the defendant/respondent not contested the matter and the plaintiff given affidavit and marked documents, especially medical documents, the Trial Court ought to have accepted the same and restored the original suit, but the Trial Court dismissed the miscellaneous application. That too the trial Court took 5 years for disposing miscellaneous application, for restoration of the dismissal of the suit. It is unfortunate, that learned counsel also, though filed appeal in 2018 keeping pending for almost 7 years without arguing the matter. Be as it may, the Trial Court committed error in dismissal of the application inspite of ex-parte of the defendant in Misc.No.221/2021. Such being the case, if an opportunity requires to be given to the plaintiff to restore the matter, also the defendants did not contest the matter while appearing before this court. Such being the case, I am of the view, the appeal deserves to be allowed.

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NC: 2025:KHC:4352 MFA No. 8435 of 2018

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Accordingly, the appeal is allowed. The order of dismissal dated 31.3.2017 is M.A.No.221/2021 on the file of XI Addl. City Civil Court, Bengaluru City, is hereby set aside.

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The miscellaneous application is allowed.

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Consequently, the suit in O.S.No.6797/2009 on the file of XI Addl. City Civil Court, Bengaluru City is restored to the original file.

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The appellant shall deposit Rs.10,000/- before the Trial Court for the District Legal Services authority.

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Appellant shall appear before the Trial Court without any further notice on 17.2.2025.

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The Trial Court if required to issue notice to the other side and start the trial and dispose the matter.

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Sd/(K.NATARAJAN) JUDGE