Basirkhan, Sarvarkhan Since deceased by his L.Rs. (Jajirkhan and Others) and Rahimkhan vs Channabasappa and Hanifsab

Ravi Malimath, J.—Petitioner filed O.S. No. 237/1999 seeking for a decree of declaration and permanent injunction against two defendants. By the judgment and decree dated 13.2.2003, the suit was decreed holding that the plaintiffs are the owners of the suit property. It was further ordered that the defendant No. 1 or anybody on behalf of defendant No. 1 are permanently restrained from interfering or obstructing the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. Thereafter the 2nd defendant filed Civil Misc. No. 5/2004 under order 9 Rule 13 of CPC seeking to set aside the judgment and decree. By the order dated 25.4.2009, it was dismissed. Thereafter he filed Misc. Appeal No. 10/2009 questioning the said order. The appellate Court by its order dated 11.1.2013 allowed the appeal, set aside the order passed by the Miscellaneous Court and restored the suit. Aggrieved by the same, the plaintiff filed the present petition. Learned counsel for the petitioners submit that there are no grounds to allow the appeal. That the lower Court has committed an error in allowing the appeal. That the decree was not against both the defendants, but it was only against the defendant No. 1. Miscellaneous petition was filed by the 2nd defendant. Hence the appellate Court has committed a blunder in allowing the appeal.

Learned counsel for the respondent No. 1 contends that he had acquired the right over the suit schedule property and that his brother has been declared to be the owner of the suit schedule property. Hence he had filed the application.

On hearing learned counsels, appropriate relief is required to be granted. Firstly, that the suit was filed against the defendants 1 and 2. The suit was decreed against the defendant No. 1 only. No relief was granted against the defendant No. 2. Therefore the miscellaneous filed by the 2nd defendant, should have been dismissed. Moreover, the suit has been decreed on 13.2.2003 and the miscellaneous was filed on 28.1.2004 i.e., 11 months 14 days later. The delay has not been properly explained. Even otherwise condoning the delay is improper. Firstly that the 2nd defendant has no right to maintain the miscellaneous. Either way the miscellaneous Court rejected the application. The Appellate Court on a total misconception of the facts allowed the appeal. It was of the view that the appellant therein has produced the judgment in O.S. No. 69/2004 c/w. O.S. No. 27/2004, wherein O.S. No. 69/2004 was decreed and O.S. No. 27/2004 was dismissed. Hence there are sufficient grounds for condoning the delay. This is the only reasoning of the trial Court. There is only a reference to the two suits. What are these suits, who has filed the suit and what is the relief claimed was not considered. When one suit was dismissed and the other was decreed, cannot be a ground to allow the appeal. The reasoning of the Appellate Court that opportunity has been given to the parties is wholly misplaced. In fact the reasoning for the respondent is that they came to know of the judgment and decree only on 14.1.2004. Thereafter within one month he filed a miscellaneous petition. Therefore there is no delay. It is his case that during the pendency, there were talks regarding compromise of the matter. It was for these reasons that the miscellaneous petition was filed belatedly. That if the suit is compromised, the party is required to know of the same. Except these reasons nothing else is stated by him. The miscellaneous Court has rightly rejected the petition. The appellate Court by relying on material not produced before the miscellaneous court and without any substantial reasoning has allowed the appeal. I am of the view that the reasoning assigned by the appellate Court is unsustainable and the impugned order passed is erroneous. Consequently the revision petition is allowed. The order dated 11.1.2013, passed in M.A. No. 10/2009 by the Addl. Senior Civil Judge, Ranebennur, is set aside.