Sri Swamy Gowda Vs Sri K N Raje Gowda

THIS MFA IS FILED U/O 43, RULE 1(D) OF THE CPC, AGAINST THE ORDER DATED:2.11.2011 PASSED IN UN REG MISC NO OF 2011 ON THE FILE OF THE CIVIL JUDGE(SR.DN), JMFC, KRISHNARAJPET(DIST.MANDYA), DISMISSING THE PETITION FILED U/O 9, RULE 13, R/W SEC 151 OF CPC.

¶16

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

¶17

2 -

¶18

NC: 2025:KHC:5625 MFA No. 9463 of 2012

¶19

CORAM: HON'BLE MR JUSTICE K.NATARAJAN

¶20

ORAL JUDGMENT

¶21

This appeal is filed by the appellant/plaintiff under Order 43 Rule (1) (d) of CPC for setting aside the order passed by the Civil Judge, JMFC, K.R.Pete passed in Misc.No.8/2011 filed by the appellant came to be dismissed on the delay application for setting aside the ex-parte judgment passed in the RA.No.60/2006.

¶22

Heard the arguments of learned counsel for the appellant and respondent is served and unrepresented.

¶23

The case of the appellant is that the appellant filed the suit for bare injunction against respondent in O.S.No.305/1994 restraining the defendants from interfering with the possession and enjoyment of schedule property where the defendant was trying to form road on the suit schedule property. In the said schedule, the Trial Court at Srirangapatna Patna (S.R. Patna) allowed and decreed the suit by granting injunction against the defendant/respondent from interfering with the suit schedule property. Being aggrieved with the same, the defendant preferred an appeal to the Senior Civil Judge Court, S.R. Patna by filing R.A.No.87/2000. Later, on the point of jurisdiction, it

¶24

3 -

¶25

NC: 2025:KHC:5625 MFA No. 9463 of 2012

¶26

was transferred to Sr.Civil Judge, K.R.Pete and renumbered as R.A.No.60/2006. After the transfer of the case, a notice was issued to the appellant (plaintiff) notice was not served and 2^nd time notice was issued, it was not served. However, the first appellate considered as absent and after hearing the arguments, allowed the appeal filed by the defendant and dismissed the suit of the plaintiff. After some time, the plaintiff got to know that his suit was dismissed by the first appellate court. Hence, he has moved miscellaneous application under Order 9 Rule 13 of CPC for setting aside the ex-parte judgment of the first appellate court. Though a number was given as Miscellaneous No.8/2011, but later it was struck down and considered as I.A. under order 5 of Limitation Act, where there was delay of 1450 days in filing the application for restoration or setting aside the ex-parte judgment. The first appellate court without providing an opportunity to lead evidence in order to show the sufficient cause for the delay in filing the application, but straight away dismissed the appeal on the limitation. Hence, the appellant is before this court.

¶27

This appeal came to be filed in the year 2012 and no notice was served on the respondent for almost 13 years, very

¶28

4 -

¶29

NC: 2025:KHC:5625 MFA No. 9463 of 2012

¶30

recently notice was served and they were unrepresented. On careful reading of the relief sought by the plaintiff in the suit and judgment of the first appellate court for setting aside the decree and dismissing the suit, which goes to show that though the suit was decreed by the Trial Court, but the first appellate court reversed it on the ground, the defendant produced the documents to show that they were not forming any road on the schedule property belonging to the plaintiff and it is only his apprehension that they may form any road. However, there is a road existing already on the land, which is leading to other survey lands as per the village map at Ex.D11. Even otherwise, the documents produced therein which is there is already having existing road. Therefore, these documents said to be not considered by Trial Court and therefore the first appellate court reversed the judgment and stated that, when there is already road in the schedule property which is a pathway and also found in the village map, such being the case, there is no question of forming the road by the defendant and the suit of the plaintiff is illusionary and apprehensive that defendant may try to form a road. Therefore, it is not correct. Hence, the suit of the plaintiff came to be dismissed. Ofcourse, learned counsel for the appellant contended that when the

¶31

5 - NC: 2025:KHC:5625 MFA No. 9463 of 2012

¶32

plaintiff is able to show his lawful possession of the schedule property, when defendant is not trying to form or interfere with the schedule property, the suit could have been decreed in part. However, there is no evidence lead by the plaintiff, that defendant was trying to form the road. On the other hand, in the cross examination, the plaintiff admitted there is a road already existing as per Ex.D21 and D22, where the defendants have approached the Tahzildar K.R.Pete for surveying the existing road near the schedule property or on the schedule property, is not in dispute as per village map at Ex.D11. Such being the case, though the plaintiff filed suit for injunction restraining the others, but there is no documents produced by the plaintiff for having attempted to form the road and defendants also not an authority either Village panchayath or Taluk Panchayath in order to form road in the schedule property without any acquisition proceedings. Such being the case, the question of granting injunction in favour of the plaintiff does not arises. However, the plaintiff is said to be in lawful possession is not in dispute. The suit was decreed and appeal was allowed in 2007 and for last 18 years there is no complaint as against the defendant by the appellant whether defendant is still trying to interfere or making any effort to

¶33

6 - NC: 2025:KHC:5625 MFA No. 9463 of 2012

¶34

form the road. Such being the case, even if this appeal is allowed, restoring the miscellaneous case, even for setting aside the ex-parte judgment and passing the judgment in the regular appeal, is not required and is nothing but waste of time of the court. As there is no interference, if at all the defendant attempts to form the road, he could not have kept quite for last 20 years without making any effort to form the road. Such being the case, question of allowing this appeal and restoring the regular appeal for fresh consideration, does not arise. However, if any further interference, by any person, the plaintiff is always at liberty to file fresh suit against them for seeking injunction, if so required, if so desired. Such being the case, the appeal is devoid of merits and liable to be dismissed.

¶35

Accordingly, the appeal is hereby dismissed with liberty.

¶36

Sd/(K.NATARAJAN) JUDGE

¶37

AKV List No.: 1 Sl No.: 22 CT:SK

Sri Swamy Gowda v. Sri K N Raje Gowda

Case brief

What is this about?

What did the court decide?

Sri Swamy Gowda v. Sri K N Raje Gowda

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Shri K P Ghanshyam Vs Shri K L Swamy

V.Kannan Vs B.G.M.L.

Sri.B.T.Chandrashekar Vs Smt.Sujana Rani

M S Nagesh Vs K S Padmakshegowda

Sri. Ramakrishnappa N., Vs Smt. Manjula H.

Sri K S Prasanna Kumar Vs Sri Armugam a