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Judgment
A.N. Venugopala Gowda, J.—With consent of the learned Counsel on both sides, since LCR is received, the appeal is heard for final disposal.
The Appellant filed O.S 128/1982 against the Respondents in the City Civil Court, Bangalore, for passing a decree of declaration of his title and for mandatory injunction and other reliefs in respect of plaint schedule property. Some of the Defendants having passed away, their legal representatives are brought on record. The suit was decreed on 13.11.1990. The Defendants questioned the said decree in RFA 400/1992, which was allowed on 04.03.1999 and the matter was remanded to the Trial Court. The Appellant after receipt of court notice, engaged Sri B. Veerabhadrappa, advocate, who filed the vakalath on 20.07.2000. Sri B. Veerabhadrappa died on 22.01.2001 The suit was dismissed for non-prosecution on 30.03.2001.
A Misc. petition was filed by the Appellant on 17.04.2001 under Order 9 Rule 9 Code of Civil Procedure, to set-aside the said order passed in O.S. No. 128/1982 and to restore the suit. I.A.I was filed seeking condonation of delay in filing the Misc. Petition. 3rd Respondent filed statement of objection and contested the petition. A power of attorney holder of the Appellant deposed as PW-1, through whom Exs. P-1 to P-3 were marked. For the Respondents, a power of attorney holder of 3rd Respondent deposed as RW-1, through whom Exs.R-1 to R-5 were marked. Considering the rival contentions, and noticing the judgment passed in RFA 400/1992 dated 04.03.1999, whereby, the Trial Court had been directed to dispose off the suit by end of September 1999, the records of the case having been received by it only on 31.03.2000 and there being delay in service of court notice and the absence of PW-1 for cross-examination on 12.02.2001 as well as on 19.02.2001, it was held that, the Petitioner is not diligent in prosecuting the suit and observing that, there is no bonafides in filing the petition with delay of about two months, the Misc. Petition for restoration of the suit was dismissed. Aggrieved, the Plaintiff has filed this appeal.
Sri K. Shashi Kiran Shetty learned Counsel appearing for the Appellant by stating the facts and after referring to the record of the case, contended that, the Court below has adopted a hyper-technical approach to the matter and ignoring the material fact that the Appellant''s advocate Sri B. Veerabhadrappa had passed away and the Appellant had no knowledge of the adjourned dates, on account of demise of his advocate, his absence being bonafide, the dismissal of the Misc. Petition filed for restoration of the suit is perverse and illegal. Learned Counsel contends that, the Court below has acted mechanically in the matter and on any view of the matter, the impugned order calls for interference.
Sri N.J. Ramesh, learned Counsel appearing for the Respondents, on the other hand contended that, Appellant was negligent in prosecuting the suit and in view of the judgment in RFA 400/1992 dated 04.03.1999, wherein there was a time bound direction to decide the suit, PW-1 having not made himself available for cross-examination on 12.02.2001 & 19.02.2001, the Court below was justified in dismissing the suit for default. According to the learned Counsel, the petition filed seeking restoration being untenable, the Appellant having failed to make out sufficient cause for non-appearance of either himself or PW-1 on 19.02.2001, the Court below is justified in passing the impugned order.
I have perused the record.
The suit was decreed in favour of the Appellant on 13.11.1990. The decree was set-aside in RFA 400/1992 on 04.03.1999, the matter was remitted to the Trial Court to dispose off the case within four months and the parties were directed to appear before the Trial Court on 24.06.1999. The records having not been received, the matter was not taken up by the Trial Court on 24.06.1999. The record of the suit was received by the Trial Court on 31.03.2000. The suit having been taken up thereafter, the Appellant entrusted the file to Sri B. Veerabhadrappa, advocate. Indisputedly, Sri B. Veerabhadrappa was hospitalised for few months and passed away on 22.01.2001. The suit was dismissed for non-prosecution on 19.02.2001, by noticing the absence of PW-1 and also taking into consideration the time limit fixed for disposal of the case vide judgment dated 04.03.1999 passed in RFA 400/1992.
The fact that Sri B. Veerabhadrappa was engaged by the Appellant, hospitalisation of Sri B. Veerabhadrappa for considerable time immediately prior to his death on 22.01.2001, are not in dispute. The Appellant having come to know of dismissal of the suit and having obtained certified copies has filed the Misc. Petition seeking restoration of the suit. Except the 3rd Respondent, others did not file objections to the Misc. Petition. The evidence of PW-1 would show that, Sri B. Veerabhadrappa having passed away and there being no communication from the office of Sri B. Veerabhadrappa with regard to the stage and hearing dates, PW-1 has not appeared on 19.02.2001. The Court below has held that, by causing delay of about two months, the restoration petition was filed. The affidavit in support of I.A.I and the evidence of PW-1 would show that, there was no knowledge of dismissal of the suit on 19.02.2001 and soon after coming to know of the order of dismissal dated 19.02.2001, certified copies were applied and obtained the Misc. Petition was filed without any delay. Evidence of PW-1 has not been correctly appreciated.
In my view, the approach of the Court below to the matter is hyper-technical. Indisputedly, the Appellant had engaged the services of Sri B. Veerabhadrappa, advocate, who passed away on 22.01.2001. There being no communication from the office of Sri B. Veerabhadrappa with regard to the stage and hearing date of the suit, the Appellant or power of attorney holder have not appeared and the suit was dismissed for default on 19.02.2001. When the factual assertions made in the pleading and deposed by PW-1 are not in serious dispute, the Court should have allowed the prayer made in the restoration petition and taken the suit on board and decided the same. It is not the case of the Respondents that there was any deliberate act on the part of the Appellant in not appearing before the court on 19.02.2001 and allowing the suit to be dismissed. Plaintiff/Appellant is not shown to have gained anything on account of the dismissal of the suit for default. The record has not been correctly appreciated. The Appellant has made out sufficient cause for condonation of delay and also to allow the restoration petition. The Trial Court has failed to exercise the jurisdiction vested in it. The Trial Court has preferred technicalities as against substantial justice and as a result, has passed the impugned order, which is unsustainable.
The delay in filing Misc. Petition 357/2001 is not deliberte. The Appellant has not gained by a short delay in filing the restoration petition. The Respondents have not established any malafides on the part of the Appellant in filing the restoration petition belatedly. The cause shown for the delay constitutes sufficient cause. It is trite that, technicalities should be ignored and substantial justice should be done, if necessary by compensating the other side with costs. The Trial Court has acted vice-versa. Under the circumstances, the impugned order is unsustainable.
For the foregoing reasons, the appeal is allowed and the impugned order is set-aside. I.A.I filed in Misc. Petition 357/2001 on the file of City Civil Court, Bangalore, is allowed and the delay in filing the Misc. Petition is condoned. Being satisfied with the cause shown for nonappearance of the Plaintiff on 19.02.2001 when O.S 128/1982 was called on for hearing, the order dated 19.02.2001, dismissing the suit for non-prosecution is set-aside and as a result, the suit stands restored to file subject to the Appellant/Plaintiff depositing cost of Rs. 5,000/-in the Trial Court before 30.06.2011, which is to be released in favour of Defendants and the LR''s.
The parties are directed to appear before the Trial Court on 02.07.2011 and receive further orders.
The Trial Court to proceed with the suit from the stage at which it was pending as on 19.02.2011 and decide the suit expeditiously and at any event within an outer limit of 4 months commencing from 02.07.2011.
Return the LCR Trial Court forthwith.