Smt Varanandamma (Dead) Vs Smt Lakshmamma

REPRESENTED BY THEIR GPA HOLDER SRI H. RAVISHANKAR S/O P. HANUMANTHAIAH R/AT NO.80, 4TH CROSS 11TH MAIN, BINNY LAYOUT 2ND PHASE, VIJAYANAGARA BENGALURU - 560 040.

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…PETITIONERS

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(BY SRI NAGAIAH, ADV.)

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AND:

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SMT. LAKSHMAMMA W/O RAMAIAH MAJOR IN AGE R/AT CHINNAKURUCHI VILLAGE, KENGERI HOBLI BENGALURU SOUTH TALUK BENGALURU-560 060.

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SRI DODDANANJAIAH S/O LATE ERAIAH MAJOR IN AGE R/AT GAVIYANAPALYA GANGASANDRA DAKHLE K.GOLLAHALLI POST KENGERI HOBLI BENGALURU SOUTH TALUK BENGALURU - 560 060.

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SRI JADIYAPPA S/O LINGAIAH MAJOR IN AGE R/AT GAVIYANAPALYA GANGASANDRA DAKHLE K.GOLLAHALLI POST KENGERI HOBLI BENGLAURU SOUTH TALUK BENGALURU - 560 060. 4. SRI.SATHYANARAYANA REDDY S/O LATE SRINIVASA REDDY, MAJOR IN AGE, R/AT GAVIYANAPALYA, GANGASANDRA DAKHLE, K.GOLLAHALLI POST,

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NC: 2025:KHC:45064 WP No. 9939 of 2019

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HC-KAR

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KENGERI HOBLI, BENGALURU SOUTH TALUK, BENGALURU-560 060.

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…RESPONDENTS

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(BY SRI VRATHIN N.K, ADV., FOR SRI Y.K. NARAYANA SHARMA, ADV., FOR R-2; SRI MADHUKAR NADIG, ADV., FOR R-3; R-1 SERVED - UNREPRESENTED V/O/D 09.06.2025, PETITION IS DISMISSED AS ABATED AS AGAINST R-4)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INIDA PRAYING TO QUASH THE ORDER PASSED BY THE 1ST ADDL SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT IN MISC.NO.49/2011 DTD 12.12.2018 VIDE ANNEXURE-C.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the

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Constitution of India is filed with a prayer to set aside the order dated 14.06.2011 passed in O.S.No.228 of 2005 by the Court of Principal Civil Judge (Sr.Dn), Bengaluru Rural District vide Annexure-A and the order dated 12.12.2018 passed in Misc.P.No.49 of 2011 by the Court of I Addl. Senior Civil Judge, Bengaluru Rural District.

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Heard learned counsel appearing for the parties.

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HC-KAR

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Suit in O.S.No.228 of 2005 was filed by the petitioners herein before the jurisdictional civil Court seeking the relief of declaration and injunction in respect of the suit schedule property. When the suit was at the stage of recording plaintiffs' evidence, vide order impugned dated 14.06.2011, the suit was dismissed for non-prosecution by the trial Court and therefore plaintiffs in O.S.No.228 of 2005 had filed a miscellaneous petition under Order IX Rule 4 r/w Section 151 of CPC, with a prayer to set aside the order dated 14.06.2011 passed in O.S.No.228/2005 and to restore the suit on file. The trial Court, vide the order impugned dated 12.12.2018 has dismissed Miscellaneous No.49 of 2011 and it is under these circumstances, petitioners / plaintiffs are before this Court.

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Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that though the petitioners have offered satisfactory explanation for

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their absence before the trial Court on three dates, after the issues were framed. The trial Court has failed to appreciate the same and has erred in dismissing Miscellaneous No.49 of 2011. He submits that copy of the General Power of Attorney is filed

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HC-KAR

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in O.S.No.228 of 2005 and there is no need to file a separate

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copy of the said document even along with the miscellaneous petition. The trial Court has therefore erred in rejecting the miscellaneous petition for the reason that the General Power of Attorney of the petitioners was not found. He submits that General Power of Attorney holder is the son-in-law of the plaintiff no.1 and he has a personal knowledge about the proceedings in the suit. If an opportunity is not granted to the plaintiffs to prosecute their suit, they will be put to irreparable hardship and injury.

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Per contra , learned counsel appearing for the respondents have argued in support of the orders impugned. They submit that the petitioners were not diligent in prosecuting the proceedings throughout and they were not diligent either before the trial Court in prosecuting the suit or the miscellaneous proceedings nor they are diligent in prosecuting this petition, which is filed in the year 2019. If the orders impugned are set aside, the defendants who are aged will be put to inconvenience. Accordingly, they pray to dismiss the petition.

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HC-KAR

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Perusal of the material on record would go to show

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that, though the suit was at the stage of framing issues on 19.02.2009 itself, issues were framed in suit only on 20.08.2010. The matter thereafter was posted for plaintiffs' evidence on 12.11.2010 and was adjourned to 17.02.2011 and 18.04.2011. On all the aforesaid three dates, the plaintiffs were not present and therefore on the next date of hearing i.e. on 14.06.2011 since there was no representation on behalf of the plaintiffs, the suit was dismissed for non-prosecution. Petition to recall the said order dated 14.06.2011 was filed before the trial Court on 14.07.2011 and therefore the petition filed to recall the order dated 14.06.2011 was in time. The miscellaneous petition filed under Order IX Rule 4 r/w Section 151 of CPC was numbered as Miscellaneous No.49 of 2011. It was opposed by the contesting defendants by filing objections and during the course of enquiry, power of attorney of the plaintiff namely H Ravi Shankar was examined as P.W.1 and defendant no.2 was examined as R.W.1.

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It is the case of the petitioners that their power of attorney P.W.1 was unwell and likewise their counsel who was

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HC-KAR

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appearing for them in the suit also had some health issue and it is only for the said reason there was no appearance on behalf of the plaintiffs before the trial Court after the issues were framed. The trial Court on the ground that no documentary evidence was produced in support of the contention urged on behalf of the petitioners that their General Power of Attorney holder and counsel were not well has rejected miscellaneous petition. This approach of the trial Court in my considered view is unreasonable. The Trial Court has also observed that copy of

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the General Power of Attorney was not produced along the miscellaneous petition and there is absolutely nothing on record to believe that petitioners are represented by their General Power of Attorney.

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Undisputedly, the petitioners were represented by their General Power of Attorney in the suit and copy of the General Power of Attorney was produced by the petitioners while filing the suit in O.S.No.228 of 2005. RW.1 has categorically admitted that suit in O.S.No.228 of 2005 was filed by P.W.1 H. Ravishankar in his capacity as the General Power of Attorney holder of the petitioners. Suit is filed seeking the

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HC-KAR

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relief of declaration and permanent injunction in respect of immovable property and if the parties are not given opportunity to put forward their case and to get their rights adjudicated, they will be put to untold hardship and injury. The Court should normally be liberal while considering an application filed to recall the order wherein the case is dismissed for non prosecution, unless it is found that there is inordinate delay in filing such an application.

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The inconvenience caused to the other side if any can be compensated monetarily. Under the circumstances, I am of the opinion that the orders impugned passed by the trial Court is liable to be set aside with appropriate costs imposed on the petitioners which shall be paid by the petitioners to the defendants before the trial Court.

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Accordingly the following:-

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ORDER

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i. Writ petition is allowed subject to payment of cost of Rs40,000/- (Rs.10,000/- each to the defendants) by the next date of hearing.

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ii. The impugned order dated 14.06.2011 passed in O.S.No.228 of 2005 by the Court of Principal

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HC-KAR

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Civil Judge (Sr.Dn), Bengaluru Rural District vide Annexure-A and the order dated 12.12.2018 passed in Misc.P.No.49 of 2011 by the Court of I Addl. Senior Civil Judge, Bengaluru Rural District are set aside. Consequently, suit is restored to file.

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iii. Since the parties are represented before this Court by their respective advocates, parties are directed to appear before the trial Court on 01.12.2025 without awaiting further notice from the trial Court.

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iv. Since the suit is of the year 2005, the trial Court shall make endeavours to dispose of the suit on merits as expeditiously as possible.

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Peding IAs' do not survive for consideration and accordingly, the same are disposed of.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS

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List No.: 1 Sl No.: 23

Smt Varanandamma (Dead) v. Smt Lakshmamma

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Smt Varanandamma (Dead) v. Smt Lakshmamma

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