IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17 TH DAY OF OCTOBER 2014 BEFORE THE HON BLE MR. JUSTICE S.N. SATYANARAYANA BETWEEN CIVIL REVISION PETITION No.1020/2013 SIDDANAGOUDA S/O VENKANAGOUDA PATIL, AGE: 63 YRS, OCC: AGRIL, R/O ASUTI, TQ: RON, DIST: GADAG-583101... PETITIONER (BY SRI CHANDRASHEKAR P PATIL, ADV.) AND 1. CHOODAPPAGOUDA S/O SIDDANAGOUDA PATIL, AGE: 73 YRS, OCC: RETIRED TOWN PLANNING OFFICER, NEAR KVSR COLLEGE, INFRONT OF CHURCH, MASARI ONI, H.NO. 32, NGADAG - 583101 2. MALAKARJUNAGOUDA S/O CHOODAPPAGOUDA PATIL, AGE: 32 YRS, MASARI ONI, H.NO. 32, GADAG-583101... RESPONDENTS (NOTICE TO R-1 AND R-2 IS HELD SUFFICIENT)
2 THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 17.08.2012 PASSED IN M.A.NO.9/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, RON, DISMISSING THE PETITION FILED U/O. 9 RULE 9 OF CPCP. THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING : ORDER This petition is filed impugning the judgment dated 17.08.2012 passed in M.A.No.9/2009 on the file of Senior Civil Judge, Ron wherein the order dated 17.11.2009 passed in Civil Misc.Case No.15/2003 filed under Order 9 Rule 9 of C.P.C. seeking restoration of O.S.No.26/2000 on the file of J.M.F.C., Ron is dismissed. 2. The brief facts leading to this petition are as under: Petitioner herein is plaintiff in O.S.No.26/2000 on the file of Civil Judge (Jr.Dn.) Ron which was filed by him against one Smt. Shantabai W/o. Choodappagouda Patil for the relief of declaration and injunction in respect of plot bearing Sy.No.215 of Asuti village of Ron Taluk. In
3 the said suit, in spite of sufficient opportunity given to the plaintiff, he did not take steps for service of summons to sole defendant Smt. Shantabai. Since he did not comply with the direction of the Court for a period of almost 3 years from the date of filing of the suit, the trail Court felt that the plaintiff in the original suit is not interested in prosecuting the same. Accordingly, dismissed the said suit for non-prosecution by order dated 21.11.2003. The said order was sought to be challenged by filing Civil Misc. No.15/2003 before Senior Civil Judge, Ron, seeking restoration of the original suit in O.S.No.26/2000. 3. During the pendency of Civil Misc. No.15/2003, the defendant in original suit namely Shantabai died resulting in her legal heirs coming on record as respondents 1A to 1C. In the said proceedings, though respondents 1A to 1C entered appearance neither respondent nor her legal heirs filed any objections nor they adduced any evidence in Civil Miscellaneous proceedings filed seeking restoration of the suit. The trial
4 Court by observing that there is admission on the part of petitioner with reference to sufficient opportunity being given to him and the same is not utilised, held that the question of restoring the suit dismissed for default does not arise. Accordingly, dismissed the Civil Misc.No.15/2003 by order dated 1711.2009. 4. The said order of dismissal of Civil Misc. No.15/2009 was challenged before the Court of Civil Judge (Sr.Dn.), Ron in M.A.No.9/2009 by the plaintiff in the original suit. The Miscellaneous Appeal also came to be dismissed on 17.08.2012. The dismissal of miscellaneous appeal in M.A.No.9/2009 by judgment dated 17.08.2012 is sought to be challenged in this proceeding. 5. Heard the learned counsel for the petitioner. Perused the orders of both the Courts below. On going through the same along with the grounds urged in this revision petition, it is clearly seen that there is absolute carelessness on the part of the plaintiff in pursuing the original suit filed by him in O.S.No.26/2000 wherein he
5 failed to take steps for service of summons on the sole defendant Smt. Shantabai in spite of granting more than 3 years time. In that view of the matter, it is seen that the trial Court has dismissed the original suit. In the miscellaneous appeal also the Court below is carried away by the fact that no steps were taken by the plaintiff in service of summons to defendant and bringing her legal heirs on record to pursue the proceedings on merits. In that view of the matter, both the Courts below have confirmed the order of dismissal for non-prosecution. 6. However, in this revision petition after hearing the petitioner, this Court is of the opinion that if the application filed under Order 9 Rule 9 of C.P.C. is dismissed and confirmed in this revision, the plaintiff in original suit who is the petitioner herein would be loosing his right on valuable property which requires adjudication with regard to his claim for declaration and also for permanent injunction. The dismissal of this petition on technicalities would definitely cause hardship to the
6 plaintiff. In that view of the matter, to provide one more opportunity to the plaintiff in original suit who is petitioner herein the judgment dated 17.08.2012 passed in M.A.No.09/2009 as well as the order dated 17.11.2009 in Civil Misc. No.15/2003 are hereby set aside. Consequently, the order of dismissal of the suit dated 21.11.2003 is recalled and the original suit in O.S.No.26/2000 is restored to the file of Civil Judge (Sr.Dn.) Ron. 7. The suit in O.S.No.26/2000 is referred back to the said Court to decide the said suit on merits and dispose of the same after giving sufficient opportunity to the respondents 1 and 2 herein. In the said proceedings, summons is required to be issued to the legal heirs of the deceased original defendant Shantabai and the legal heirs who are on record as respondents 1 and2 shall be arrayed as defendants 1A and 1B and the said suit shall be disposed of on merits at the earliest.
7 8. While allowing this revision petition, it is also made clear that the suit in O.S.No.26/2000 shall be listed before the Court of Civil Judge (Sr.Dn.), Ron on 24.11.2014, on which day, the petitioner herein who is plaintiff in the said suit shall appear before the Court along with his counsel and shall take necessary steps for service of summons to the defendants. 9. With aforesaid observations, this petition is disposed of. Naa SD/- JUDGE